In New Jersey, state lawmakers moved a dozen bills in a single day last week, all via remote voting. Michigan legislators were checked for fevers before voting to extend the governor’s emergency powers. New York lawmakers managed to pass a $177 billion budget.
But in Massachusetts, the Legislature, which remains in session 41 days into a state of emergency, has not adjusted the process for its primary job: to pass laws.
That inaction has left a branch of government with roots in Colonial times to operate not only without crucial public debate but, critics say, the nimbleness needed to meet the COVID-19 pandemic’s increasing demands — all while Governor Charlie Baker operates with vast emergency powers.
With lawmakers dispersed and the State House closed to the public, crucial legislation has trudged through back-channel negotiations. Oversight hearings have been nonexistent. Even worse, critics warn, the chambers’ continued penchant for cautious deliberation could hamper its ability to help the Commonwealth avoid the worst fallout from the dual public health and economic crises.
“It’s a conversation that needs more urgency,” said state Representative Maria Robinson, a Democrat from Framingham who, like others, has gotten no indication from leadership whether it will extend the formal legislative session past its July end date, or when formal recorded votes might begin again.
“We have to figure out how we’re going to vote, especially with the idea that these social distancing measures might not be lifted by June or July," Robinson said. "Every indication we get says that life is not suddenly going to go back to normal.”
House Speaker Robert A. DeLeo, a Winthrop Democrat, promises changes are in the works. He said Friday that he intends to announce a process for remote voting within two or three weeks, potentially using teleconferencing — a move that would follow similar remote voting measures in at least 13 other states.
Doing so has become unavoidable: The Legislature can’t move a bill giving the state more borrowing power in the coming months without a formal roll call vote, lawmakers say. They also must eventually pass the state’s annual budget with the new fiscal year looming in July.
“We’ve been thinking about this for a while,” DeLeo told the Globe. “What I’m concerned about most is I don’t want to roll out a [remote voting] system that on the first day we’re going to find problems with. And at the end of the day, we want bills that are going to withstand the test of time.”
To be sure, the unprecedented crisis has upended lawmaking nationwide. Nearly half of state legislatures — 23 as of last week — have outright postponed their sessions amid efforts to thin crowds and slow the virus’s spread. Congress, too, has wrestled with alternative options to vote, including by proxy, amid an extended recess.
But Massachusetts stands out as the only state that has not announced a formal suspension or work stoppage since the pandemic set in, according to the National Conference of State Legislatures.
That’s allowed some legislation to continue to flow through informal sessions without debate and to Baker’s desk, including bills that waived the state’s MCAS requirement, allowed restaurants to offer takeout beer and wine, and undid a weeklong waiting period for unemployment benefits in response to the health crisis.
In the early days of the pandemic, lawmakers also quickly set aside $15 million Baker could use toward the state’s response. It was one of a list of 10 “actions” DeLeo released showing its work in the month-plus since the governor’s March 10 emergency declaration.
“It sometimes does take a little bit of time, and I know people feel a little frustration and impatience," Senate President Karen E. Spilka, an Ashland Democrat, said of the Legislature’s traditionally deliberate process. But, she said, “we have had a lot of action going on in the Senate and the Legislature.”
Privately, however, several lawmakers said they felt leadership is not acting with enough urgency, content to continue working at the same pace as the institution moved before there was a deadly pandemic ravaging the state.
“There hasn’t been a cognitive shift,” said one lawmaker, who requested anonymity so as not to antagonize leaders who hold outsize power. That elected official said legislative leaders are reacting as though the state is dealing with a natural disaster, not a once-in-a-generation crisis.
State Senator Sonia Chang-Díaz, who represents several neighborhoods in Boston, said legislative leaders have been working hard, but it’s still “past time” for the Legislature to have figured out how to debate and vote on legislation remotely.
“We have a lot of talent, we have all these tools. . . . We should be using all of them, and I don’t think we are putting forth our best, most robust effort" if the Legislature isn’t holding formal sessions, the Jamaica Plain Democrat said.
Since March, the House and Senate have relied exclusively on those informal legislative sessions, sparsely attended gatherings where a single lawmaker can stop even broadly supported legislation.
The Legislature last week passed, and Baker on Monday signed, a bill that halts most evictions in Massachusetts during the coronavirus crisis. But it came after it momentarily was stalled by a lone House Republican, underlining the perils of informal law-making, and nearly a month after Spilka and DeLeo first touted such legislation in a March 22 statement.
Lawmakers’ slow response to calls to cut signature requirements for candidates hoping to get on the Sept. 1 primary ballot was even outpaced by the state’s highest court, which ruled Friday that the requirements will be slashed by 50 percent. In even doing so, such a move, one justice wrote, is "best left to the Legislature, which can act with great dispatch when it chooses to do so.”
And a similar push by advocates to allow mail-in voting even prompted an unusual sight last week: Members of the state’s all-Democratic federal delegation pushing its Democratic-controlled state Legislature to act.
That glacial law-making pace has long defined Beacon Hill, said Jonathan Cohn of the group Progressive Massachusetts. "But it’s especially striking when you have a moment of crisis that requires bold action . . . and it’s just slow moving.”
Other standard legislative practices have been slow to reemerge. The Legislature’s oversight role has all but halted despite a deadly COVID-19 outbreak at a state-run soldiers’ home in Holyoke, where 62 veterans have died, 52 of whom tested positive. It has drawn investigations from state and federal authorities but no formal legislative probe. (Spilka said lawmakers will take action if need be, but said it “makes sense to wait and see what happens with those investigations.”)
And while other legislative hearings have begun virtually, they were slow to materialize and not without glitches. An economic roundtable officials organized this month had to be postponed for a week because they couldn’t get the live stream to work. When it reconvened, it’s highest-profile invitee, the president of the Federal Reserve Bank of Boston, couldn’t make it.
Both Spilka and DeLeo created working groups a month ago to examine and streamline legislating amid the pandemic, but discussions about how to actually restart formal voting have been slow to produce results.
Spilka said officials debated having senators remain in their offices at the State House before being called alphabetically into the chamber to cast a vote. But should amendments emerge, she said, “that can take more than a day just to get through one bill.”
DeLeo said some members do not want to gather at the State House. “Frankly, members don’t feel comfortable,” he said.
Beyond the State House’s technological limitations of voting remotely, legislative lawyers have been reviewing whether there are constitutional restrictions to allowing them to do so.
Lawrence Friedman, a professor at New England Law and an expert in state constitutional law, said he doesn’t see much that would complicate that in the Massachusetts Constitution, which he said does not discuss procedural requirements for lawmaking.
To be sure, many Massachusetts legislators are sympathetic to the challenges the unprecedented crisis presents to a variety of governmental institutions.
“We don’t have a road map for this,” said Representative Tami Gouveia, an Acton Democrat. That said, she thinks the Legislature needs to avoid getting hung up on finding the perfect solution to every problem.
“What we need to do is try to find the least worst solution,” she said.
That’s not to say all solutions have been slow. One accommodation put in place relatively quickly to help legislators deal with a dramatic increase in constituent e-mails: The size of their official inboxes was increased.