The Legislative Process in Massachusetts
Lawmaking in Massachusetts
The principal task of all legislatures is to make law. Here in Massachusetts lawmaking is a direct outgrowth of the development of the Massachusetts deliberative body called the General Court. From its earliest beginnings, the Colonial General Court was embodied with executive, judicial, and legislative powers, and from these powers gradually evolved the current system we now call the legislative process.
Under the Massachusetts Bay Company Charter, King Charles I gave the colonists the power to govern themselves and to determine their own destiny. One of the provisions of the 1629 Charter allowed the General Court the authority:
...to make, ordeine, and establish all manners of wholesome and reasonable orders, lawes, statutes, and ordinances, directions, and instructions, not contrarie to the lawes of this our realm in England.
However, the Puritan leaders, to perpetuate their elite ruling status, failed to share with the new settlers the mandate that the General Court had been granted the sole lawmaking authority in the colony. Uncovering this deception, the General Court decreed in May 1632, that the sole power to make and create laws was vested in the General Court.
Once the General Court assumed this lawmaking authority, the next major event that shaped the lawmaking process in colonial Massachusetts occurred nine years later. In 1641, the Body of Liberties was adopted. One of its provisions declared that: every man, whether inhabitant or foreigner free or not free had the right to attend any public meeting and by speech or in written form move any lawful and seasonable and material question, or present any motion, complaint, petition, bill, or information.
The importance of this provision is that it forms the basic underlying principle of the "Right to Free Petition," a tradition that continues with our contemporary legislature.
Over the next several years the General Court adopted significant procedures to govern their body, several of which have been carried over to our modern-day Legislature. For example:
1. 1641: the General Court required that any matter to be voted on to be published in written form.
2. 1641: the General Court established a committee like our Committee on Bills in Third Reading.
3. 1644: the General Court established Joint Committees;
4. 1645: the General Court established Conference Committees;
5. 1648: Office of the Clerk established;
6. 1654: the General Court required legislation to be introduced in the first week of the session;
7. 1657: the General Court required that all important measures to be read three times on three separate days.
The Legislature continued to expand their authority to propose and make laws in the years following the colonial period. By 1780, however, something happened that would forever affect the sole lawmaking authority of the Legislature. With the ratification of the Constitution, the Legislature was empowered to introduce legislation and pass laws. The Constitution, however, also created a shared responsibility between the Governor and Legislature in the lawmaking process. Where the Legislature was given the authority to make laws, the Governor also was empowered to reject law with the veto.
Equally important was the sharing of this lawmaking responsibility with the citizens of the Commonwealth. This new Constitutional tenant provided that all persons have the right to file legislation. The "Right of Free Petition" was formally established by Article XIX of the Massachusetts Constitution. This portion of the "Bill of Rights" states:
The people have a right, in an orderly and peaceable manner, to assemble to consult upon the cannon good: to give instruction to their representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer.
The relationship between the Legislature, the Governor or Executive branch, and the general public is an important concept in the lawmaking process. It is in this interrelationship that ideas are formulated to address issues that form the basis of new laws.
Ideas need starting points, and they generally come from many different sources. Sometimes it is an issue raised by a legislator. At other times it is a proposal forwarded by a governmental agency seeking to implement a change in public policy. Oftentimes it seeks to address a problem expressed by a local government official or by a constituent. Once this idea is defined it becomes the responsibility of the Legislator to file this idea as a Bill. The full Legislature must then decide whether this idea has merit. If they do, the Bill will be sent to the Governor to be signed into law. Once the Governor signs it, the citizens of the Commonwealth are responsible for obeying the new law. This brief outline describes the lawmaking process: the ability to shape and form an abstract idea into a reality that will eventually be codified in a society's body of laws
Once an idea has been formulated it is introduced to the Legislature. House and Senate members can use several vehicles to advance certain matters in their branch. However, only Bills and Resolves so through the formal system known as the legislative process.
Five documents are used by Legislators to bring a particular matter before the Legislature for consideration: Petitions, Bills, Resolves, Resolutions, and Orders. The Governor is also allowed a mechanism to submit legislation in the form of a Message to the Legislature.
Petitions are the basic vehicles in the legislative process. They accompany either Bills, which are used to establish or change laws; or Resolves, which do not contain an enactment clause and are intended to provide special or temporary action, such as establishing an investigative commission or to make a payment of a claim. Resolutions, which can also accompany a Petition, are used for temporary purposes, such as congratulating individuals and memorializing Congress. Orders are temporary formal motions and are used for such purposes as to establish special committees and rule changes
As in all organizations, the Legislature has established a system of rules to govern its internal administration. One such rule limits Bill introductions to specific dates. Bills must be filed with the appropriate Clerk's office by the third Friday of January at the beginning of the first annual session of the Biennium.
State officers and agencies, such as PERAC, can also file legislation but they must do so by the first Wednesday of November prior to the start of the next legislative session.
Bills are filed with the appropriate Clerk's Office of the Bill's sponsor. Simply put, a Senate member files with the Senate Clerk's Office, a House member with the House Clerk's Office. The Clerk then processes and assigns the Bill a "docket number." The document is then numbered and printed, placed on the Orders of the Day for introduction before the Legislature. After its title is read, which corresponds to its first reading, the Bill is referred to either a Standing or Joint Committee, depending upon the subject matter as determined by the Rules of the House or Senate.
Committee work makes up the nuts and bolts operation of the Legislature. It is here that the most detailed work of the Legislature takes place. Because of the number of Bills that are filed each year and the complexity of many of their subjects, Legislators must have confidence that a Committee has carefully studied and considered each Bill before it brings a Bill to the floor of a particular branch of the Legislature.
Under the Rules of the House and Senate, the Massachusetts Legislature uses three types of Committees: Standing Committees, Joint Standing Committees, and Conference Committees. A Standing Committee is comprised of members from one particular branch; it is made up of either Senators or Representatives. The number of members for each Standing Committee depends on the appropriate branch's Rules.
Similarly, the number of Standing Committees varies between branches.
In some instances, Standing Committees act together as Joint Committees where Senators and Representatives of different Standing Committees convene as one Committee. For example, the Rules of both branches allow the Ways and Means Standing Committee to consider matters concurrently. Likewise, the two Standing Committees on Rules may act jointly to suggest measures that will "facilitate business of the session."
Senators and Representatives serve together as members of Joint Standing Committees. Joint Committees have a co-chair appointed from each branch. Each Joint Committee is made up of six (6) Senate members and eleven (11) House members.
Bills that have been introduced are referred to an appropriate Committee for study and review. Specific Bills regarding fiscal matters are referred to one of the Ways and Means Standing Committees depending on its sponsor. The Committee establishes a hearing date and invites legislators, members of the general public, and other interested parties to appear before it and comment on the relative merits or faults of the Bill. Each witness is responsible for providing testimony to educate the legislators of the Committee. This can be accomplished by providing information to support a particular point of view or answering any concerns that the Legislators might have about the efficacycy of the Bill. Hearing dates are on the General Court website.
Once the hearings are held, the Committee decides whether the Bill is a relevant proposal or not. The Committee is responsible for "reporting out" legislation before it can be sent to a branch floor for further consideration. At this time, the Committee must determine whether to:
1. Pass the Bill as introduced; or
2. Change the Bill by amendment; or
3. Combine several Bills into a single Bill with a new number; or
4. Combine several Bills into a study order; or
5. Refer a bill to another Committee; or
6. Decide that the Bill Ought Not to Pass.
Report of a Committee
After a Committee decides whether the proposal is relevant or not the Bill is reported out of the Committee to one of the branch floors. Under the Joint Rules Committees are required to report most Bills by the third Wednesday of March in the second year of the session, and within thirty days on all matters referred to the committee after the third Wednesday of February. Sometimes a Committee will request an extension from this mandatory reporting deadline.
Bills that are considered subjects the Legislature should address are given Favorable Reports from a Committee. Favorable Reports recommend that a Bill be considered:
1. in its original form;
2. with certain changes; or
3. as a new draft of the Bill
Conversely, the Committee can Report a Bill Ought Not To Pass. An "unfavorable report" such as this effectively "kills" the legislation for the legislative session unless a Legislator can change this report from the floor.
Both types of Reports are published in the House or Senate Journals, depending on the sponsor and branch of origination. A Bill that has its "Ought Not To Pass" report accepted will not be considered again at that legislative session unless a Legislator can successfully reverse this Report. Although this might be a bitter disappointment for the sponsors and supporters of the legislation, the "unfavorable report" should not be taken personally. Many Bills that are later signed into law received an unfavorable report the initial year they were filed. Generally, these Bills are reworked and refiled for consideration during the next legislative session. After many long hours reworking them, they are finally ready to become a law. Some Bills are filed year after year before they are finally ready for floor consideration
Bills reported from a Committee are placed on the Orders of the Day, also called the Calendar. Under the section "Reports from Committee," Bills are listed by the type of Report they receive either an "Ought Not To Pass" or a "Favorable Report." All Bills receive at least one reading when their titles are read at their introduction. Bills that are reported favorably are now ready for a Second Reading and floor action. The Bill's title is then read a second time before the appropriate legislative branch, and is now open to debate and amendment.
Debate on a Bill's topic serves several purposes. It offers the sponsor a chance to communicate to other Legislators the Bill's intentions and a chance for rebuttal to Legislators who might oppose the measure. Oftentimes a Legislator might not fully understand the scope of a proposed Bill. Allowing debate on a subject matter gives Legislators the opportunity to listen to arguments to help them decide the appropriate action on a Bill. Finally, debate can also serve as a floor strategy for delaying action on a Bill, giving proponents or opponents an opportunity to gather support for their position.
Bills may only be amended by Legislators. Amendments are Legislators' proposals to change the content of a Bill. In many instances, key votes are made on amendments rather than the final vote passing a Bill. The strategy behind the amendment process is simple: it is a method of either strengthening or weakening the Bill, depending on the viewpoint of the Legislator. Generally, Bill management on a branch floor is left up to the Chairperson of the committee the Bill has been reported out of. The Chairperson must try to influence the legislative branch to either accept, reject, or reach a compromise on the proposed amendment.
After a Bill's Second Reading it is then ordered to a Third Reading. Again, it is open to floor debate and amendment. Following its Third Reading it is referred to the appropriate Standing Committee on Bills in Third Reading. The Committee examines the Bill to determine whether it is constitutionally correct and ready for passage. The Bill is then reported from the Committee on Third Reading and is ready to be Engrossed
Engrossment is the formal name designating that a Bill is ready to be printed with any changes or amendments added to it. Basically, Engrossment shows that a Bill has received preliminary approval, and is considered at its halfway mark in the legislative process. Once a Bill is Engrossed by one of the legislative branches it is sent to the other branch where it will be read three times, debated, and amended, and engrossed. Once a Bill has been engrossed on this side it is sent back to the branch from which it originated for Enactment. Two things can happen at this stage. If a Bill is returned from the second branch without an amendment the original branch is free to Enact the Bill. The other option is to agree or disagree with any amendments attached to the Bill from the other branch.
It is not uncommon for a Bill to be sent back to the originating branch with an amendment from the other branch. When this happens, the originating branch has two options: either concur with the amendments from the other branch; or, reject the amended version. If one of the branches pursues the latter option a Conference Committee must be established to work out any differences between the two branches
When a stalemate develops between branches over an amended Bill, a Conference Committee is established to try to resolve the disagreement. A Conference Committee is made up of three legislators from each branch, chosen by the Speaker of the House and the Senate President. Two of the members are chosen from the majority party; the remaining member is selected from a minority party. Usually, the Chairperson of the Committee where the Bill originated from is selected as the Chairperson of the Conference Committee. This selection is often made to acknowledge the Chairperson's expertise and knowledge of the subject area.
Conference Committee members are expected to uphold the position of their prospective branches. However, each Conference Committee is responsible for working out a compromise that both branches can agree upon. Once a majority of Conference Committee members reach an agreement a Conference Report is sent to the floor from which the Bill originated. A Conference Report cannot be amended; it can be only accepted or rejected by this branch and sent to the other branch for acceptance or rejection. Conference Reports that are accepted by both branches are sent to the Governor for signature or veto. Rejected Conference Reports are sent back to the Conference Committee for further negotiations
Enactment is the final legislative hurdle before the Bill is sent to the Governor's desk. The term means that the Bill is in its final form and has been agreed upon by both branches. The Bill is printed with the exact language that will appear in its official Act form
Role of the Governor
When a Bill has been Enacted by both the House and Senate and signed by the Speaker of the House and Senate President, it is sent to the Governor's desk. The Governor now has several options regarding this Bill. First, the Governor can simply sign the Bill and it becomes a law. If an Emergency Preamble is attached to the Bill it will become effective immediately. Otherwise the effective date is ninety (90) days after the Governor signs the Bill. Second, the Bill can be vetoed if the Governor does not agree with its content. When a Bill is vetoed the Governor will generally send it back to the Legislature with a Message explaining the reason for the veto or with an amendment. The Governor can also allow a Bill to become law by not signing it within ten (10) days when the Legislature is in session. Finally, the Governor has the option to strategically use the Pocket Veto to reject a Bill when the Legislature has adjourned for the year and the Governor has not formally vetoed the Bill within a ten-day period.
A Bill vetoed by the Governor is returned to the Legislature with a Message stating the Governor's objections to it. The Legislature can override this veto and reenact the Bill into law. A two thirds vote of each branch is required to override a gubernatorial veto.
The New Law
Once a Bill has passed both the House and Senate, and is enacted and signed by the Governor, or the House and Senate overrides a Governor's veto, it is given a Chapter number and added to the Acts and Resolves of that legislative session. The Chapter number is a chronological catalog of the Bills that were passed into law
during the legislative session.