Massachusetts lawmakers are debating their transparency procedures — behind closed doors

The Massachusetts State House, where state lawmakers are conducting discussions about their internal transparency rules — out of the view of the press and public.Matthew J Lee/Globe staff

Could this be the year Massachusetts state representatives open themselves up to more scrutiny?

Constituents seeking an early hint could look to a recent meeting of the legislative committee debating just that — when lawmakers voted to conduct discussions about their internal transparency rules out of the view of the press and public.

It’s that instinct toward secrecy that advocates are targeting this year in a renewed push for transparency on Beacon Hill.

For years, voters have been left to wonder why some popular, common-sense proposals don’t pass in the Massachusetts House — even when a majority of the chamber’s members sign on publicly in support. That’s because the vast majority of bills never get a formal vote; instead, they die in the obscure committee process, where voters can’t see who killed them.

The Commonwealth is the only state where the judicial branch, Legislature, and governor’s office all claim they’re exempt from public records laws. Residents are blocked from seeing e-mails between certain public employees, internal documents, and even which groups opposed a certain bill in the legislature.

Massachusetts is “very much toward the bottom on transparency,” said Justin Silverman, executive director of the New England First Amendment Coalition. “There just doesn’t seem to be much political appetite to change this culture of secrecy and open up the Legislature at least to more scrutiny and more transparency.”

Efforts to open things up have run into resistance.

A 2020 ballot question found overwhelming support in 16 house districts for a measure to increase transparency around the committee process. But when the issue came before the Massachusetts House, the status quo prevailed.

When considering the Legislature’s internal rules in February, Democrats overwhelmingly rejected a transparency amendment that would have forced them to post online their votes on bills in committees, publicize the testimony that influences those votes when requested, and required a one-week notice in the scheduling of committee hearings. They did agree to make public which lawmakers vote “no” on a bill in committee — but not who votes “yes” or does not vote.

Members of the Massachusetts Senate, which backed more transparent protocols in their own version of the rules, are now negotiating with House members over how much constituents will be allowed to know about the work their lawmakers do in their name and on their dime.

House lawmakers who opposed the transparency moves said they would create too much work for staff, intimidate people who might not want their committee testimony publicly shared, or simply mislead constituents they say do not have a firm grasp on the legislative process.

Of course, dozens of other states — along with Congress — have been able to surmount those barriers.

In the “no” column: 14 Democratic state representatives who had privately told the advocacy group Act on Mass that they would support similar transparency changes, and nearly a dozen who had publicly committed to similar proposals.

Some said the language in the amendment did not exactly match the changes they had committed to backing. Others said they believed the amendment did not do enough to protect vulnerable people who might want to share their experiences with lawmakers but not see their testimony published. (The amendment did include language to allow redaction of personal or sensitive testimony.)

“My vote was not a vote against transparency; it was a vote against a misleading amendment,” state Representative Vanna Howard of Lowell, who publicly supported the Act on Mass initiative, said in an e-mail. “To imply that I have broken my word by not voting for that one amendment is simply untrue. I am not responsible for my colleague’s overreach.”

Other lawmakers said publishing testimony would be too burdensome for staff — an argument that was not persuasive to advocates, including some who have themselves done that work.

Jacob Stern, deputy director of the Massachusetts chapter of the Sierra Club, once did exactly that for a legislative committee in Maine, where he said it took him a few hours after each hearing to properly format the comments.

“I was 24 years old — it wasn’t rocket science,” he said. “I cannot imagine a technical barrier to this. It just seems so, so basic.”

Without consistent access to that information, Stern said, it’s difficult for him to push for environmental legislation on Beacon Hill.

Other lawmakers seemed to suggest the committee process should remain secretive because constituents don’t understand it.

The legislative process is “complicated” and lawmakers need maximum flexibility, state Representative Sarah Peake, a Provincetown Democrat and member of Speaker Ronald Mariano’s leadership team, said in explaining her opposition on the floor of the State House.

She held up a postcard she said she had received from a constituent, who, in a message calling for more transparency at the State House, characterized lawmakers’ votes to advance an early version of a bill out of committee as votes in support of that bill.

That message — which Peake seemed to consider an egregious misunderstanding — showed constituents’ limited understanding of the legislative process, she claimed, and by extension why the lower chamber must continue to obscure it.

“A vote in committee isn’t a vote for a bill or not for a bill,” she told the chamber. “This is a complex process and members need to be free to deal with the complexities of the process without people confusing support or non-support of a vote in committee with a vote here on the floor.”

Peake did not respond to questions from the Globe.

For Ella McDonald, a communications director for Act On Mass, the speech was infuriating.

“In the MA State House, Reps will cut their constituents out of the legislative process, and then blame their constituents for their lack of knowledge on the legislative process. Who does that serve?” she asked on Twitter.

As State House members pointed to logistical challenges and their constituents’ ignorance, advocates for open government saw another explanation for keeping votes hidden.

“We’re dealing with a lot of self-interest here,” Silverman said. “The very people that are going to be scrutinized more and perhaps criticized more are the very people that we’re counting on to change the law to make that happen.”

Nearly every Republican in the House supported the transparency amendment, along with eight Democrats.

To Republican state Representative Leonard Mirra of Georgetown, “entrenched one-party rule” is to blame for the culture of secrecy.

“We thought that with the election of a new speaker, it would usher in a new era of transparency,” Mirra said. “Unfortunately, it did not.”

Mariano, who became speaker this winter, also voted against the transparency amendment. He said in February that the rules package the House supported “promotes accessibility and allows the House to work in a deliberative and efficient manner to support our constituents.”

Some national rankings list Massachusetts among the least transparent states in the nation. A 2013 ranking from Open States, a civic engagement website, gave Massachusetts the lowest score in the country. A 2015 study from the Center for Public Integrity gave the state a D+.

According to Act on Mass, 27 other states make full committee votes accessible on their websites. In other states, such as Texas, voters can watch full videos of past committee hearings, including when lawmakers vote on whether to advance a bill out of committee.

Analysts say that requiring more transparency could affect the policies lawmakers pass. A Brown University study examining why Massachusetts has taken so little action on climate change despite its liberal reputation pointed to secrecy in the Legislature, where the vast majority of climate bills died in committee.

“At no step of the process was any individual senator’s or representative’s position on a bill recorded,” the study found after examining 245 climate and energy bills introduced from 2013 to 2018.

Leaning on a 1997 court precedent, Governor Charlie Baker’s administration says his office is exempt from public records laws. And the Legislature itself does not have to follow the open meetings laws that govern local city councils.

In 2016, Baker signed the first new public records law in decades. The law set new deadlines for furnishing public records and required that records be provided electronically in most cases. But those changes simply took Massachusetts “from bad to mediocre,” Silverman said.

Limits on the public’s right to know have gained more urgency during the COVID-19 pandemic, with citizens relying on their government more than ever for answers on vaccine eligibility and unemployment benefits.

Even prominent House lawmakers complain that they have been left in the dark on crucial decisions. Last month, at a legislative hearing, state lawmakers had to publicly demand that Baker administration officials provide documents as basic as an organizational chart for the state’s COVID Command Center.

Weeks later, they have received most of the documents they sought, chairs Senator Jo Comerford and Representative Bill Driscoll said.

Now that they have them, will they be made public?

“At this point, no,” Driscoll said.