Understanding the Role of “Outside Sections” in Massachusetts Law

  by Tara Myslinski

   Practice Tips

In Massachusetts, fiscal appropriations bills often contain “outside sections,” which are pieces of legislation that may – but frequently do not – relate to the appropriations themselves. Although the majority of outside sections make minor legislative changes or technical corrections to laws, legislators can pass substantive legislation via an outside section. For example, one outside section of the 2021 budget expanded abortion access and another regulated the use of restaurant logos and trademarks by delivery services.[1]

While some outside sections amend the General Laws (and are easily found once codified), legislators still can pass them with minimal advance notice and without the typical public debate and hearing process. Even more elusive are outside sections that are “Special Acts.” Legislators can also pass these with minimal notice and debate, but because they apply to particular state agencies, towns, or constituencies (rather than the general population), they are never codified in the General Laws. As such, they are easily overlooked when researching Massachusetts law.[2] For all these reasons, understanding how outside sections become law, how to monitor them, and where to find them, are important parts of researching Massachusetts law.

The Typical Legislative Approval Process

A typical bill must be filed by a deadline at the beginning of each biennial legislative session (although the Governor may file legislation at any time). It then follows a familiar path before becoming law: public committee hearings; several rounds of floor votes (and potential floor amendments); and approval in one chamber, followed by a parallel process in the other.[3] If necessary, the two chambers negotiate differences, vote again, and finally send the bill to the Governor. Most bills never get that far. While legislators filed more than 6,000 bills in the 2019-2020 legislative session, only 539 became law.

Legislative Approval Process for the Annual Appropriations Bill

In sharp contrast, the approval process for the annual appropriations (state budget) bill, to which outside sections are routinely appended, is quite different.[4] It is fast-tracked and must pass for the government to continue to operate in the normal course. This makes appropriations bills attractive vehicles for passing non-appropriations legislation on an expedited timetable, through the use of outside sections.

The Governor initiates the budget process by filing a proposed budget bill in January, which may or may not contain outside sections. It goes directly to the House Ways & Means Committee for debate and possible amendment – including addition or deletion of outside sections – but no public hearing. The full House then votes on the Ways & Means Committee’s version of the budget and sends it to the Senate Ways & Means Committee, which debates and amends the House’s version (including adding its own outside sections) but holds no public hearings. The Senate then votes on the Senate Ways & Means Committee’s version of the budget. Differences between the House and Senate versions send the bill to conference committee, which negotiates a compromise (known as a conference report) without public hearings. The House and Senate must vote up or down, without amendment, on the entire conference report including outside sections.  

The Governor may veto outside sections, but cannot line-item veto or amend them. Opinion of the Justices, 411 Mass. 1201, 1215-16 (1991). During the 2019-2020 legislative session, legislators passed approximately 350 outside sections as parts of the annual budget or supplemental budget bills and passed over 30 more as parts of the Transportation Bond Bill.[5] The FY2022 budget that passed in July 2021 had more than 100 outside sections.

The History of and Validity of Appending Outside Sections to Appropriations Bills

Article 63 to the Amendments to the Massachusetts Constitution mandates an annual state budget but does not mention “outside sections.” The practice of adding them to appropriations bills, however, has existed since the passage of Article 63 in the 1917-18 Constitutional Convention.[6] Originally, they related solely to appropriations, but starting in 1975, when an outside section to the FY1976 budget eliminated certain unemployment benefits, legislators have used them to pass legislation on subjects unrelated to appropriation. Id. 

While there are critics of using outside sections for non-appropriations purposes,[7] the Supreme Judicial Court has held that outside sections are valid and enforceable laws, rejecting the assertion that they violate Article 63. First Justice of Bristol Div. of Juvenile Ct. v. Clerk-Magistrate of Bristol Div. of Juvenile Ct., 438 Mass. 387, 408 (2003). Moreover, unless expressly tied to the fiscal year of the appropriations bill, legislation passed through outside sections is effective until repealed. See Finch v. Commonwealth Health Ins. Connector Auth., 461 Mass. 232, 239 (2012) (holding that an outside section expressly limited to one fiscal year did not extend beyond that timeframe, but acknowledging that “outside sections of appropriations acts certainly may be used to enact general legislative amendments”).

Researching Outside Sections

Once enacted, a bill — including its outside sections — becomes one of the “Acts and Resolves” of that legislative session (also referred to as “Session Laws”). If the Session Law amends a general law, even by an outside section, the amendment will be easy to find via basic online research methods once the General Laws are updated. For instance, Outside Section 51 of the  FY2019 Budget amended M.G.L. c. 130, § 44, concerning the minimum legal size of lobster for sale.

Tracking pending legislation in an outside section, or searching for Special Acts enacted by an outside section (see, e.g. Final FY2020 Budget at § 103, establishing an eviction diversion task force) is more difficult. This is because outside sections are not labeled as such.  That said, annual and supplemental budget bills are titled “An Act Making Appropriations for Fiscal Year” and “An Act Supplementing Certain Existing Appropriations,” respectively. Bond bills and other appropriations bills, although not uniformly titled, frequently contain the terms “investment” and “bond.” See Chapter 383 of the Acts of 2020 (entitled “An Act Authorizing and Accelerating Transportation Investment”). Outside sections typically begin at “SECTION 3” of these bills.

Here are some other tips for finding outside sections:

• The Massachusetts Legislature’s website catalogs all filed bills and their progress through the Legislature; it allows for a simple text search of bills and enacted Session Laws since 1997. It also provides consolidated access to annual budget bills, allowing for tracking of the current bill from filing through the Ways & Means Committees, for the most recent ten years. See https://malegislature.gov/Budget/.
• Unofficial budgets that break out outside sections back to 2008 are available at https://www.mass.gov/lists/budget-archives; see also https://budget.digital.mass.gov/summary/fy22/outside-section.
• Lexis contains proposed bills from 1990 onward. Results can be filtered for time period and bill status (enacted) and Lexis allows for sophisticated Boolean searches (g., appropriations and supplement! to locate supplemental budgets).
• Hein Online, available through the Social Law Library, permits Boolean searches of all Massachusetts Session Laws from inception.
• Pre-2010 Session Laws are available by number at the Massachusetts state library archive website.

While harder to locate, outside sections are still Massachusetts law. Conducting thorough research requires being aware of the existence of outside sections – whether for legislative history research, tracking potential legislation, or reviewing Special Acts – and where to find them.

[1] See Acts of 2020, c. 227, §§ 40 (abortion access) & 100 (restaurant logos).

[2] See, e.g., Acts of 2020, c. 227, § 101 (requiring the MBTA to take certain procedural steps before making service reductions). Special Acts not passed in outside sections are sufficiently difficult in their own right to locate and track, but those difficulties are outside the scope of this article. See, e.g., Acts of 1979, c. 565 (exempting the City of Cambridge from certain major zoning statutes that are otherwise applicable to municipalities).

[3] See Joint Rules of the Massachusetts Legislature, available at https://malegislature.gov/Laws/Rules/Joint.

[4] Outside sections also appear in other appropriations bills, such as bond bills, see, e.g., Chapter 383 of the Acts of 2020 and supplemental budgets. 

[5] Several of these outside sections concern dates on which other sections take effect, or repeal previous outside sections, which brings to light the difficulty in tracking their fate.

[6] See Herbert P. Gleason & Thomas H. Martin, State and Local Government, 28 Ann. Surv. Mass. L. 197, 208-09 (1981).

[7] See, e.g., Long Term Care Pharmacy Alliance v. Ferguson, 17 Mass. L. Rep. 372 (Sup. Ct. 2004) (observing that “the whole process would work much better if the General Court would adopt important, and fiscally significant, legislation in the more traditional way”); DirectTV v. Commonwealth, 31 Mass. L. Rep. 48 (Sup. Ct. 2012) (citing plaintiff’s contention that an outside section was a “backdoor” legislative process); Herbert P. Gleason & Thomas H. Martin, State and Local Government, 28 Ann. Surv. Mass. L. 197, 208 (1981) (criticizing outside sections as “bypass[ing] all usual legislative channels and propos[ing] general legislation which must, to be sure, be voted upon by the membership – but in a form and at a time in the session where there is overwhelming pressure on the membership to vote yes”).

Tara Myslinski is Senior Counsel at Hometap, a fintech startup based in Boston. Formerly, she was Senior Lead Counsel, Regulatory & Compliance, for the Massachusetts Department of Transportation. Prior to going in-house, Ms. Myslinski was a business litigator, most recently with the litigation boutique O’Connor, Carnathan & Mack. This article represents her own views and research, and not those of her employer, Hometap, or her former employers.

Thanks to Ryan Ferch of the Office of General Counsel at MassDOT/MBTA, and Amy Nash, of  the General Counsel’s office at Nixon Peabody for help with this article. Thanks also to Gavin Coyle, a third year student at Columbia Law School, and to Jessica Pisano Jones of the Social Law Library for assistance with research for this article.