“Lawmaking by Ambush”

Who among us has not wondered — exactly how does the Speaker of the House manage to keep such tight control on proceedings, passing bills he likes and bottling up those he doesn’t? Here’s a blow-by-blow example of a bill in the Speaker’s favored category and how it got passed by an overwhelming majority. The author is Representative Denise Provost, one of the two “no” votes on the bill, who sent this valuable information to her lucky constituents in a recent newsletter.  (Those interested in the substance of the bill, “Community Benefit Districts,” will find more information from Rep. Provost after the jump.)

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Some of you may be scrambling to discover how your representative voted on H.4546, the complex, consequential bill I’ve described in the previous section [ed. note: after the jump in this post]. Spoiler alert: only two of us voted against this bill. Let me explain, though, why you should not necessarily jump to negative conclusions, if your rep cast a “yes” vote.

When I take the T into Boston in the mornings, I read electronic news digests like the “MASSter List” and “POLITICO Massachusetts Playbook,” which sometimes give me good information about goings-on in the House. On the morning of Wednesday, May, 30, I saw that H.4546 had been polled favorably out of the Committee on House Ways and Means that morning. As soon as I looked up the bill, I could see that it was the latest iteration of bills I’d been voting against for years, except that the districts were no longer called “special assessment districts,” but the warmer, fuzzier “community benefit districts.”

H.4546 hadn’t been on the list of bills the House was planning to take up that day, and at the 11:00 am Progressive Caucus meeting, it was still not clear that we would be voting on the bill. I left the noon Democratic Caucus at 12:30 to take a meeting; roll call votes were scheduled for 1:00 pm. At 1:15 pm, an email came from the Clerk’s office, saying that amendments were in order for H.4546.

Soon after, there was a quorum roll call announcement, and I went to the Chamber. Several colleagues told me that they had not had their questions about H.4546 answered in caucus, but had been promised a meeting with a staff lawyer from the Speaker’s office to answer them. I was asked to attend, and readily agreed.

In a matter of minutes, “H.4546 on engrossment” appeared on the board, and the Court Officers chased the members out of their private conversations and into their seats. We got to hear a little speech about how Community Benefit Districts were a ‘helpful tool,’ stronger than Business Improvement Districts (BIDs), which would allow commercial areas to be spruced up; if, for instance, business owners wanted to put planters outside all the shops.

I felt quite confident that this vote was not about sidewalk planters, but the roll call machine was immediately turned on. Rep. Michelle DuBois of Brockton and I cast the only “no” votes. The members who had unanswered questions never got their promised “meeting;” the bill was passed to be engrossed, and the official tally of the vote showed that the roll call machine was closed at 1:46 pm.

By contrast, members of the Senate learned at least one day before that H.4546 would be taken up on Thursday, July 19. This little window of notice gave the American Civil Liberties Union (ACLU) of Massachusetts and other interested parties time to send expressions of concern to the senators. Fifteen members of the Senate voted against the bill, and at least one who voted for it did so provisionally, saying he might vote against enactment, depending on what he was able to learn.

Personally, I think that both chambers of the legislature should have given their members more notice about the upcoming vote on the bill. It’s a long, complicated bill, and its implications are not immediately clear. I have to wonder, for both branches of our legislature: what’s the hurry?

I have a fundamental philosophical objection to privatizing government functions, services and property. I recently voted against a bill (H.4546) which would allow the creation of appealingly-named “Community Benefit Districts, (CBDs) by private land owners. These private fiefdoms – which could include public property – would further institutionalize wealth inequality, by allowing the biggest landowners to exact fees from their neighbors, and spend for purposes devised by private boards of directors – unelected, non-transparent, and unaccountable.

The Boston Globe recently asked me to make the case against CBDs – in a mere 350 words. My analysis was published in the Sunday July 15 edition. Since the link no longer seems to work, here’s the content:

I recently voted against a bill allowing private property owners to map out and create “Community Benefit Districts.” Once municipally approved, these district corporations would assume many powers, including to charge “assessments” that all non-exempt property owners in the district would have to pay, even those who do not support the district or its plans.

Proponents say Community Benefit Districts are a “local option.” While it’s true the districts would need municipal approval, cities and towns would have to hold hearings within 60 days and then vote within another 45 days whether to approve the districts. This tight schedule would demand local staff time and might require special town meetings.

If approved, these district corporations could build infrastructure and facilities; acquire property, including parkland; operate transit services, enter contracts, and incur indebtedness. Coincidently, these functions are ones governments usually perform. This commonality makes the districts look like vehicles for broad delegation of municipal powers to private parties essentially operating as shadow governments.

Some say district assessments would be a new tax. These fees also resemble small-scale eminent domain takings since they extract private property. But eminent domain takings must be for public purposes. Community Benefit District corporations would be privately initiated and controlled, their one-time local approval the merest lipstick of operating under color of law.

Local governments have the power to assess fees on specific properties to pay for special benefits. Municipalities use these “betterment assessments” to fund traditional property improvements like sidewalks, sewers, or even golf courses. To pass constitutional muster, though, municipal betterments must meet accountability standards. Yet the proposed legislation turns the work of providing betterments over to private corporations, with no clear accountability.

Human societies recognize that there are separate public and private realms, an essential distinction in government because it determines which rules apply. There is no legal clarity whether muddled hybrids of public and private power such as Community Benefit Districts and Business Improvement Districts are subject to public integrity requirements like the open meeting, and public records laws.

Aggrieved parties would probably have to go to court to get answers to the many questions that adoption of the Community Benefit District model would raise.

These districts are designed to provide additional services within designated district, creating a class of ‘gated communities’ within cities. Once they have the blessing of their local governments, CBDs are empowered to collect fees from other landowners within the district; those who are just 30 days late in their payment get liens slapped on their property. CBDs are designed to base governance, access, and services on wealth, and so undermine the civitas.