UNDER THE RULES by which the Legislature governs itself (if “governs” is the right word these days), a legislative session lasts for two years. Within those 24 months, “formal business” may be conducted only in 18. Off limits are the month of December of the first session year (odd-numbered years) and the five months from August through December of the second one (even-numbered years).

The rule in question, Joint Rule 12A, doesn’t define formal business, but the Legislature’s glossary says that a formal session involves considering and acting on “matters that may be controversial in nature and during which roll call votes may be taken” – in other words, legislating.

Lawmakers adopted the new rule in 1995 to lengthen the one-year session then in effect, in which any bill not making it to the finish line was forced to return to the starting line, an obvious and woeful inefficiency. 

The rule was also adopted in part to atone for an act of chicanery by legislative leadership: On a December afternoon in 1994, a bill cutting capital gains taxes was quickly gaveled through both chambers without debate and without the knowledge of the vast majority of legislators. It bore the misleading title “An act providing tax relief for low income families,” and it arrived on Gov. Bill Weld’s desk as an apparent inducement to him to sign another bill, this one doubling the base pay of legislators. He signed them both, though he denied there was any quid pro quo.

When the trick was exposed, the embarrassment the hoodwinked lawmakers suffered was not entirely mollified by the pay raise they were getting. They wanted a few more guardrails, and the idea of eliminating formal sessions from August through December in even-numbered years made sense: It quarantined the November statewide election from lawmaker maneuvering. There would be no occasions for politically opportunistic votes before the election, and there would also be no opportunities for chicanery after the election, as happened with the capital gains tax cut bill, where the legislature’s leadership, having just been returned to office, felt confident that voters would forget about the ruse before the next election.

The few arguments against the new rule came mostly from Republicans, whose minority status puts them especially on guard against legislative mischief.

One of the Republican fears was that the Democratic supermajority would routinely suspend the rule when judging it expedient to do so. Barbara Anderson, the late legendary anti-tax irritant to the General Court accurately observed, “I’ve seen the rules suspended here in seconds.” Rather than a mere rule, which could be easily circumvented, she urged the Legislature to pass a law, which could not be. She was rebuffed.

Another Republican concern was that the purported distinction between a formal session and an informal one would be meaningless unless the power to determine what was not “controversial” and was therefore appropriate to be considered informally was vested in each lawmaker. Even though the guarantee was not expressly stated in the rule itself, Democratic state Rep. Frank Hynes of Marshfield, one of its authors, maintained unequivocally that was the proper interpretation. The Republicans needn’t worry, he explained at the time to the Globe, because “the objection of a single legislator can kill action in an informal session.”

In the three decades since Joint Rule 12A was adopted, the Legislature has rarely voted to suspend it, contrary to Barbara Anderson’s fears. With the exception of the Covid year of 2020, which upended timetables everywhere, the rule has been suspended only three times, and on each occasion (in 1999, 2003 and 2005) the vote to suspend came before the clock ran out on formal sessions, so it came following debate and by a roll-call vote.

But during this most recent legislative session, the line differentiating a formal session from an informal one was erased in the House of Representatives: A single House member can no longer kill a bill during an informal session.

As the end of the first session year approached in November 2023, on the Legislature’s front burner was a supplemental budget that would determine state policy about the emergency family shelter program, under chronic strain because of the housing crisis in the state and under acute strain because of the arrival of migrants fleeing humanitarian crises in other countries. 

Republicans in both chambers voted to restrict eligibility for the program, but they did not prevail. A conference committee was appointed to draft a compromise between the House and Senate versions of the bill, but by the final formal session of the year, the conference committee had failed to produce an agreement, and the Legislature did not vote to suspend Joint Rule 12A to return to a formal session later, as it had done in the past when outstanding and controversial business remained. That seemed to spell the end for the spending bill getting across the finish line before lawmakers reconvened with formal sessions in January. 

In the days following, however, the budget conference committee agreed on a compromise bill, making it ready for final enactment. Because the budget originated as a House bill, the House vote would happen first. House leadership rejected a Republican call to return to a formal session for that vote and instead scheduled an informal session.

Republicans prevented the bill from advancing that day, as they did on the next two days of the standoff, with each side accusing the other of gratuitous obstructionism: Democrats knocked Republicans for insisting on a meaningless formality, and Republicans blasted Democrats for refusing the easy and obvious solution to the problem, a formal session. 

Informal sessions have historically been lightly attended in light of the promise that no controversial measures will be taken up. But on the day of the fourth informal session, 14 Republicans and more than 100 Democrats arrived, easily establishing a quorum, after which the presiding officer inquired whether there was any objection to proceeding with legislative business. The Republicans offered no objection, apparently abandoning their quest for a formal session in the face of the Democrats’ show of strength.

Ironically, it was House Minority Leader Brad Jones who explained to CommonWealth Beacon that the longstanding interpretation of the rule, adopted to assuage Republican fears, was erroneous. As the House now construes it, the rule is much more limited: a single legislator cannot kill action in an informal session, but can only block action temporarily by doubting that a quorum is present. Once there is a quorum, the House can move forward with a vote. Which it did expeditiously that day, passing the budget, without debate and without a roll-call vote and sending it to the Senate.

Republicans and Democrats in the Senate reached an agreement to pass the budget without addressing the new interpretation of Joint Rule 12A in the House. That remains an unresolved difference of opinion between the chambers.

Last month, with a dozen House-Senate conference committees still negotiating final deals on the last day of formal sessions – and with some of those bills requiring roll call votes under the constitution — neither chamber took up the question of extending formal sessions, and in the morning hours of August 1, formal sessions for 2023-2024 appeared to come to an end. But the crescendo of public outrage that followed convinced the Legislature to reconsider its inertia, and both chambers have now endorsed a plan for an additional formal session.

The details about that session remain unresolved. Which bills (some or all of the dozen still in the conference committee process) will be taken up? The House position appears to be that only bills requiring a roll call vote under the constitution, like the multi-billion-dollar economic development bond authorization, require a formal session. Any other legislation, the House seems to be arguing, can be passed by a quorum of legislators meeting in informal session. As Speaker Mariano told State House News Service, informal sessions allow “a path for everything that doesn’t have a roll call.”

What happens during the remaining months of 2024 is still to be determined. There’s a lot at stake, including the fate of major bills on climate change, hospital oversight, and prescription drug pricing. Also at stake is whether or not legislation is passed in a formal session with the opportunity for debate and roll-call votes.

For the past three decades the Legislature has treated “matters that may be controversial in nature” to require the protection of those procedural safeguards, but that era may be at an end.

Margaret Monsell, a former assistant attorney general and former general counsel to the state Senate Committee on Ways and Means, is an attorney practicing in the Boston area.