Let’s Dismantle the Massachusetts House of Representatives
A not-so-modest proposal to clear out the house.
Robert DeLeo, by his own reckoning, should no longer be speaker of the Massachusetts House of Representatives. Back in 2009, scolds like me howled at the idea that former Speaker Sal DiMasi’s aide-de-camp and handpicked successor was replacing the soon-to-be-imprisoned political crook. As part of an effort to assure skeptics of his good intentions, though, DeLeo pushed through an eight-year limit on speakerships. After all, would a power-hungry man set a legal limit on his own tenure?
Yet this February, on almost the exact date he would have given up the gavel under that term limit, DeLeo rammed through a bill to raise his own income by a stunning $45,000 a year—a windfall he’ll be able to enjoy after previously repealing the limit on his own reign. As the first to publicly predict, back in 2014, that DeLeo would eliminate his own term limit, let me now be the first to publicly set the time of DeLeo’s preemptive retirement from the House: January 2020. How do I know? DeLeo’s pension is based on his three highest-earning years, and he just ensured that 2017, 2018, and 2019 set his pension far, far above what it would have been if he retired today. My cynic’s crystal ball also shows that in January 2021, after the required one-year waiting period (unless he eliminates that, too), DeLeo will likely register as a lobbyist, earning great sums with little effort by virtue of his unique access to a successor gratefully reaping the extra $45,000 speaker stipend, courtesy of DeLeo’s pay-raise package.
If all of this infuriates you; if you’re also enraged that Beacon Hill continuously fails to seriously address the state’s long-term needs for transportation, housing, education, and development; and if you’re sick and tired of the state legislature’s opaque back-room operations, I have a proposal for you: Eliminate the Massachusetts House of Representatives.
I’m serious. It’s not a panacea, but switching to a single chamber—a unicameral legislature, instead of the current bicameral arrangement—would be a major positive reform of the legislative process, improving efficiency, transparency, and responsiveness to the public. The bicameral state legislature is a ridiculous anachronism, born of outdated, class-based ideas, that serves only to frustrate progress and limit open government. Still, we and 48 other states (all but Nebraska) keep doing it that way just because it’s always been done that way.
For one thing, having two chambers (particularly in a de facto one-party state such as ours) is, literally, government redundancy, with two bodies representing the same people in the same way, and performing the same duties—but with additional chokepoints where interest groups kill what they don’t like, in secret, with no fingerprints or blame. “The system,” says one Beacon Hill staffer who asked for anonymity for fear of reprisal, “gives the power to the people who just sit on the bill.”
The most egregious of these chokepoints is the conference committee. Bills that have passed in both houses are sent into this black hole, in which a handful of legislators, hand-selected by the leadership, negotiate in secrecy and silence to rewrite the law. Even those directly involved are often hard-pressed to explain how and why a bill, or an element of a bill, came out the way it did. A single-chamber legislative process, at least in theory, is easier for voters to follow, which means they can better hold their lawmakers accountable. “The transparency of the unicameral system reduces the influence of professional representatives of powerful interests and enhances the influence of less organized and moneyed citizen groups,” argued a 1999 study done for the Minnesota House of Representatives, which pinned much of the problem on the nature of conference committees.
Two reasons are typically given for keeping the dual-chamber legislature. The first is that it’s important to maintain town-level representation as found in the 160-member House. But a unicameral legislature can be any size you want. In fact, a unicameral system with the same representation could be achieved by simply merging the existing House and Senate districts into a 200-member lawmaking body, mixing the micro- and macro-district members just as the Boston City Council does. Indeed, that’s exactly what happens every two years when the two chambers unite to consider constitutional amendments.
The other argument is that it prevents the legislature from moving too rashly in making laws. As we enter year nine of trying to pass a bill governing corporate non-compete clauses, I respectfully submit that the state is in no danger of speeding into a whiplash-inducing frenzy of lawmaking. It’s as if we kept building factories next to rivers, with giant water wheels, long after converting to electrical power. So once again it’s time for Massachusetts to take the lead and demonstrate a better way: It’s time to abolish the House.
The arguments for a two-chamber system are rooted in the England of centuries past, when noblemen thought they were too good to assemble in the same room with representatives of the boroughs, shires, and cities. That model was later reinterpreted, by more-philosophical Englishmen and American colonists, as a way to give direct representation to sovereign citizens while maintaining the supposedly greater wisdom of the elites. The House of Representatives was designed to protect against the tyranny of the upper class; the Senate would protect against the tyranny of the majority.
That allowed the framers of the U.S. Constitution to address a number of concerns that are of little or no relevance to the states that continue to copy their model. America’s new federal government had strong political subdivisions—states—to consider, so it gave them representation in one chamber, and representation to the national population in the other. That’s both irrelevant and unconstitutional at the state level today, where the 14th Amendment requires one-person, one-vote representation. The framers, still wary of those common voters, also used the bicameral system to entrust a slate of important powers—confirming judges and political appointees, approving treaties, and trying impeachments—solely to the Senate, whose members were originally appointed by elites in each state’s legislature rather than elected by the masses. Again, none of that is relevant to today’s Massachusetts, where the House and Senate have virtually identical duties.
The founders, including Boston’s own John Adams, were also fearful of a unicameral legislature doing harm through rash, wild lawmaking—a much more serious concern when dealing with the far-reaching powers of the federal government, especially in the founders’ day, when the strength of the Supreme Court was untested. There’s really only so much harm a rash and wild state legislature can do today.
Also, let’s be honest: Nobody would create a bicameral legislature for state government if they were starting from scratch. If you think otherwise, ask yourself why there’s never been a proposal to create a second chamber of the Boston City Council. Because it’s a ridiculous idea, that’s why. It’s also the reason all 13 Canadian provinces and territories began with or adopted unicameral legislatures, and none has switched from a single chamber to two. Right now, Massachusetts already entrusts the process of writing or amending its constitution to a unicameral body. The unfortunate reality is that we keep both chambers only because we’ve always done it this way. That shouldn’t be good enough.
The perfect example of how the two-chamber system allows special interests to gum up the works without any public accounting for legislators is the corporate non-compete bill. Proponents, including venture capitalists, argue that high-tech workers are ditching Massachusetts for California, which limits the use of non-compete clauses. Big technology companies and industry associations oppose the change and lobby hard against it.
After six years of failed attempts, Speaker DeLeo vowed to get a bill passed in the 2015 to 2016 session. The House, though, didn’t actually deliver its proposal for 17 months. Members hustled it through committee and voted on it just a month before the July 31 formal-session deadline—and, as it was being passed, amended the legislation with what BostInno called a “giant EMC-sized hole,” gutting one of the key provisions.
Short on time, the Senate passed its version of the bill, but with the original provision intact, 12 days later—and off it went to the dark void of the conference committee, where it died at midnight on the 31st. All that could be reported was that everyone had tried, but no compromise could be reached. There was nothing for anyone on either side of the issue to do except make more campaign contributions, extend contracts with lobbyists, and start over again in the next session—just as they had in 2014, when non-compete legislation died in conference committee. Which, as you quickly learn around Beacon Hill, is where the money really is. “Virtually no lobbyist gets paid to pass anything,” says one consultant. “It’s almost always to stop something, or slow it down.”
This means that comprehensive bills, trying to address serious problems in a forward-looking way, are nearly impossible to pass—witness the ongoing inability of the state to deal with transportation funding, housing, and energy. The legislature, almost literally, does the least it must do, as with last year’s diluted renewable-energy bill. After it passed, for instance, the lawmaker ostensibly most responsible for watering down the bill, Tom Golden, the House chair of the joint committee dealing with utilities and energy, delivered a head-smacking quote to MassLive, saying, “I really, truly believe next year we’ll be doing another energy bill, and the year after that we’ll be doing another energy bill.”
The two-chamber process also leads to a wild traffic jam of bills in conference committee during the final days of each two-year formal session. In part, of course, that’s the nature of deadlines. But Beacon Hill’s biennial end-of-July midnight scramble is exponentially worse, because a small number of people are negotiating not only within each secret conference committee, but also between and among all the different bills, which become bargaining chips against entirely different measures altogether. In addition, the process allows just one or two people to get away with whatever they want, leaving no fingerprints. As Beacon Hill watchers know, bills in conference committee pile up until the final days of the formal session, when the supposed work of two years, 200 legislators, and committees in open hearings is actually done in a hectic rush, by a handful of people, horse-trading within and between bills, until finally spitting out new versions for the two chambers to hastily endorse.
It’s not uncommon for errors to crop up in this flurry. In one notorious example, a major jobs bill that passed on the final day of the 2013 to 2014 formal session was “littered with incomplete proposals that appear in need of correction,” the State House News Service reported. “It fosters incompetence,” says the Beacon Hill staffer. It can also allow more-malevolent activity, as minor details of a bill—which can be highly lucrative for some special interest or another—get changed without notice, attention, or explanation.
“Today it is hard to accomplish anything in the way of positive legislation unless the wheels are ‘greased.’ The present legislature is not only slow, but it does not consider well the legislation it does pass. Just before adjournment it rushes through a number of bills agreed upon by the leaders, and this haste and confusion affords a splendid chance for jokers. The two houses with their conference committee give ample opportunity for dodging and shifting responsibility if the constituents clamor too loudly.”
That passage was written more than a century ago about the Oklahoma legislature, but it just as accurately describes Massachusetts today. During the Progressive Era of the early 1900s, states were taking a serious look at switching to unicameral legislatures. They felt pressured to make their governing bodies more transparent and responsive because frustrated citizens had begun creating ballot initiative and referendum processes to take lawmaking into their own hands—and the officeholders surely didn’t care for that. Still, they couldn’t bring themselves to self-impose such a serious reform. So the backlash gained steam: When the citizenry in Massachusetts voted in 1918 to create an initiative process to enact laws by popular vote, it was the 24th state to do so in a span of 20 years.
A similar frustration, 100 years later, has led to a new golden age of citizen lawmaking—with dozens of ballot questions submitted every cycle. In Massachusetts, increasingly the only way to get the legislature to pass a bill is to threaten to do so by ballot initiative.
Still, it’s become more and more difficult to imagine the system reversing. DeLeo’s pay-increase bill, for instance, continued a decades-long process of creating more and larger leadership stipends, which are awarded by the speaker in the House and the majority leader in the Senate—effectively making members heavily income-dependent on their leaders, and thus more likely to kowtow to them. At least in some states, leaders and their enablers need to worry about losing their power by losing their party majority. That is a non-issue in Massachusetts, where Republicans could literally double their numbers without coming close to reaching a majority in either chamber. As a result, the leadership can secure its own power indefinitely by rewarding loyalists with stipend-rich positions. There’s an easy way to tell that legislative leaders and special interests benefit most from the bicameral system: They’re the ones who kill the unicameral proposals whenever they come up.
Still, change doesn’t need to be a pipe dream. Even against the will of most current state legislators, dismantling the House is mostly a matter of generating public enthusiasm. Who knows, the pay raise DeLeo just gave himself might be the trigger that can spark it.