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.

This article was originally published in The American Prospect.

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