The idea was public financing: a system that would make government moneyavailable 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 theirlegislatures. It was an idea that made sense, states being the laboratories ofdemocracy, 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 thereformers' ointment. His name is Thomas M. Finneran. A garrulous and brashlyopinionated working-class Democrat from Boston, he is the Speaker of the House inMassachusetts. He is bald and bantamlike, with piercing eyes when he's seriousand a wide, rollicking grin when he's in the mood for backslapping. He waselected 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 tocreate a public-financing system were under way in Massachusetts, Finneran hadgained so much control over the legislature--indeed, over state politics--thatmany observers regarded him as the de facto governor. This presented a problemfor reformers because Finneran is not the kind of Democrat who enjoys idealistictalk about "cleaning up politics." What Finneran cares about most, as he willtell anyone who wishes to listen, and often at great length, is keeping hislegislature from spending money irresponsibly. Giving government money topolitical candidates would be "frivolous," he said early on. "I just don't seeit."
Finneran's Wake
That would be the end of the story in most states. But reformers choseMassachusetts for a reason: The state constitution provides a means of citizenlawmaking through the initiative petition. So when legislators failed to enact apublic-financing law brought to them by the newly formed Mass Voters for CleanElections in the early months of 1998, the stage was set for the question to bedecided at the ballot box. The Mass Voters group, led by David Donnelly, anorganizer who had steered the victory in Maine, joined with the usual array ofgood-government reformers--Common Cause, the League of Women Voters, theMassachusetts Public Interest Research Group--and enlisted the support of suchprominent citizens as former Governor Michael Dukakis; Archibald Cox, theNixon-era special prosecutor; and Derek Bok, a former president of HarvardUniversity.
There was little organized opposition to clean elections, and the law wasapproved by 58 percent of the voters in November of 1998, with 30 percent votingno and 12 percent registering no opinion. (Leaving aside the blanks, the marginwas 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 aslow and painful death. Finneran seems not to care a whit that voters haveweighed in. Here is how he reacted on a local television news show in the firstweek of this year, when told of an angry citizen who called him an "emperorwanna-be" who defies the people's wishes: "I feel sorry for him that he is soconfused that he thinks welfare for politicians--which is what clean electionsis, a handout for Jerry Springer-like candidates--somehow trumps the legitimateneeds 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 succeedsin blocking the law in Massachusetts, he will kill whatever national momentum hasbeen building for public financing. After all, if you can't get clean electionsin a liberal bastion after voters have endorsed it, how will you be able to sellthe reform in, say, Indianapolis or Tallahassee? As Scott Harshbarger, the formerMassachusetts attorney general who is now the national president of Common Cause,says, "It could be our Waterloo."
The law that voters created would restrict participatingcandidates to $100 contributions. In exchange for abiding by an overall spendinglimit (no more than $3 million in a governor's race, for example), candidateswould get a set amount of public funds to supplement their low-dollarfundraising. The system was designed to apply to all statewide races as well asto legislative elections. It was supposed to be in place for the 2002 electionyear.
But the wrinkle in Massachusetts law that makes the voters' action not asdecisive as it might seem is this: While voters can create laws through theinitiative process, only the legislature can appropriate funds. Advocates of thenew 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 onhow many "clean" candidates come forth and how much they spend. Nevertheless,after the ballot campaign, activists lobbied the legislature to set aside $10million 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 millionset aside in a clean-elections fund (now $23 million, including interest), andwith the 2002 election getting closer, the program ran into trouble in Finneran'sHouse. Last May the House voted to cut off the revenue stream, concocting adubious scheme for additional monies to come from voluntary taxpayer checkoffs.Finneran's counterpart, Senate President Thomas F. Birmingham, a lukewarmsupporter of public financing, refused to go along with the House plan. By theend 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 thestate's top legal minds. On December 3, on the 13th floor of the Suffolk CountyCourthouse in downtown Boston, the question was brought before the SupremeJudicial Court (SJC), the highest legal authority in Massachusetts.
Mass Voters for Clean Elections and Common Cause had joined with severalindividual plaintiffs and with the state's Republican Party and Green Party in alawsuit claiming that the state constitution requires that the voter-passed lawbe funded. To make the matter more immediate, Warren Tolman, a former statesenator, had collected the required amount of small donations and had just becomethe first candidate to qualify for clean-elections funding. He was ready to launchhis campaign for governor on a reformist theme. (Several other high-profileDemocrats, including Senate President Birmingham, are in the race, but they'vedecided to proceed with fundraising under the old rules.)
John Bonifaz of the Boston-based National Voting Rights Institute made thecase before the seven-member court that Article 48 of the state constitutionrequires that clean-elections funds be released to Tolman and others who mayqualify. 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 GeneralCourt shall raise by taxation or otherwise and shall appropriate such money asmay be necessary to carry such law into effect." Since the law has not beenrepealed, Bonifaz argued, it must be funded.
The problem for the Supreme Judicial Court, which has grappledwith Article 48 several times over recent decades, never decisively, is that thearticle also states: "No measure that ... makes a specific appropriation of moneyfrom the treasury of the commonwealth, shall be proposed by an initiativepetition." As a result, the clean-elections law approved at the ballot containedthe necessary clause that the law would be "subject to appropriation."Legislative leaders insist that the constitution gives ultimate authority forappropriations only to that body, and the SJC has been careful over the years notto step on legislative toes (after all, judicial budgets are subject tolegislative approval, too).
As the case was argued on December 3, the justices seemed not to disputeBonifaz's claim that legislative inaction violated the constitution. "It's aserious constitutional right at stake here, and the question is what relief isappropriate and from which branch of government?" observed Chief Justice MargaretMarshall. Strikingly, even the state's lawyer, Deputy Attorney General PeterSacks, did not dispute that the constitution was being ignored; he argued thatthere was nothing the SJC could do about it. "There is, we contend, no judicialremedy here," Sacks said. If the citizens are unhappy with their representatives,he argued, they can vote them out. Marshall noted that the constitution had beenamended to allow citizens to bypass an unresponsive legislature: "They didn'tpass 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 ontothe books."
A decision from the SJC was expected to come quickly, but a month later therewas nothing but silence. In any event, activists expected the fight to continuewell beyond the ruling. Bonifaz was asking the court to prevent the election frombeing held if the money wasn't released, a drastic step that could lead to ajudicial-versus-legislative high noon. A less dramatic decision could meanmonths--or years--of continued underdog activism.
Irony Lives
The ironies that hung in the courtroom that December morning were enough tomake one think that somewhere, Oliver Wendell Holmes, Jr., the onetime chiefjustice of the SJC whose portrait now presides over the entrance, was winking.There was a booby trap in the constitution: The principle of legislative controlover the public purse was at odds with the power of citizens to make laws--whichalmost inevitably require money to be spent. Going back in the records, one findsa trail of interestingly shifting sentiment. For example, in an interview withThe Boston Globe in 1992, Deputy Attorney General Peter Sacks discussed a ballotquestion from that year and explained that Article 48 "doesn't say how much toappropriate, but it has to be enough to carry the law into effect." That sameyear, Margaret Marshall had been involved as a Boston lawyer in a case testingArticle 48. She represented a group of business interests that wanted to keep aquestion off the ballot on the grounds that the legislature had yet to takeaction on it. (The SJC ruled that legislative inaction should not deprive votersfrom having their say.)
Sacks's former boss, Scott Harshbarger, stood in the back of the SJC courtroomthat day knowing intimately the case law, admiring (he said later) "the dignityand professionalism" that Sacks brought to it, and yet hoping ardently that theSJC would not agree with Sacks that there was "no judicial remedy." Harshbargeradmitted noting another irony. He had run for governor in 1998 and lost, partlybecause some of the state's leading Democrats were unhelpful. Finneran had beenespecially impolitic. When asked two months before the election if he wassupporting Harshbarger, he told a Boston Globe reporter: "We'll see if he's goingloony left." The governor's office was won by Paul Cellucci, a moderateRepublican who had almost no leverage over Finneran and Birmingham, due to theminiscule number of Republicans in the House and Senate. "If there had been aDemocratic governor supporting this," Harshbarger said about the clean-electionslaw, "it would have never been in the Supreme Court. The law could have beenimplemented if I'd have been governor."
But the richer irony of Massachusetts politics is that even that much is notcertain. Who would have been the more successful arm-twister in the legislature,Finneran or Harshbarger? The two men almost perfectly represent the incompatiblestrains that have run through this state's politics since the beginning of thelast century, when the notorious "Rascal King" James Michael Curley did battle asmayor of Boston with the Yankee swells in the Good Government Association.Finneran, the son of a Dorchester rug cleaner, is the quintessential "resultsover 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 aCommon Cause president than to a governor.
Harshbarger knows well that the clean-elections law would not be languishingif 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 givepublic money to challengers. And in this state, now several decades intoone-party rule, there is an additional complication. It's a little-discussedfactor, but the clean-elections law could well be the one good-government reformthat begins to revive the moribund Republican Party in Massachusetts. BostonGlobe business columnist David Warsh recently wondered aloud why the businesscommunity has not more aggressively backed the law, since "the measure could helpresurrect the Republican Party in the Boston suburbs, presumably a developmentbusiness desires." If the law succeeded in creating more competition forlegislative seats, there could be an unintended consequence of reform: A measuredesigned to reduce the power of money (read: big business) could eventuallyresult 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 Celluccistepped down) has spoken out for the law and has threatened to veto unfriendlychanges. And yet, the prospect of Republicans pushing for tax-fundedelections--"welfare for politicians," as Finneran calls it--has its own peculiarcomedy.
Warren Tolman, the clean-elections diehard whose gubernatorial campaign is injeopardy without a favorable court ruling, says the Republican factor is besidethe point. "I'm not afraid of that," he says. "I'm not going to say we shouldn'tfix a broken system because it might sacrifice a few Democratic seats in thelegislature." Like other clean-elections advocates, he is focusing on the deepand disturbing questions that are raised by what has taken place inMassachusetts, questions about the proper role of leaders in the democraticprocess. "One cannot eviscerate an initiative passed by the people--in this caseby 66 percent of the voters," he insists.
But so far, one can. At least if that one is a powerful Massachusetts HouseSpeaker who is bent on putting his own opinions above the will of the voters.
