Testimony submitted to the Commission on Facial Recognitionon July 30, 2021
Senator Jamie Eldridge and Representative Michael S. Day, Co-Chairs
Public Comment
Government Use of Facial Recognition Technology
Dear Senator Eldridge, Representative Day, and members of the commission,
I am writing as the Issues Committee Chair of Progressive Massachusetts to provide some comments about the use of facial recognition technology in Massachusetts. We respectfully ask that the Commission recommend the legislature strengthen existing facial recognition law to ensure Massachusetts residents and visitors are shielded from discriminatory, dragnet surveillance and other harms.
Progressive Massachusetts is a statewide grassroots advocacy group fighting for a Massachusetts that is more equitable, just, sustainable, and democratic. We are appreciative of the work that the Legislature did last session in passing police accountability legislation that created better standards for police professionalization as well as stronger limitations on the use of force. But there is more work to be done.
The law, codified in Chapter 253 of the Acts of 2020, contains several provisions pertaining to government agencies’ use of facial recognition technology.
While we support some of those provisions, namely the creation of this Commission, the regulations governing police use of facial recognition fall far short of what we need.
We have the following key concerns about the current regulations:
They only regulate facial recognition technology as used by law enforcement agencies, neither prohibiting nor regulating when this technology can or cannot be used by public agencies of different nature, for example schools or local parks departments.
They do not establish any limitation regarding who can directly use and operate a facial recognition system and impose very weak standards governing police requests, court orders, and the use of the technology in criminal investigations.
They fail to provide any due process protections for defendants who have been subject to the use of facial recognition systems.
They lack any enforcement mechanism to ensure that public officials comply with the law.
Thankfully, lawmakers have addressed these and other concerns in legislation filed this session. H.135, An Act To Regulate Face Surveillance, sponsored by Representatives Rogers and Ramos, and S.47, An Act To Regulate Face Surveillance, sponsored by Senator Creem, provide for some useful policy solutions to the ones outlined above.
H.135 and S.47 would, among other steps, prohibit all public entities, including public schools, the department of transportation, and other public agencies in the Commonwealth, from using and possessing this technology; create a notice-and-disclosure framework that will let persons know when facial recognition was used to identify them; and establish an exclusionary rule that would apply when law enforcement uses facial recognition in a manner that does not conform with the law.
I encourage you to consider bills H.135 and S.47 when you decide on further regulations of the use of biometric surveillance technology by government entities. We need strong regulations to ensure it doesn’t infringe on our civil rights and civil liberties, and this legislation provides an excellent model.
Last year, the Legislature passed a police accountability bill that created better standards for police professionalization as well as stronger limitations on the use of force. It was a step forward, but there is much more to be done.
One such example? BanningFacial surveillance technologies.
Facial surveillance technologies are notoriously racist, inaccurate, and harmful. Rather than banning such practices, the bill offered only narrowly tailored regulations and created a Commission to study whether to do more.
They need to do more.
The Commission will be hearing public comment this Friday at 11 am.
Want to see stronger regulations of facial surveillance? You can sign up to give public testimony here — or submit written testimony here.
“If you build this prison, I guarantee you, women will be beaten. Women will be starved. Women will be raped. How does that make our community safer?” asked Caroline Bays, board president of Progressive Massachusetts, an organization that pushes for racial, social and environmental justice, at a legislative hearing on the bill Tuesday.
A representative of the Massachusetts Department of Correction said that no final decisions have been made regarding the future of MCI-Framingham or women’s correctional facilities in the state.
From 2011 to 2018, the average daily prison population in Massachusetts declined by 21 percent. At the same time, the state ramped up spending by 25 percent, taking the budget from $254 million to nearly $1.4 billion. Few of those extra dollars went to programs to reduce recidivism, according to a study by MassINC, the parent company of CommonWealth.
Testifying in support of the bill, Bays recalled visiting an incarcerated friend at Cedar Junction, a prison in Norfolk, and laughing—then sometimes crying—over the irony of a sign in the waiting room declaring the facility a place of rehabilitation. She said she knew the reality of what went on within those walls: beatings and assaults such as the one that permanently crippled her friend.
Bays pointed out that Massachusetts has one of the highest prison budgets in the country, despite housing one of the smallest populations of people behind bars. The Department of Correction spends about $70,000 per inmate annually. For about two thirds of that cost, a student could spend a year at Harvard University. “Instead of a prison, why don’t you build a university?” suggested Bays. “At the end [of the sentence, an inmate] would have a degree and a future instead of a black hole on their resume and more trauma to recover from.”
Tomorrow, the Legislature will hold a hearing on a bill to impose a five-year moratorium on the construction of new prisons and jails.
This is particularly urgent because the state wants to spend 50 million dollars to build a new prison to house just over 100 women, most of whom are safe to release to their homes and families.
This bill is personal because for the last five years I have been visiting a friend in prison, and I have watched with horror what prisons are really like and what they do to a person. My friend has endured torture unlike anything you can imagine — four years in solitary confinement, starvation, and assaults. The prisons here in Massachusetts are brutal, nightmarish places. As a system and institution for rehabilitation, they simply do not work.
The state says this new facility will be different — it will be a “trauma-informed” prison. But, in visiting Andrew over the last five years, I have learned that there is no such thing as a trauma-informed prison because when a person has no autonomy or freedom in their life and when other human beings have complete and total control over them, there can be no progress towards rehabilitation and no healing from past trauma. We have an opportunity to use this five-year moratorium to reimagine rehabilitation. It costs less to send someone to Harvard then it does to keep someone imprisoned in our state. Think of how much money we could save, how many people could be healed if we were putting that $50,000,000 into education, into therapy, into affordable housing, or even just into food to feed hungry babies.
Every time I visited my friend, I would look at the sign on Cedar Junction’s waiting room that said the goal of the prison was rehabilitation. Sometimes when I read that sign, I would laugh at the absurdity of it, sometimes I would cry at the false promise of it. Massachusetts has an opportunity to think outside the box. We can come up with another alternative for treating people — people who have harmed others and themselves. But inflicting cruel punishment and torture does not make anyone safer. Instead we can approach solving this problem with true compassion and real rehabilitation.
PS: For more information, check out this helpful toolkit from Families for Justice as Healing, Building up People Not Prisons, and the National Council of Incarcerated and Formerly Incarcerated Women and Girls.
In her book Don’t Blame Us: Suburban Liberals and the Transformation of the Democratic Party, Lily Geismer traces the evolution of modern liberalism by focusing on the suburban organizing along the high-tech corridor of Route 128 around Boston in the 1950s and 1960s. Surveying political fights around fair housing, education, war/peace, and land use, Geismer explores both the possibilities and limitations of such organizing, with important lessons for activists of today.
What can we learn about the political landscape in our state, and how can the history of such organizing inform our work today? Worcester School Committee Member Tracy O’Connell Novick will facilitate the discussion.
In 2020, Massachusetts passed a police reform bill that created a standards and accreditation commission, put limits on the use of force, and took other steps to address systemic racism in law enforcement. But left out of the police reform bill was a simple realization: the best way to reduce the incidence of police brutality is to limit the scope of policing.
Too often, armed police officers are called in to respond to situations that they are not equipped to handle, situations that are better handled by someone with an expertise in social work or mental health or someone from the community itself. Shifting such calls away from police and towards alternative response programs ensures that situations do not escalate and that people can best be connected to the services that they need.
The ACES bill — An Act to Create Alternatives for Community Emergency Services (S.1552 / H.2519), filed by Sen. Sonia Chang-Diaz and Rep. Lindsay Sabadosa — would direct the Executive Office of Health and Human Services to establish and oversee the Alternatives for Community Emergency Services Grant Program (A.C.E.S.) to increase the availability of non-law-enforcement, unarmed community-based response options for calls to 911.
Yesterday, the Joint Committee on Public Health held a hearing on legislation to improve vaccination rates.
Over 15+ hours, the Committee heard from literally hundreds of individuals, including licensed medical professionals at Mass General Hospital and Tufts Medical Center, who espoused toxic disinformation about the safety and efficacy of vaccines, grossly distorted and flatly misstated the content of the Community Immunity Act, and personally attacked the character of any legislators and public health professionals who care about strong immunization policy and infectious disease prevention.
We need to make sure that the Legislature hears the voices of people who support science and public health. Here’s what you can do.
Copy the list of members of the Joint Committee on Public Health and send them an email like the one below — Or send a pre-filled email here.
Dear Chair Comerford, Chair Decker, and Distinguished Members of the Joint Committee on Public Health:
I write to express my strong support for S.1517/H.2271, the Community Immunity Act, filed by Senator Rausch and Representatives Donato and Vargas. You heard testimony on this critical legislation on Monday, July 12.As we endeavor to emerge from a global pandemic, I urge you to expediently advance the Community Immunity Act with a favorable report.
We need only look around to see the importance of widespread herd immunity (both localized and statewide) and the need to improve our public health infrastructure. Unfortunately, our current infectious disease prevention provisions leave gaping holes in our public health protections. Every corner of our Commonwealth faces a concerningly high rate of under- or unimmunized youth, threatening our communities’ health and safety. (Please consider these maps: https://www.beccarauschma.com/communityimmunitymap.)
The Community Immunity Act fixes the holes by creating the statutory immunization infrastructure our Commonwealth needs, without mandating vaccines or striking the religious exemption. I support this comprehensive bill because [insert your reasons here].
As our elected leaders, please embrace this once-in-a-generation moment to protect generations to come. I ask that you swiftly advance the Community Immunity Act out of the Public Health Committee with a favorable report. Please help to keep all of us safe and healthy, particularly people who are immunocompromised and rely on community immunity.
Thank you for your consideration and your service to the people of the Commonwealth.
Chairman Timilty, Chairman González, and Members of the Joint Committee on Public Safety and Homeland Security:
My name is Jonathan Cohn, and I am the Chair of the Issues Committee of Progressive Massachusetts, a statewide grassroots advocacy group fighting for a Massachusetts that is more equitable, just, sustainable, and democratic.
I am testifying today in support of S.1552 / H.2519: An Act to Create Alternatives for Community Emergency Services (ACES), filed by Sen. Sonia Chang-Diaz and Rep. Lindsay Sabadosa.
We are appreciative of the work that the Legislature did last session in passing police accountability legislation that created better standards for police professionalization as well as stronger limitations on the use of force. But there is more work to be done.
This bill recognizes two key points. First, the best way to reduce the incidence of police brutality is to limit police interactions (and, accordingly, the scope of policing). Second, we overwork police officers by asking them to do many tasks for which they are not trained to do. Police officers are not trained social workers or mental health professionals, and we neither serve the police or the community well by asking them to respond to situations in which a social worker or mental health professional — or even a member of the community — would be best fit to respond.
Acknowledging this fundamental, and sometimes tragic, mismatch, the bill would direct the Executive Office of Health and Human Services to establish and oversee the Alternatives for Community Emergency Services Grant Program (A.C.E.S.) to increase the availability of non-law-enforcement, unarmed community-based response options for calls to 911.
The ACES bill would encourage the creation of local systems for protecting the mental and physical well-being of residents, preventing violence, de-escalating volatile situations, ensuring access to human services, and reducing government use of force, in emergency and non-emergency situations that do not necessitate the presence of law enforcement personnel, or, where appropriate, the person requesting help requests a response from an alternative to law enforcement. And to ensure the appropriate use of funds, the bill requires timely evaluation to assess outcomes and costs, such as mental, physical, and behavioral health outcomes, impact on reduced demand for law enforcement response to 911 calls, and rate of successfully connecting residents with human services for which they present a need. Moreover, the bill recognizes that community-based organizations, rather than local law enforcement departments, are often the best-equipped to manage such work and do the work of building trust.
The American Rescue Plan authorized funding for alternative crisis programs. Massachusetts should embrace this opportunity to expand on police reform. De-escalation training and requirements are important. But some calls shouldn’t be going to the police at all.
Please give a favorable report to S.1552 / H.2519: An Act to Create Alternatives for Community Emergency Services (ACES).
Chair Comerford, Chair Decker, and Members of the Joint Committee on Public Health:
My name is Jonathan Cohn, and I am the Chair of the Issues Committee of Progressive Massachusetts, a statewide grassroots advocacy group fighting for a Massachusetts that is more equitable, just, sustainable, and democratic.
I am here today to testify in support of S.1517 / H.2271 (An Act promoting community immunity, or the Community Immunity Act) and S.1515 / H.2370 (An Act effectuating equity in COVID-19 vaccination, or the Vaccine Equity Bill).
The COVID-19 pandemic has shined a light on the weaknesses of Massachusetts’s public health infrastructure, and these bills are essential to both our short-term recovery and long-term stability and public health.
Although Massachusetts has vaccinated a greater share of our population than most other states, we still see wide regional discrepancies. As of last week, the percentage of eligible residents with at least one dose of the vaccine varied from a low of 62% in Hampden County to more than 100% in Dukes and Nantucket Counties, with sometimes wide gaps by race and ethnicity. [1] We see such gaps most strikingly in Hampden County, where there was a 20% gap between white and Latinx residents (with both numbers below the state average).
The Commonwealth’s Vaccine Equity Initiative is clearly not doing enough to close these gaps. Although parts of the Vaccine Equity Bill (S.1515/H.2370)’s goals may have been incorporated in part by now, its ambition and comprehensiveness have not, and we urge swift passage of the bill in order to strengthen our commitment toward public health, especially as new COVID-19 variants are on the rise.
As we work on the recovery to the current pandemic, it is vital for us to ensure a stronger and more stable public health infrastructure for the challenges to come. The Community Immunity Act will help us to do that.
We currently lack full and accurate reporting on vaccination rates among young people, relying instead on voluntary surveys of schools, summer camps, colleges, and daycares. The limited data available show alarming rates of under- and unimmunized children in communities across the Commonwealth.
We cannot fix a problem without an accurate read of it, and the Community Immunity Act’s data reporting requirements are a key first step. But the bill, as necessary, goes further, with targeted education and outreach about vaccine safety and efficacy and standardization and centralization of vaccination protocols.
Please give a favorable report to S.1517 / H.2271 (An Act promoting community immunity, or the Community Immunity Act) and S.1515 / H.2370 (An Act effectuating equity in COVID-19 vaccination, or the Vaccine Equity Bill).
At the start of the last legislative session, the MA House of Representatives had a spirited debate about transparency and the top-down nature of the House. That the House was having a robust debate about anything was a breath of fresh air, given the chamber’s aversion to showing division among members. But we also got to see progressive Democratic representatives roll call their own amendments about the rules of the chamber, in contrast to prior rules debates that had historically consisted of Democrats voting in lockstep to defeat a series of Republican-backed proposals. (Admittedly, the Republican caucus tends to actually be in favor of more open and small “d” democratic rules–even if they are not allies on the vast majority of policy).
At the start of the new session this year, the House decided to punt on voting on new rules, instead creating a task force to make recommendations and pushing off the discussion until July. It’s now July, and the House voted on a new set of rules yesterday. The task force had some positive recommendations, like continuing a recent reform that makes it easier to locate roll call votes on the Legislature’s website and supporting continued use of virtual participation accessibility to build on accessibility gains from the past year. But systemic issues were left untouched.
The House voted down a number of efforts to democratize the chamber, giving more power to the rank-and-file and the public vis-a-vis House Leadership. For now, we’ll focus on the three that relate to the priorities of the People’s House campaign because those three inspired the most active advocacy from grassroots activists and the vocal pushback from members of House Leadership. We’ll look at what state representatives said on the floor — and what your representative might be telling you — and why you shouldn’t buy it.
The Main Reason Why Your Representative Opposed a More Transparent & Accountable State House
The main reason why any representative voted no on any of these measures was that the Speaker opposed it, and they want to be in the good graces of the Speaker (and the Leadership team) because they think that unless they follow along, they will lose out on the budget or other legislative priorities. In reality, it’s not so clearly 1 to 1 (you can vote off and still get stuff done; you can not vote off and be left with nothing), but the fear of retaliation is not unfounded. Such a rationale is not incoherent and not dishonest, but it is flawed. And it merely reinforces the toxic power dynamic. (Curious to learn more about this? Check out episodes #4 & #5 of the Incorruptibles podcast.)
Representatives who are forthright will acknowledge this dynamic behind the votes, but many feel compelled to put forth arguments that stretch credulity instead.
Speaker Term Limits
Rep. Tami Gouveia (D-Acton) filed an amendment to reinstitute term limits for the Speaker of the House (a maximum of 8 years, four consecutive terms). The amendment failed 35 to 125, with only Rep. Mike Connolly (D-Cambridge), Rep. Nika Elugardo (D-Jamaica Plain), Rep. Russell Holmes (D-Mattapan), Rep. John Rogers (D-Norwood), and Rep. Erika Uyterhoeven (D-Somerville) joining Gouveia on the Democratic side.
The only compelling argument a representative could have put forth against Speaker term limits is that the House has already shown full willingness to repeal them when a Speaker reaches the term limit and wants to continue on (they did this in 2017–ironically, term limits had only existed because of a good government promise of former Speaker Bob DeLeo when he was vying for the job.)
But instead we got these arguments:
(1) We don’t have term limits for other offices, so this is discriminatory against the Speaker. Rep. Jim O’Day (D-West Boylston) argued, “Nowhere that I can recall here in the state are term limits qualified for, whether it’s for our governor, lieutenant governor, Senate president, our constitutional officers, all of us in this body, all senators across the body, none of us are faced with term limits. So my question is, why would we want to discriminate against the speaker of the House?”
First of all, this is a specious argument: term limits do not exist for position X, so why should they for position Y? And it’s followed with the comical idea of “discrimination against the Speaker.” Speakers aren’t protected classes….
But let’s get to the heart of the matter. For any position, there is an inevitable tension between the desire for institutional knowledge and the desire for fresh perspectives. The right balance to strike, I would argue, is to support term limits for executive (and executive-style) positions but not for rank-and-file legislative ones. The reason? Any position with executive or executive-adjacent power enables the holder of power to wield it in order to prevent robust competition or meaningful dissent from being possible. If someone has enough power to credibly retaliate with lasting impact, then there is no meaningful competition nor robust debate, and if someone holds so much sway in decision-making that all those who seek access flock to them, that also tilts the playing field unsustainably. A rank-and-file legislator does not amass such power. A governor or a mayor does. A Speaker is more akin to the latter, and we see that demonstrated in these votes!
(2) A lame duck Speaker would have less power, and that would be bad for the public. Rep. O’Day also argued, “In year seven, in year eight, and we have an eight year limit, they become lame ducks. I don’t think that helps our districts or constituents.”
We aren’t used to the boring transfer of power in the MA House because of how many past Speakers ended up indicted. But one would expect that when a Speaker wants to retire on their own, they would choose not to run for re-election. And if so, they would already be a lame duck! And they would still be wielding (far too much) power over the awarding of earmarks in the budget even as a lame duck given how long budget negotiations even go.
It is not even clear what benefits O’Day is even trying to argue that “our districts or constituents” are afforded from the centralization of power in the Speaker’s office. Is he saying the lack of ability to wield credible threats against members is a loss for all? If so…
(3) Term limits for Speaker are undemocratic. Rep. Christopher Markey (D-Dartmouth) argued, “With that, it’s the most important vote of the session. I can’t think of a less democratic way that we as elected officials support our own communities to be the best and the brightest to say that we think this person, whoever it is, should be the speaker and then not be able to do that because of a term limit.”
I addressed this point earlier–namely, how centralization of power can eliminate opportunities for the robust and open competition and dissent on which the practice of democracy depends. But beyond that, it is simply not the case that the Legislature lines up all 160 members from “best and brightest” to “worst and dimmest(?)” and chooses the best and brightest to be Speaker. With no offense directed at any Speaker past or present, that is simply not how it works — it happens through power, promises, and relationships.
(4) Our constituents don’t care about this. Rep. Jack Lewis (D-Framingham) argued, “I ask my colleagues: have any of you ever heard a voter bring this up as an issue? I’m confident that nearly universally, the answer is no.”
Let’s start by assuming that this is true, even though it may or may not be (it’s neither provable nor falsifiable, and it most certainly varies across districts). Of the 23 bills signed into law this session, 5 of them are sick leave banks for public employees, and 9 were home rule petitions. I’m certain that authorizing the town of Berlin to continue the employment of Paul Kenneth Clark was not a hot-button issue in anyone’s district, and yet that is one of the 23.
There are many things the Legislature passes that are not in response to public opinion. There are many actions that the public wants the Legislature to take that the Legislature does not. It is not a 1-1 relationship, and they should be voting on the merits of a proposal regardless.
(5) This is just like when Members of Congress tried to oust Nancy Pelosi. Lewis continued, “Please, don’t follow the lead of an extreme minority of members of our own party in Congress who tried to push our current U.S. Speaker of the House out of her position in leadership.”
That was not actually a fight about term limits for the Speaker; there was a fight about who the Speaker should be. Wrapped into that was a belief by some that Nancy Pelosi had been the head of the caucus for too long, but “Speaker term limits” would not have been directly applicable because part of her term as head of the House Democratic Caucus was as Minority Leader. The debate on the floor here in MA was about a principle, rather than any one person.
How This Vote Compared to Last Session
Last session, a similar amendment, filed by Rep. John Rogers, failed 43 to 113. Several representatives who supported this reform last session flipped their vote to a no: Rep. Dylan Fernandes (D-Falmouth), Rep. Patrick Kearney (D-Scituate), Rep. Christina Minicucci (D-North Andover), Rep. Maria Robinson (D-Framingham), and Rep. Lindsay Sabadosa (D-Northampton).
Making Committee Votes Public
Most bills never actually make it to the floor of the House, but they do still get a process. That takes place in committees, which either choose to advance or reject bills after a requisite hearing. But we don’t have a lot of transparency about what happens along the way — and who is doing what.
Rather than simply making these committee votes public, the House has decided to publish tallies and the names of those who voted no (but not those who voted yes, those who didn’t vote, etc.). This is more transparent than the previous practice (posting nothing), but the case for publishing only the no votes is quite tenuous.
We heard an array of bad arguments during the debate on the amendment that Rep. Erika Uyterhoeven (D-Somerville) filed to make the full votes public. Here are the four main ones that members of House Leadership used against her proposal and transparency in general.
(1) A committee vote is an uninformed snapshot. Rep. Kate Hogan (D-Stow) — and later Rep. Tom Golden (D-Lowell) — argued, “A committee vote is reflective of a specific proposal at a moment in time during the committee process and policy development stage. Support or opposition can – and should – change as the bill is refined and members learn more about the topic from colleagues, experts and the public.”
First of all, she seems to have a fundamental chronology problem. The House does this work of soliciting input from colleagues, experts, and the public before taking a committee vote: that process is called a hearing. Bills are only ever voted on before a hearing if they are being fast-tracked. Now, there can be additional process of soliciting input that is behind closed doors, but a committee vote is not uninformed, and there is no robust, guaranteed public process of soliciting feedback from colleagues, experts, and the public after it has been voted out of its first committee. Moreover, that a representative’s mind can change does not negate the utility of knowing where that representative stands at a given time — that is valuable information for constituents. If colleagues, experts, and the public want to make their case, they should know where someone stands.
(2) A yes is not a yes, but a no is a no. Rep. Joe Wagner (D-Chicopee) argued, “So for example, sometimes members will vote to advance a bill from committee because they support the concept of the bill, but would not support it affirmatively if that was the final form it might take. So I think a vote in the negative is very clear, but a vote in the affirmative is less clear.”
If a representative votes yes even if they would not support the bill on the floor as written, why is it not impossible that a representative who votes no would, by contrast, consider voting yes if the bill were substantively changed? I have heard of cases of representatives who vote things out of committee that they don’t support because the Speaker wants them to get out of committee, but that doesn’t justify lack of transparency — that’s just a case for better committee assignments. Moreover, there is already a vote for “I don’t support this as written, but I’m open to changing my mind” — that’s called “reserving one’s rights.”
Additionally, the idea that there is a category difference between a “yes” vote and a “no” vote ignores that, on occasion, the House votes to give a bill an adverse report: in other words, a “yes” to an adverse report is a “no” on the bill, and a “no” on the adverse report is a “yes” on the bill.
(3) Interest groups could misconstrue a “yes” vote in communication targeted at a representative. Wagner (and later Golden) also argued, “There are interest groups and people, frankly, who may have agendas, and would use a vote in the affirmative – if a member’s name were attached – to try to discredit a member or perhaps misconstrue a member’s position on an issue.”
This argument falls flat in two ways. First of all, if the tally exists and the list of no votes exists, then such a group will be able to tell whether a representative voted against something or not. The representative may have voted for the measure or not voted at all (or maybe chose to “reserve their rights” or to abstain). If a group were to say that the representative voted yes despite the “yes” votes not being public, would any representative actually retort, “How do you know I voted at all? Did you think about that?”
Beyond that, interest groups who would like to communicate against a representative will have material whether or not a committee vote exists—such members can even be targeted if they have no position at all if a group wants to accuse them of supporting the party’s stated position or criticize their lack of a position. Our concern should never be insulating representatives from their constituents — representatives in purple districts should want to be leading and engaging their districts.
(4) It is simply too much work for staff. Rep. Dan Cahill (D-Lynn) argued, “Our committee staff – I’ve learned this as new chair of Human Resources – our staff are working tirelessly, especially as a result of COVID-19. To have them take on additional duties to get down to granular level of information, to provide that would be unfair to our staff.”
If the House has decided posting tallies and no votes is not a burden on staff, it is unclear why simply adding the list of “yes” votes crosses the line. Posting information on the website is a minor task, especially given the fact that whenever action is taken on a bill, the bill’s page needs to be updated.
Beyond that, if legislators were concerned about their staff, they could allocate more of a budget for staff — to hire more and pay better, something they routinely choose not to do (even when increasing their own pay).
The amendment failed 41 to 117, garnering several additional supporters—Rep. Michelle Ciccolo (D-Lexington), Rep. Brandy Fluker Oakley (D-Mattapan), Rep. Liz Miranda (D-Dorchester), Rep. Steve Owens (D-Watertown), Rep. Dave Robertson (D-Tewksbury), Rep. Adam Scanlon (D-North Attleborough), and Rep. Dan Sena (D-Acton). Rep. Chynah Tyler (D-Roxbury), who was not present for the vote, indicated an intent to vote yes afterwards.
How This Vote Compared to Last Session
Last session, 49 had voted yes on a similar amendment. The representatives who flipped from yes to no were Rep. Carmine Gentile (D-Sudbury), Rep. Natalie Higgins (D-Leominster), Rep. David LeBoeuf (D-Worcester), Rep. Jack Lewis (D-Framingham), Rep. Liz Malia (D-Jamaica Plain), Rep. Christina Minicucci (D-North Andover), Rep. Maria Robinson (D-Framingham), and Rep. Lindsay Sabadosa (D-Northampton).
More Time to Read Bills
The quick turnaround between members seeing a bill and members having to vote on the bill was demonstrated by the rules package itself.
When the process is rushed, members are effectively giving up their own ability to perform due diligence on a bill, and they are cutting the public out of the process. (Who can read a bill that fast–let alone decipher the jargon?) The People’s House campaign had advocated for 72 hours to read bills as a default (and, just as with any such rule, the House could waive it with a 2/3 vote, which an 80% Democratic majority could achieve with votes to spare if needed).
Unfortunately, the amendment for 72 hours, which Rep. Uyterhoeven again filed, didn’t come up for a vote. An amendment from Rep. Christopher Markey (D-Dartmouth) for a 48-hour period did receive debate and a vote, and the amendment for 72 hours was ruled out of order due to similarity. Such a process is flawed: one, if acting in good faith, should consider 72 hours before 48 hours because one should always start with the largest changes before homing in to narrower ones. Moreover, representatives seeking to adhere to the wishes of their constituents without running too afoul of Leadership might want to vote for the 72 hours for which activists asked but dismiss the 48 hour one (a pragmatic if not as principled approach).
The amendment failed 39 to 119, with Rep. Mike Connolly (D-Cambridge), Rep. Nika Elugardo (D-Jamaica Plain), Rep. Tami Gouveia (D-Acton), Rep. Natalie Higgins (D-Leominster), Rep. Russell Holmes (D-Mattapan), Rep. David LeBoeuf (D-Worcester), Rep. Christopher Markey (D-Dartmouth), and Rep. Adam Scanlon (D-North Attleborough) joining Uyterhoeven in voting off.
The disingenuous arguments put forth on the floor would have been the same either way — 48 hours or 72 hours. Let’s take a look.
(1) This would grind things to a halt. Rep. Sarah Peake (D-Provincetown) argued, “As a practical matter, while I appreciate what he is trying to get at here, 48 hours is just too long – and the practical effect on this body is it would grind things to a halt, slow things down, and leave many important bills in the dust bin.”
The Legislative calendar starts in January of an odd-numbered year and goes through July of the even-numbered year (unless the Legislature votes to extend it). The Legislature has ample time in the calendar to pass legislation, and indeed, often spends large periods of time not doing so. A modest window of time for legislators to read bills — which could be waived without even the full supermajority — is not going to grind things to a halt. Grinding things to a halt is entirely self-imposed.
(2) This would leave so much on the table on the last day of the session. Rep. Ruth Balser (D-Newton) argued, “A big priority of mine – I’ve been working on the public lands preservation act – to my great delight it came out on the last day of the session. If this rule were in place, we would not have been able to pass this big priority of me and my constituents.”
If you need 48 hours with a bill (i.e., releasing bills on Monday to vote on Wednesday), all that does is move up the end-of-session deadline a little earlier. It would make for a less chaotic final day of the session if members were voting for bills at a more spaced out pace since they weren’t cramming everything in at the last minute. Our Legislature is full-time (we pay for them to be full-time), and they should use the full legislative calendar, not put important legislative work off to the last day.
(3) This would have led to the failure of the ROE Act to pass. Rep. Sarah Peake further argued, “In recent history important legislation like ROE Act that has come out less than 48 hours before end of the session. I don’t know about all my colleagues but I’m not prepared to say to women in this state, I’m sorry but while Supreme Court has cases making its way to you to take away your right to choose, because of a technical glitch and failure to get a two thirds vote, you have to wait for next session when it has a hearing again and comes to the floor for a vote.” Rep. Balser echoed this line: “My friend from Provincetown referenced the women of Massachusetts who were all, all of us, shaking in our boots as the Supreme Court changed and this Legislature wanted to protect the women of the state. We remember the back and forth with the governor.”
The timeline of this argument is factually inaccurate. The House and Senate overrode the Governor’s veto of ROE Act provisions (note: not the ROE Act itself, but most of its provisions filed as a budget amendment) on December 28 and 29. The session ended a week later on January 5. Taking a step back, however, shows how much self-imposed delay the Legislature created for itself. Even though the ROE Act was filed in January 2019 — a time when reproductive rights were under attack by a majority conservative Supreme Court and the Trump administration — the Legislature had left the bill on the table at the end of July 2020 when the session would traditionally end.
The bill gained new momentum after the death of Justice Ruth Bader Ginsburg (September 18) and confirmation of Amy Coney Barrett (October 26). The bill, in modified form, was passed as a budget amendment by the House (11/13) and Senate (11/18) several weeks after Barrett’s confirmation and two months after Ginsburg’s death — self-imposed delay. The different versions of a modified ROE Act were a subject of negotiations for the conference committee working on a final budget. That committee came to a consensus on December 4. Baker issued a veto on December 14. The Legislature had re-passed the modified ROE Act by December 18 and overrode his veto at the end of the month as noted above.
All delays were a result of the Legislature’s own inertia and lack of urgency. Arguing that a 48-hour requirement, which could be waived by a ⅔ vote (and the ROE Act provisions had ⅔ support throughout all of this), would create undue delay is simply disingenuous.
(4)This would have prevented the climate bill from passing. Balser further argued, “So too with climate action as the Legislature moved forward historic climate legislation. At the end of a session with COVID, the pandemic, the crisis, I would argue this rule would have, could have, jeopardized it.”
The Senate passed a climate bill on January 30, 2020. The House waited until July 31 of that year — a self-imposed delay of six months. After that, a Conference Committee worked on a consensus bill and did not come to an agreement until the penultimate day of the session — Monday, January 4. 48 hours is minor compared to their own delays in process.
But it gets worse. The Legislature had waited so long that the climate bill didn’t become law last session. Governor Baker vetoed it on January 14, and since the 191st session of the General Court was over, they could not override him. They thus had to create a new process to fast-track the bill, re-passing it on January 28. Baker sent it back with amendments on February 8, and they only enacted a final bill on March 18.
48 hours is tiny compared to the delays they made for themselves.
(5) This is just like the filibuster in the US Senate. Rep. Balser further argued, “But let’s not find ourselves in a situation like the U.S. Senate where it takes a two thirds vote for legislation to move.”
We would be so lucky if filibusters in the US Senate were time-limited endeavors, but they are not. Balser’s comment misunderstands the filibuster and the proposal in question. The filibuster is a requirement that, in order to end debate on a bill, 60 senators must vote in the affirmative (unless there is unanimous consent — i.e., no one present objects — to do so). If that threshold is not reached, then debate is not ended, and the vote cannot happen.
Under the proposal to extend the time for representatives to read bills, the requirement could be waived by a ⅔ vote of the Legislature or by unanimous consent. With an 80% Democratic majority, achieving ⅔ would likely not be hard if desired in a case of special urgency (or, frankly, even in cases with no urgency…). Nothing would be permanently blocking a bill from happening; it would simply be altering the timeline.
Moreover, none of the representatives afraid of delay imposed by rules saw fit to change the rule that requires members to vote in order to go past 9 pm. They go past 9 pm all the time, and they have to waste time taking a vote whenever they do so. And yet none of these representatives fought to take out that source of minor delay built into the existing rules? One wonders.
How This Vote Compares to Last Session
Last session, an amendment to grant a 72-hour review period failed 55 to 103. The representatives who changed from yes to no were Rep. Natalie Blais (D-Sunderland), Rep. Dan Carey (D-Easthampton), Rep. Michelle Ciccolo (D-Lexington), Rep. Mindy Domb (D-Amherst), Rep. Tricia Farley-Bouvier (D-Pittsfield), Rep. Carmine Gentile (D-Sudbury), Rep. Mary Keefe (D-Worcester), Rep. Jack Lewis (D-Framingham), Rep. Christina Minicucci (D-North Andover), Rep. Maria Robinson (D-Framingham), and Rep. Lindsay Sabadosa (D-Northampton).
Back in January (remember January?), the MA House delayed consideration of a rules package for the new legislative session, instead creating a committee to explore possible reforms.
Unsurprisingly, that committee did little of its work in public, but it finally issued its report last week. Although there are some recommended reforms worth celebrating (Floor votes will continue to be easier to access on the website, virtual participation will not become a thing of the past when COVID is over, and members will get summaries of bills before voting on them), the new rules package that resulted still leaves much to be desired.
Every system is perfectly designed to produce the results it gets. And if we want to see different outcomes, part of that requires changing the rules.
Can you email your state rep today in support of key rules reforms that will make a more democratic and transparent Legislature?
In particular, your state rep should support the following reforms, championed by the People’s House campaign:
Amendment #2 (Gouveia): Speaker Term Limits, ensuring that no one holds the office of Speaker of the House for more than eight years
Amendment #16 (Uyterhoeven): Public Committee Votes, ensuring that the full record of the yes and no votes taken in committee are made public, rather than a mere tally of the vote
Amendment #17 (Uyterhoeven): Adequate Time to Review, ensuring that members have at least 72 hours to read bills before they vote on them and allowing for greater public participation
Also, as the Globe pointed out recently, the House and Senate have yet to agree to a set of joint rules, and your state rep should hear from you about that too.
But The Fight Continues On
Here in Massachusetts, with a progressive electorate, we should already be leading the country in climate action, in providing Medicare for All, and more — but policies that have majority support languish in the State House year after year.
We’ll be joining together with a coalition of progressive organizations to build a movement for change through Incorruptible Mass. Incorruptible Mass has an 18-month plan to raise awareness of the deep problems at our State House and to amplify our demands for progressive policies, building pressure in each district.
Want to get involved? You can sign up here to get involved with your Incorruptible Mass district team. You’ll play an integral part by contributing your knowledge of the people and issues right in your own backyard, engaging people on what matters most to them.
