Statehouse Subversion

In the mid-1990s, a group of liberal activists, with the
support of a few wealthy donors, developed a new strategy to reduce the power of
money in national politics. Let's not waste so much energy trying to get minor
reforms through Congress, they reasoned. Let's take the battle to the states and
push for something meaningful, something that could really change the way
campaigns and elections are conducted.

The idea was public financing: a system that would make government money
available to qualified candidates, freeing them from groveling for contributions.
The plan was to start in states with a tradition of reform--places like Maine,
Vermont, and Massachusetts--where people can still exert some influence on their
legislatures. It was an idea that made sense, states being the laboratories of
democracy, and all that. And it started out well, with Maine and Vermont--and,
later, even Arizona--enacting "clean elections" laws.

But there has turned out to be a large fly--more like a hornet--in the
reformers' ointment. His name is Thomas M. Finneran. A garrulous and brashly
opinionated working-class Democrat from Boston, he is the Speaker of the House in
Massachusetts. He is bald and bantamlike, with piercing eyes when he's serious
and a wide, rollicking grin when he's in the mood for backslapping. He was
elected Speaker in a bold power play in the spring of 1996, about the time clean-
elections advocates were getting organized in New England. By the time efforts to
create a public-financing system were under way in Massachusetts, Finneran had
gained so much control over the legislature--indeed, over state politics--that
many observers regarded him as the de facto governor. This presented a problem
for reformers because Finneran is not the kind of Democrat who enjoys idealistic
talk about "cleaning up politics." What Finneran cares about most, as he will
tell anyone who wishes to listen, and often at great length, is keeping his
legislature from spending money irresponsibly. Giving government money to
political candidates would be "frivolous," he said early on. "I just don't see
it."

Finneran's Wake

That would be the end of the story in most states. But reformers chose
Massachusetts for a reason: The state constitution provides a means of citizen
lawmaking through the initiative petition. So when legislators failed to enact a
public-financing law brought to them by the newly formed Mass Voters for Clean
Elections in the early months of 1998, the stage was set for the question to be
decided at the ballot box. The Mass Voters group, led by David Donnelly, an
organizer who had steered the victory in Maine, joined with the usual array of
good-government reformers--Common Cause, the League of Women Voters, the
Massachusetts Public Interest Research Group--and enlisted the support of such
prominent citizens as former Governor Michael Dukakis; Archibald Cox, the
Nixon-era special prosecutor; and Derek Bok, a former president of Harvard
University.

There was little organized opposition to clean elections, and the law was
approved by 58 percent of the voters in November of 1998, with 30 percent voting
no and 12 percent registering no opinion. (Leaving aside the blanks, the margin
was 66 percent to 34 percent.) As it turned out, that was the easy part.

More than three years after the voters of Massachusetts spoke so decisively,
not a dime has been made available to candidates. The law is in danger of dying a
slow and painful death. Finneran seems not to care a whit that voters have
weighed in. Here is how he reacted on a local television news show in the first
week of this year, when told of an angry citizen who called him an "emperor
wanna-be" who defies the people's wishes: "I feel sorry for him that he is so
confused that he thinks welfare for politicians--which is what clean elections
is, a handout for Jerry Springer-like candidates--somehow trumps the legitimate
needs of people who suffer from mental retardation, mental illness,
homeless[ness] ... the list goes on and on and on."

Some advocates of campaign finance reform now worry that if Finneran succeeds
in blocking the law in Massachusetts, he will kill whatever national momentum has
been building for public financing. After all, if you can't get clean elections
in a liberal bastion after voters have endorsed it, how will you be able to sell
the reform in, say, Indianapolis or Tallahassee? As Scott Harshbarger, the former
Massachusetts attorney general who is now the national president of Common Cause,
says, "It could be our Waterloo."

The law that voters created would restrict participating
candidates to $100 contributions. In exchange for abiding by an overall spending
limit (no more than $3 million in a governor's race, for example), candidates
would get a set amount of public funds to supplement their low-dollar
fundraising. The system was designed to apply to all statewide races as well as
to legislative elections. It was supposed to be in place for the 2002 election
year.

But the wrinkle in Massachusetts law that makes the voters' action not as
decisive as it might seem is this: While voters can create laws through the
initiative process, only the legislature can appropriate funds. Advocates of the
new law have estimated that it will cost about $40 million per election cycle,
although nobody can know exactly how much money might be required--it depends on
how many "clean" candidates come forth and how much they spend. Nevertheless,
after the ballot campaign, activists lobbied the legislature to set aside $10
million each year, an amount that David Donnelly says is "budget dust" in a
$20-billion state budget.

Somehow, in the first two years the advocates prevailed. But with $20 million
set aside in a clean-elections fund (now $23 million, including interest), and
with the 2002 election getting closer, the program ran into trouble in Finneran's
House. Last May the House voted to cut off the revenue stream, concocting a
dubious scheme for additional monies to come from voluntary taxpayer checkoffs.
Finneran's counterpart, Senate President Thomas F. Birmingham, a lukewarm
supporter of public financing, refused to go along with the House plan. By the
end of a drawn-out budget process, the language of the law had been preserved,
but no additional funds were set aside.

Article 48

Who can force the legislature to act? It's a vexing question, even for the
state's top legal minds. On December 3, on the 13th floor of the Suffolk County
Courthouse in downtown Boston, the question was brought before the Supreme
Judicial Court (SJC), the highest legal authority in Massachusetts.

Mass Voters for Clean Elections and Common Cause had joined with several
individual plaintiffs and with the state's Republican Party and Green Party in a
lawsuit claiming that the state constitution requires that the voter-passed law
be funded. To make the matter more immediate, Warren Tolman, a former state
senator, had collected the required amount of small donations and had just become
the first candidate to qualify for clean-elections funding. He was ready to launch
his campaign for governor on a reformist theme. (Several other high-profile
Democrats, including Senate President Birmingham, are in the race, but they've
decided to proceed with fundraising under the old rules.)

John Bonifaz of the Boston-based National Voting Rights Institute made the
case before the seven-member court that Article 48 of the state constitution
requires that clean-elections funds be released to Tolman and others who may
qualify. Referring to the legislature by its official title, the General Court,
Article 48 states: "If a law approved by the people is not repealed, the General
Court shall raise by taxation or otherwise and shall appropriate such money as
may be necessary to carry such law into effect." Since the law has not been
repealed, Bonifaz argued, it must be funded.

The problem for the Supreme Judicial Court, which has grappled
with Article 48 several times over recent decades, never decisively, is that the
article also states: "No measure that ... makes a specific appropriation of money
from the treasury of the commonwealth, shall be proposed by an initiative
petition." As a result, the clean-elections law approved at the ballot contained
the necessary clause that the law would be "subject to appropriation."
Legislative leaders insist that the constitution gives ultimate authority for
appropriations only to that body, and the SJC has been careful over the years not
to step on legislative toes (after all, judicial budgets are subject to
legislative approval, too).

As the case was argued on December 3, the justices seemed not to dispute
Bonifaz's claim that legislative inaction violated the constitution. "It's a
serious constitutional right at stake here, and the question is what relief is
appropriate and from which branch of government?" observed Chief Justice Margaret
Marshall. Strikingly, even the state's lawyer, Deputy Attorney General Peter
Sacks, did not dispute that the constitution was being ignored; he argued that
there was nothing the SJC could do about it. "There is, we contend, no judicial
remedy here," Sacks said. If the citizens are unhappy with their representatives,
he argued, they can vote them out. Marshall noted that the constitution had been
amended to allow citizens to bypass an unresponsive legislature: "They didn't
pass a constitutional amendment that said you can vote them out; they passed a
constitutional amendment that said there's another way that you can get laws onto
the books."

A decision from the SJC was expected to come quickly, but a month later there
was nothing but silence. In any event, activists expected the fight to continue
well beyond the ruling. Bonifaz was asking the court to prevent the election from
being held if the money wasn't released, a drastic step that could lead to a
judicial-versus-legislative high noon. A less dramatic decision could mean
months--or years--of continued underdog activism.

Irony Lives

The ironies that hung in the courtroom that December morning were enough to
make one think that somewhere, Oliver Wendell Holmes, Jr., the onetime chief
justice of the SJC whose portrait now presides over the entrance, was winking.
There was a booby trap in the constitution: The principle of legislative control
over the public purse was at odds with the power of citizens to make laws--which
almost inevitably require money to be spent. Going back in the records, one finds
a trail of interestingly shifting sentiment. For example, in an interview with
The Boston Globe in 1992, Deputy Attorney General Peter Sacks discussed a ballot
question from that year and explained that Article 48 "doesn't say how much to
appropriate, but it has to be enough to carry the law into effect." That same
year, Margaret Marshall had been involved as a Boston lawyer in a case testing
Article 48. She represented a group of business interests that wanted to keep a
question off the ballot on the grounds that the legislature had yet to take
action on it. (The SJC ruled that legislative inaction should not deprive voters
from having their say.)

Sacks's former boss, Scott Harshbarger, stood in the back of the SJC courtroom
that day knowing intimately the case law, admiring (he said later) "the dignity
and professionalism" that Sacks brought to it, and yet hoping ardently that the
SJC would not agree with Sacks that there was "no judicial remedy." Harshbarger
admitted noting another irony. He had run for governor in 1998 and lost, partly
because some of the state's leading Democrats were unhelpful. Finneran had been
especially impolitic. When asked two months before the election if he was
supporting Harshbarger, he told a Boston Globe reporter: "We'll see if he's going
loony left." The governor's office was won by Paul Cellucci, a moderate
Republican who had almost no leverage over Finneran and Birmingham, due to the
miniscule number of Republicans in the House and Senate. "If there had been a
Democratic governor supporting this," Harshbarger said about the clean-elections
law, "it would have never been in the Supreme Court. The law could have been
implemented if I'd have been governor."

But the richer irony of Massachusetts politics is that even that much is not
certain. Who would have been the more successful arm-twister in the legislature,
Finneran or Harshbarger? The two men almost perfectly represent the incompatible
strains that have run through this state's politics since the beginning of the
last century, when the notorious "Rascal King" James Michael Curley did battle as
mayor of Boston with the Yankee swells in the Good Government Association.
Finneran, the son of a Dorchester rug cleaner, is the quintessential "results
over process" pol, and he is upholding a long tradition of "hard gavel" Speakers.
Harshbarger, the son of a Lutheran minister, represents the kind of moralistic,
reform-minded politics that rose and fell, most recently, with Michael Dukakis.
It's a style more suited, as some in the Democratic establishment see it, to a
Common Cause president than to a governor.

Harshbarger knows well that the clean-elections law would not be languishing
if only a strong enough majority in the House were willing to push the Speaker.
But a political fact of life is that incumbent politicians don't want to give
public money to challengers. And in this state, now several decades into
one-party rule, there is an additional complication. It's a little-discussed
factor, but the clean-elections law could well be the one good-government reform
that begins to revive the moribund Republican Party in Massachusetts. Boston
Globe
business columnist David Warsh recently wondered aloud why the business
community has not more aggressively backed the law, since "the measure could help
resurrect the Republican Party in the Boston suburbs, presumably a development
business desires." If the law succeeded in creating more competition for
legislative seats, there could be an unintended consequence of reform: A measure
designed to reduce the power of money (read: big business) could eventually
result in a legislature with a new crop of business-friendly Republicans.

Whether out of partisan calculation or as a way of playing to the crowd,
current governor Jane Swift (a Republican who inherited the office when Cellucci
stepped down) has spoken out for the law and has threatened to veto unfriendly
changes. And yet, the prospect of Republicans pushing for tax-funded
elections--"welfare for politicians," as Finneran calls it--has its own peculiar
comedy.

Warren Tolman, the clean-elections diehard whose gubernatorial campaign is in
jeopardy without a favorable court ruling, says the Republican factor is beside
the point. "I'm not afraid of that," he says. "I'm not going to say we shouldn't
fix a broken system because it might sacrifice a few Democratic seats in the
legislature." Like other clean-elections advocates, he is focusing on the deep
and disturbing questions that are raised by what has taken place in
Massachusetts, questions about the proper role of leaders in the democratic
process. "One cannot eviscerate an initiative passed by the people--in this case
by 66 percent of the voters," he insists.

But so far, one can. At least if that one is a powerful Massachusetts House
Speaker who is bent on putting his own opinions above the will of the voters.

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