U.S. Supreme Court Justice Louis Brandeis wrote in 1913 that “sunlight is said to be the best of disinfectants,” and Bay Staters on both ends of the political spectrum agreed this week that Beacon Hill could stand to open the curtains quite a bit more.
Massachusetts is the only state in the country where the governor’s office, the Legislature, and the judiciary all claim that they are exempt from the public records law. Sunday, March 10 kicked off Sunshine Week, an annual event meant to promote openness in government, giving interest groups and government offices alike an opportunity to call attention to the good, the bad, and the ugly of transparency and accountability in state government.
“Research shows that freedom of information improves people’s lives and encourages government to be more accountable, cost-effective, and honest,” David Cuillier, director of the Brechner Freedom of Information Project, said late last year when his organization took over coordination of Sunshine Week.
As Sunshine Week got under way, Progressive Massachusetts pointed out that the Massachusetts House of Representatives has taken fewer than half as many recorded votes so far this session than it had in any of the previous six legislative sessions. The House took 202 roll calls by March 11, 2012; 297 roll calls by March 11, 2014; 206 roll calls by March 11, 2016; 313 roll calls by March 11, 2018; 164 roll calls by March 11, 2020; and 155 roll calls by March 11, 2022, the group said.
As of the beginning of this week, the House had recorded 81 roll call votes this legislative session.
The trend has been similar, but not quite as dramatic, in the Massachusetts Senate. Progressive Massachusetts said the Senate had taken 186 roll calls by March 11, 2020, then 135 roll calls by March 11, 2022, and had taken 114 roll call votes so far this session as of the start of the week.
“So much of the legislative process occurs behind closed doors, and recorded votes are a critical opportunity for legislators to show the public where they stand. When the House refuses to bring up votes until they are unanimous and when legislators withdraw their amendments without discussion or debate, we lose out on opportunities to make progress on the many critical challenges facing the Commonwealth,” said Jonathan Cohn, policy director of Progressive Massachusetts.
A New Way Of Legislating
The data from Progressive Massachusetts caught the attention of the Massachusetts Republican Party. Amy Carnevale, the party chairman, suggested the drop is related to a recent trend on Beacon Hill: Democratic leaders increasingly prefer to pack various policy ideas into giant omnibus pieces of legislation rather than considering multiple discrete bills, creating a dynamic where lawmakers face all-or-nothing votes.
“This tactic coerces legislators to support these far-reaching bills because they include provisions relevant to their constituents, even if they would otherwise oppose all other aspects of the legislation,” Carnevale said. “Such maneuvering leads to poor policy-making, as it compromises legislators’ positions and undermines true representation. Ideally, each policy initiative should be addressed through separate legislation, enabling voters to make informed decisions based on their representatives’ stances on key matters.”
Erin Leahy, executive director of Act on Mass, also called attention to the change and gave voice to the fact that rank-and-file members of the Legislature recognize how the new dynamic gives leadership an even tighter grip on the legislative process.
“Legislating is increasingly done with few, near-unanimous votes on mega-bills with dozens of policy items, and to request a roll call on an amendment not preordained by leadership is considered a transgression. We shouldn’t just be troubled that there are fewer roll call votes, but that those votes in and of themselves have become largely ceremonial,” Leahy said. “How can a legislator represent the will of their constituents when they rarely take votes? And how can a legislator represent their constituents when they are convinced that the votes they do take can’t change the outcome? The floor is now more a stage for political theater than it is for genuine debate and decision-making.”
Act on Mass and Progressive Massachusetts both support a bill (S.1963) filed by state Senator Jamie Eldridge (D-Acton), the so-called Sunlight Act. That bill would require that all recorded votes in legislative committees be posted on the Legislature’s web site, that committee hearings be scheduled at least a week in advance, and that written testimony submitted to committees be publicly available. It got a favorable report from the Joint Committee on Rules in January 2024.
Most legislation goes through committees before it reaches the House or Senate floor, making those panels initial gatekeepers of sorts. When a bill is voted out of committee — either favorably, unfavorably, or attached to a dead-end study order — it is often difficult to find out how individual members of the committee voted, or what arguments were made for or against any bill.
Committees used to regularly hold executive sessions, in-person public meetings at which members would verbally vote to recommend bills pass or not. There were even days when debate on motions to give a bill either a favorable or unfavorable report wasn’t uncommon. But most committee votes take place now by way of electronic polls, where the Democrat chairmen ask members if they agree or disagree with a recommended action, with no public notice.
There have been efforts in recent years to open the Legislature up some, but most often those have revolved around the Joint Rules that generally govern interactions between the House and Senate. But the entire Legislature has failed since 2019 to agree to a new set of Joint Rules, as Democrats in closed-door negotiations can’t agree things like whether to broaden access to public testimony and provide more information about how individual committee members vote on bills.
The Massachusetts Fiscal Alliance, a right-leaning group that regularly needles Democratic leaders about what it sees as unfulfilled pledges of transparency, mentioned the rise of polls in its own Sunshine Week statement.
“When we called out lawmakers for not making ‘all’ of their votes available to the public, they began to claim some votes are not votes but a ‘poll’ of the members,” the group said.
“There is no other state in the country that needs a greater reminder of the virtues of increased government transparency as much as Massachusetts. The State House has become so broken that the citizens need to pass a ballot question to compel the legislature to be audited,” MassFiscal spokesman Paul Craney said, referring to the effort being led by the state auditor, Diana DiZoglio, that has attracted bipartisan support. “It doesn’t get any worse than this.”
Public Records Exemptions
Eldridge’s bill would also subject the governor’s office to the public records law — retroactive for all of Governor Maura Healey’s time in office. The idea of making the governor’s office subject to the public records law is something that the Massachusetts Fiscal Alliance, Act on Mass, Progressive Massachusetts, and the Pioneer Institute all agree on.
“I think we do need that,” Eldridge said in January of eliminating the governor’s exemption. “There’s so many policies — whether it’s the Steward health care crisis, to climate action policies, to budget crises — that the fact that we don’t know some of the communication or some of the discussions happening means that the public or other elected officials don’t know what’s going on.”
As governor-elect, Healey was quick to answer “yes” when asked if she would break from past practice and not claim exemption from the state’s public records laws as governor. But she has since claimed several exemptions when some documents have been requested by reporters and the governor last year suggested that she is not too happy about getting mixed reviews for transparency.
“I said at the outset that I was going to do everything that I could as governor to be as transparent with the public as possible, and that included not just doing what is under law my right — right now, the law doesn’t apply to me in terms of public records — but I did comply, of course, as I had to as attorney general, and I said that I was going to continue in that vein,” Healey said in August 2023.
Despite all the calls for even greater transparency, Beacon Hill has recently taken some steps to be more accessible to citizens. The Legislature now holds hybrid hearings, allowing people an opportunity to testify before lawmakers virtually and without needing to get to Boston, and all sessions of the House and Senate are now livestreamed. Many state agencies have continued to hold virtual or hybrid meetings.
The ACLU of Massachusetts used Sunshine Week to highlight its support for a bill (H.3040/S.2024) that would require public bodies to hold hybrid meetings in most cases, an idea co-sponsored by more than 60 lawmakers.
And there were some in state government this week who wanted to highlight their work around transparency. Comptroller William McNamara’s office said openness in government “offers many benefits for the government and citizens, including helping increase government efficiency and effectiveness” and said it would be highlighting the resources it offers, like the statewide payroll database and its online public records portal. Secretary of State William Galvin’s office also put out a rundown of its public records work in the last year.
“Transparency promotes efficiency and effectiveness in government,” McNamara said. “We join in this celebration of Sunshine Week and hope that residents of the Commonwealth of Massachusetts take this opportunity to use the resources we provide to become better informed about government finance.”
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