February 27, 2005
Outside Sections and the (Un)Democratic Process
by John Edward, MCHC correspondent
Legislation you disagree with is a fact of life in a democracy. However, every once in a while you become aware of a law that makes you shake your head and wonder how anyone could ever have voted for it.
The immediate urge might be to contact your representatives, find out how they voted on the measure, and ask for an explanation. The more ambitious among us might endeavor to review transcripts of committee hearings or floor debates. Unfortunately, in Massachusetts such attempts to hold your government servants accountable may result in a dead end because much legislating is done without hearings, debates, or recorded votes.
Critics of the state’s fast-track auction legislation encountered this recently when they tried to track the history of the legislation which allows the state to sell “surplus” state-owned land at auction to the highest bidder. They were concerned that this policy threatens the ability of cities and towns to control land use within their borders. From the perspective of community planners, it seemed to subvert local development plans designed to promote affordable housing, open space preservation, and smart growth. (Their analysis of the flaws in the fast-track auction law can be found on their website, http://masschc.org/landuse.html).
The authorizing legislation for the auctions was known as Outside Section 548 – a designation that indicates that the law was not passed via the standard legislative rules of the Massachusetts General Court – procedures that have been in effect for decades. An “outside section” is a measure attached to a state budget that may have nothing to do with budgetary matters.
Outside sections are described on the Massachusetts state government web site as follows:
An “outside section” of an appropriation bill is a section which does not contain actual line item (i.e. individual budget account) information as one would expect in the appropriation act. Instead, the outside section deals with a separate substantive matter.
It goes on to say, “…the practice of adding outside sections has gone far beyond its original purpose” (see http://www.mass.gov/lib/legishistory/1.8.htmfor the full text). Thus, even the state government website admits that outside sections are being employed far more than intended.
Outside sections allow legislation to bypass the committee process, allow legislators to avoid public hearings, and protect legislators from the accountability that comes with open debate and roll call votes. They have been criticized by groups ranging from the League of Women Voters, Common Cause, and Citizens for Limited Taxation and Government, as a distortion of the democratic process.
The volume of outside sections added to the budget has varied considerably and has been on the rise of late. The outside sections portion of the 2004 budget has over 700 items and runs for over 100 pages.
Why are outside sections used, and why have they become so popular with the legislature? In Massachusetts Politics and Public Policy: Studies in Power and Leadership, UMass Boston political science professor emeritus Richard Hogarty tells the story of how outside sections became such a prevalent feature in the Massachusetts legislative process. He describes outside sections as a recent “innovation”, and as a product of a “conspiracy” between state house leadership and then Governor Michael Dukakis. Governor Dukakis was anxious to cut unemployment insurance costs for employers. Labor unions were strongly opposed to the Dukakis proposal, which they felt endangered employment
benefits. Considering the standard legislative process untenable, Governor Dukakis agreed to allow legislative leaders to add the desired measure as an outside section to the budget. The legislature thereby bypassed the committee process, open floor debate, and public hearings. Dukakis signed the budget and, as described by Hogarty, the floodgates opened.
During most calendar years outside sections represent over half of the legislation passed. Jill Stein, President of the Massachusetts Coalition for Healthy Communities observed:
It is not acceptable when the Legislature does more than half of its work in outside sections. Insiders are not supposed to be secretly determining major policies and expenditures for the state….We need to have a process that is accountable and sees the light of day.
Whether or not this process is in violation of the Constitution of the Commonwealth of Massachusetts is an open question. The Supreme Judicial Court has never been forced to rule on the issue. A plaintiff with standing could challenge outside sections. Unfortunately, only one party with standing, MassPIRG, has done so. They reached an out-of-court settlement.
Although a challenge has not been forthcoming, the court did have an opportunity to rule on this matter. In fact, the legislature asked the court to rule on the constitutionality of a governor vetoing provisions in the outside sections that the legislature did not consider separable. The court could have taken this as an opportunity to rule on the constitutionality of outside sections, but they chose to avoid the issue.
In addition to fast-track auction authorization, recent examples of legislation passed via outside section include:
• $1.30 tax on drug prescriptions,
• $10 fee for a certificate of blindness,
• A law requiring the Registry of Motor Vehicles to update the driver’s manual to include information on bike safety,
• A call for a study on establishing a Governor’s mansion on state-owned land, and
• Repeal of the voter-approved Clean Elections Law.
The Worcester Telegram & Gazette June 2004 editorial mentions a wide variety of outside section measures, including a death-penalty bill. Not all outside sections are life-or-death matters, but clearly, significant legislation is being created via this mechanism.
No one is saying all outside sections are bad legislation, but knowledgeable Beacon Hill observers seem to believe they open the door to mischief. The outside section issue was the focus of a May 2004 editorial in the Boston Herald, and a June 2004 editorial in the Worcester Telegram & Gazette. Both papers roundly criticized “abuse” via “legislative
shenanigans.” An editorial in the December 10, 2004 edition of the Worcester Telegram & Gazette called for legislative reform, including a “ban on inappropriate use of outside sections to the budget.”
The tendency of legislative bodies to go behind closed doors and cut deals for special interests is well known. This is why public hearings and recorded votes are normally required to enact substantive legislation. By making an end run around these democratic safeguards, outside sections have changed the nature of lawmaking in Massachusetts. As Professor Hogarty notes, “it is a devious way, a Machiavellian way, of subverting the American democratic process.” Unfortunately, the concerns of reformers have so far had little effect upon the fondness of the Legislative leadership for outside sections.