ASLCS - The Journal - Rules Reform

Rules Reform

By:
Joseph W. Mayo
Clerk of the House
Maine

Volume 3, Number 2 Fall 1997

"Every Member who shall neglect to give his attendance in the House for more than six days after the sessions commence, shall on making his appearance therein, be held to render the reason of such neglect; and in case the reason assigned shall be deemed by the House sufficient, such member shall be entitled to receive pay for his travel, and not otherwise; and no member shall be absent for more than two days without leave of the House; and no leave shall avail any Member who retains his seat more than five days from the time the same was obtained."
Rules of the Maine House, 1820

"Every member who neglects to attend the House for more than six days after the session commences must, on making an appearance therein, be held to render the reasons for the neglect; and in case the reason assigned is deemed by the house sufficient, that member is entitled to receive pay for that member's travel, and not otherwise; and no member may be absent more than two days without leave of the House; and no member may have such leave unless it is reported by the Committee on Leaves of Absences; and no leave of absence may avail any member who retains the member's seat more than five days from the time the leave was obtained."
Rules of the Maine House, 1995

"A member may not be absent more than 2 days without leave of the House; and a member may not have such a leave, unless it is reported by the Committee on Leaves of Absence."
Rules of the Maine House, 1996

For 175 years the Maine House of Representatives followed a rule that changed slightly through the years but still remained a linguistic version of a train wreck. In 1996 after months of planning and effort on the part of legislators and staff this rule was rewritten and simplified as part of a complete overhaul of legislative rules.

The Maine Legislature as an institution had its origins in the Massachusetts Legislature. Maine was part of Massachusetts until 1820 when Congress established Maine as the 23rd state as part of the Missouri Compromise. Our practices are time-honored and steeped in tradition. The decorum of a House session remains very strict. Members do not mill about or speak aloud unless recognized by the Speaker. While we are in session, we prohibit everything from chewing gum to reading an unfolded newspaper, standing in the aisles, or turning your back to the Speaker. Strict adherence to the ways of old makes radical change unlikely in our environment. Change to be effectively carried out must be well planned and patiently implemented. When Maine people respond to "people from away" you start to get the idea of this: An elderly Maine man, asked if he has lived here all his life, will inevitably respond - "Not yet." When someone who was born in Maine but whose parents are "from away" tries to claim native status, the response will be: "If your cat had kittens in the oven, you wouldn't call them biscuits, would you?" Given our Yankee traits I was concerned when assigned to a committee to recodify the Joint Rules of the Legislature.

Former Governor John R. McKernan, Jr., undertook an initiative to bring Total Quality Management (TQM)1 to Maine State Government. Maine legislators, who are a hearty group, decided to join in the effort. They undertook a top to bottom review of our activities and the rules that guide those practices. We held meeting after meeting discussing everything from how we should draft Expressions of Legislative Sentiment2 to the appropriateness of conducting fire drills. In many ways that effort changed the legislative culture, not dramatically, but in a subtle way that continues to this day. We appear to actually enjoy periods of self-examination and will often act upon what we've seen. We aren't as inclined to hang on to the old ways. I had not realized this when my work began on the TQM Subcommittee on Rules.

In October of 1995 a group of legislators and staff met for the first time to begin the process of rules revision. We had been given no limits as to what we could discuss. We went after every issue that any member of the group wished to consider. Our subcommittee consisted of 4 Senators, 6 Representatives, the Secretary of the Senate, the Clerk of the House, 2 staff members from the Office of Policy and Legal Analysis, 2 staff members from the Office of the Revisor of Statutes and the Legislative Information Office Coordinator. The Legislative members were evenly split between the two political parties.

As stated above, every member of the subcommittee could raise any issue they wished. At our first meeting we established a "bin." Members of the subcommittee could raise an issue at any time and have it recorded in the "bin." Over seventy-five items were recorded using this method. Countless other issues were discussed and resolved immediately and therefore not placed in the "bin." Items were not checked off until all members of the committee were satisfied. Though it did not seem that way at the time, the best procedural decision we made was to determine that if we could not reach consensus on an issue we would leave it in the "bin" until finally resolved. If we were unable to reach consensus on an issue when our time had run out we simply would leave that portion of the rules in place without change. Therefore, the only recommendations taken to the floor of the Legislature were those that all members of the subcommittee supported. The use of this method from the beginning left no member of the subcommittee out of the process. No one member was in the minority. Everyone embraced the final end product, and we issued a report that had a much better chance of being adopted.

My concern that this process could end in a stalemate was unfounded. The relatively few issues that were left in the "bin" and not addressed by the group were not substantive rule changes. Some of the issues raised were not properly within the subcommittee's work area. These issues were referred to the chamber rules committee or to the appropriate legislative officer. Some issues were not addressed because the subcommittee thought that a successor subcommittee might undertake the task. Concept Drafting3 and related issues were felt to be too radical for the subcommittee's first report.

At our first meeting we began a complete review of the Joint Rules. We also made a risky but important decision. We assigned staff members of the subcommittee the responsibility of preparing a draft recodification of the rules. Committee members asked the lawyers, legal technicians, legal proof readers and chamber officers to "clean up" the language. I was concerned that we might get ahead of the people we needed the most, our members, but we plowed ahead.

The staff of the Revisor of Statutes Office was first to provide a draft. The legal proof readers looked at language that in many cases was 175 years old and brought it up to a more modern lexicon. The full staff group met to review their work and to examine the rules one at a time. Our overriding concerns were twofold: clarity and brevity. Keep it simple, keep it brief.

Those of us who work on the floor were called upon to explain the underlying meaning of some of the rules. Staff members who do not work closely with the rules that guide legislative procedure appeared to be fascinated and enjoyed the process. We were a productive work group and were able to present our results to the subcommittee after a few weeks.

When the subcommittee looked at the first draft written by staff, it was apparent that the process was effective. Our legislators did not have time taken up with "wordsmithing" but could concentrate on the whole picture. They gave us direction. We went out and researched and drafted. They reviewed and we joined the discussion. The staff people who generally do not have an opportunity to work outside a limited area were excited and inspired to have members ask for their opinions regarding the rules. These relationships eased my fears and allowed me to realize that the process might actually work. We completed our work so easily and so well that we decided to tackle the Rules of the House and Senate as well. This task was not in our original charge and this initiative was not passed up the administrative ladder to the full TQM committee. This process was even easier to accomplish as we had broken down into two work groups split by chamber. The results were directly submitted to the Presiding Officers for consideration and then submitted to each chamber for approval. An order was prepared for each chamber's separate consideration. The changes for the House and Senate rules were passed prior to the consideration of the joint rules. These changes to the House and Senate rules were ultimately adopted without opposition.

The final "good" decision the subcommittee made was to present our report to the Legislature currently in session with the recommendation that the rules become effective after adjournment. In effect members adopted rules that they would not use but were passing on to the next Legislature. It has been the custom of successive Legislatures to adopt the rules of the prior Legislature without major revision. We felt that if the next Legislature was presented with new rules that were adopted but not used by the prior Legislature, the new rules stood a good chance of being retained.

During our deliberations some unintended but nonetheless important things occurred, the most notable being the granting to legislative staff and officers equal participatory rights and authority. The elected members of the subcommittee insisted that those who were not elected participate at the same level. Opinions were requested and sometimes demanded. This was more unnerving for the staff than it was for the elected members. Legislative staff who are accustomed to performing as instructed were not accustomed to freely speaking their opinion. This process enriched the working lives of legislative staff. Staff who were given the opportunity to serve gained not only an insight into what the rules mean but also an insight into what it means to be a decision maker in the legislative process. The ability of staff to empathize with members who have the pressures of decision-making helps create better employees. A staff person who has ownership in the process is more productive and more responsive to the needs of the elected members.

When the report was completed the subcommittee began the process of getting the changes accepted. The new rules were to be presented to the Legislature in a joint order, which would require a 2/3 vote of the members of each Chamber for passage. Under the Joint Rules amendments may be adopted by a majority vote only up to the third Friday in January of the first year of the term. Knowing full well that the requirement of gaining the support of two-thirds of the members of each house made their task more difficult, the subcommittee presented their draft. The subcommittee required that each member of the Legislature be given all the information he or she requested. A series of meetings was scheduled. First the full TQM committee considered the report, giving ten additional legislators an in-depth review. Some minor refinements were suggested and the subcommittee adopted them. The next group the subcommittee presented its report to was the Legislative Council.4 The Legislative Council is the group that had originally established the subcommittee. I had anticipated that this would be the toughest hurdle. However, members of the Legislative Council made no suggestions and appeared to completely embrace the report.

Gaining the support of the full TQM committee and the powerful Legislative Council was a crucial step in the process. The opinion of the Legislative Council carries a lot of weight in our Legislative process. It is important to remember that Maine has a part-time Legislature. Members do not have any personal staff. The average member must depend on their leadership for information and guidance. Without the support of the Legislative Council the report would have been dead.

The report was next submitted to the full membership of the Legislature. The unusual step of requesting that all members of the House and Senate meet in a joint caucus was presented to the presiding officers. They approved the request and the subcommittee conducted its final presentation. Members asked many questions and the subcommittee members continued to answer until the last question was answered. The information campaign was a success.

A joint order to amend the rules was drafted and placed on the calendar. When the order came up for discussion a minor technical amendment was proposed and adopted. No other debate occurred and the order passed as amended without opposition in either chamber. What was potentially a divisive issue in the end became an exercise in cooperation and consensus.

In summary, this process worked because:

The process was driven by consensus.
Members of the subcommittee worked in an informal cooperative spirit and no subject was off limits for discussion.
The Chairs of the subcommittee were rank-and-file members of the Legislature and they had no perceived agenda.
The final decision makers were fully informed.

It is my belief that this review and recodification needs to occur on a regular schedule, once a decade, as opposed to every other century. In doing so, more members and staff can become invested in and knowledgeable about the rules. A thorough knowledge of the rules not only removes the mystery but also makes them easier to apply and enforce.

Endnotes

Total Quality Management is a management philosophy developed by W. Edwards Deming and others aimed at making an organization more responsive to the needs of those it serves. One aspect of the philosophy which originally seemed quite radical was the inclusion of employees in the discussion of how to improve quality. The team approach is often used to involve and empower employees in this process.
Expressions of Legislative Sentiment are orders of the Legislature that recognize individuals or groups for an outstanding accomplishment.
Concept drafting involves the presentation of a idea to a committee as opposed to a drafted bill. The committee would then draft the bill if the concept is approved.
The Legislative Council consists of the ten elected House and Senate leaders.

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