This story was originally published April 20, 2014.
It was a rare moment on Beacon Hill.
Just 31 hours after the Massachusetts Supreme Judicial Court ruled that state law did not specifically ban taking photos up women’s skirts, the House and Senate unanimously passed a bill outlawing the snapping of covert sexual photos.
That speedy passage stands in stark contrast to what happens to the overwhelming majority of proposed bills in the Bay State: they go nowhere.
From January 2011 through last month, the Massachusetts Legislature enacted 945 bills – just 5 percent of nearly 17,600 proposed. Only New York, New Jersey, and Minnesota passed a smaller percentage of proposed legislation in that time, according to data compiled from the LexisNexis website Statenet.com.
“It’s more of a top down process in Massachusetts which, as a consequence, cannot handle as much volume,” said former Republican Massachusetts House member Dan Winslow, who resigned last year to take a better-paying private sector job.
Typically, he said, bills move through a legislature “like a pipeline – stuff comes in, stuff comes out; but in Massachusetts it’s more of a funnel, where it gets down to a choke point, where only a handful of people – the leadership in the House and the Senate – really get to decide what becomes law ... and they have priorities.”
State legislators defend their record, saying it’s unfair to zero in on the percentages of bills passed. Instead they say focus should be on what substantive legislation has been passed in recent years, noting successes such as municipal health reform, an anti-bullying act and a 2012 economic development bill.
“The success of a legislature is not measured numerically like a scorecard but on the basis of groundbreaking, substantive pieces of lawmaking that save cities and towns money, preserve and create jobs, and improve peoples’ lives,” House Speaker Robert DeLeo said in a statement.
But an analysis by the New England Center for Investigative Reporting shows the vast majority of bills passed in Massachusetts have no statewide impact. Since the beginning of the last full legislative session in January 2011, only 21 percent of the enacted bills impacted residents throughout the state. The rest had strictly limited scope, including 466 that applied to one community, 158 that created what’s called a sick-leave bank for a single state worker and 78 that granted liquor licenses.
Few other states deal with local issues to that extent, said Geoff Beckwith, executive director of the Massachusetts Municipal Association.
“We would certainly want to have more local authority to make these decisions and not have to go to the state,” he said. But as things are, Beckwith said, Massachusetts’ cities and towns must go to the state legislature for “relatively routine but distinct and frequently complex issues.”
Meanwhile, some statewide legislation gathers dust in committees, like the so-called “Bottle Bill.” Groups from the Sierra Club to the state Office of Energy and Environmental Affairs have pushed for years to expand the law to include redeemable nickel deposits for bottles of water, sports drinks, and other non-carbonated beverage containers, to no avail. Similarly, bills to establish an interagency child welfare task force, protect the privacy of consumers’ financial information, and increase penalties for the illegal possession of firearms have been in committees for more than a year.
In Washington, the legislative gridlock is blamed on an impasse between Republicans and Democrats. But in Massachusetts, where Democrats rule, critics say the reasons for the slow passage speaks more to arcane legislative traditions and in recent decades a concentration of power among just a few elected politicians.
Winslow said the Massachusetts Legislature isn’t efficiently passing meaningful bills because, within the walls of the State House, there's an institutionalized culture of complacency, in which members act only with the approval of Democratic leadership. Winslow said he and other Republicans were often shocked when they would sit down to vote next to Democratic colleagues who appeared “completely in the dark” about the legislation they were considering.
"All they really needed to know was which way the speaker was going to vote on a given bill," he said.
Peter Ubertaccio, director of the Joseph Martin Institute for Law & Society at Stonehill College in Easton, agrees and says that power has concentrated around the House Speaker and Senate President over the last 30 years. Chairs of legislative committees, meanwhile, have gotten weaker, he said.
"Instead of having multiple centers of power in the legislature, we tend to have now two," Ubertaccio said.
Measures of inefficiency
Elsewhere in New England, legislators can and do move more swiftly. Maine passed 40 percent of its 3,757 proposed bills in the last three years. In New Hampshire, legislators proposed 3,297 bills, enacting 26 percent of them.
Critics say that archaic traditions in Massachusetts are one factor contributing to the slow pace of passage. For example, any citizen can propose a bill – but there's no way to know how often that happens, since residents send proposed bills through their legislator. The commonwealth’s legislators also formally read bills on the floor up to five times, while, in other states, it can be as little as two.
"We're a very traditional state that likes its traditions that were formed in our early years when we were the cradle of liberty,” said Pam Wilmot of Common Cause Massachusetts. “So the chances of the legislature saying ‘we're going to modernize and get rid of this stuff’ is fairly insignificant."
Politicians also do not appear to be overly deliberative. From January 2011 through the end of March, the House met in floor session for an equivalent of 69 8-hour days, while the Senate met for 43 8-hour days, according to information compiled from legislative journals. On more than half the days they met, legislators were in session for less than a half an hour.
Massachusetts’ legislators earned a base yearly salary of $60,033 as members of one of the 10 full-time state legislatures in the country. Only 10 states pay legislators more, according to the National Conference of State Legislatures.
Nearly 42 percent of representatives and senators in Massachusetts receive an additional stipend for leadership positions, totaling more than $1 million, according to an analysis of figures provided by the State Treasurer’s office. The largest stipends of $35,000 each go to the House Speaker and Senate President.
The Chairmen of the Ways and Means Committee receive a $25,000 annual stipend; Majority and Minority leaders take home $22,500 on top of their salary; while assistant floor leaders, division chairmen, and a handful of committee chairs, vice chairs, and ranking minority members earn $15,000 each. All other committee chairmen are paid $7,500 stipends. Representatives and senators also can claim as much as $100 a day in reimbursable travel expenses and more than $7,000 a year for office costs.
There is no discernable pattern in the amount of time it takes to pass legislation. Of the 198 bills enacted since January 2011 with statewide impact, about a fourth took a month or less for the legislature to do its work and the governor to sign; another fourth waited 16 to 24 months for approval; and the rest fell somewhere in between.In all, taxpayers spent $57.2 million in fiscal 2013 and $40.5 million through March of fiscal 2014 to run the legislature and employ 1,102 people in the House and Senate, according to the Massachusetts Executive Office for Administration and Finance.
Once a bill is proposed, its fate is often determined in a committee that is supposed to analyze, debate and ultimately decide if the bill should move forward for a full vote. But some legislators complain that the House Speaker and Senate President control what happens in committee.
“The chairs feel accountability to the people who've appointed them," said Senate Minority Leader Bruce Tarr.
By controlling when a committee goes into executive session to vote on a bill, Tarr said chairs essentially determine which bills make it to the full floor.
"You actually have to convince the chairs, one, to hold an executive session, and, two, to take up the matter you're interested in at that executive session,” Tarr said. “And in that scheduling function there is a tremendous amount of power either to move legislation or to delay legislation."
Tarr said committees also delay legislation by committing bills to indefinite "study." Committees must deliver bills to the floor by a certain date, but Tarr said chairs regularly ask for extensions. For example, last month the House voted to extend until June 30 the deadline for the Judiciary Committee to report on 800 bills. Tarr said he often tries to find out why a bill's time in a committee has been extended, and is simply told it’s “stuck.”
“I suspect that very frequently from the beginning the fix is in, and that the time that it takes is simply used up with routine attempts to gather information that are never going to yield anything other than the predetermined outcome,” said David Tuerck, executive director of the Beacon Hill Institute at Suffolk University.
But the Speaker and President can’t snap their fingers and get legislation passed, said former Massachusetts Inspector General Greg Sullivan, who served in the legislature for 18 years. They still need cooperation from members, he said. Consequently, Sullivan said, delay has become one of the most powerful tools individual legislators can yield.
"They want to delay,” Sullivan said. “They use delay as a means of defeat of legislation. And that's always in play."
Lawmakers achieved the feat of passing—in one day—a ban on covert sexual photos because there was virtually unanimous support for the measure and it didn’t require funding, Common Cause’s Wilmot said. And she believes it might be a good thing the Massachusetts legislature doesn’t usually move that fast.
“I think we sometimes underestimate the difficulty of this undertaking… Many of these decisions are not easy – there are many competing interests to balance,” she said. "Are there things that I’d like to see? Absolutely. We’d like to have more citizen participation in the process. And speed would actually make that more difficult. If everything passed in a day, there would be no way in.”
