Deval Patrick and "Grass-roots Governing"

What if we took Governor Patrick's talk about reviving civic engagement seriously?

The victory speech Governor-elect Deval Patrick delivered on the night of Nov. 7 was characteristically hopeful and idealistic -- and passionate on the subject of citizen power. "We have a mandate to change the way we do business on Beacon Hill and to keep the grass-roots alive and growing," he told his assembled supporters.

A few weeks earlier, at a rally on the Boston Common, he sounded a similar note. "Grass-roots governing, like grass-roots campaigning, is about listening to people -- going to where they are in their lives and workplaces," he told the crowd. "This [campaign] is not just about strengthening partisan politics, it's about reviving citizenship."

Citizen activism was the dominant theme of the Patrick campaign. And a month after the election, Patrick’s key campaign organizer, John Walsh, confirmed to a Boston Globe reporter that one thing Patrick means by ''grass-roots governing'' is working with a new political organization being set up for his network of volunteers and donors. He has also encouraged his backers to stay involved in community affairs and local Democratic Party politics.

If that's the extent of the new governor's program for transforming politics and civic life, it is neither controversial nor especially ambitious. But suppose Patrick's uplifting rhetoric about the need for more citizen participation is taken seriously -- even by those who have a different vision for state government.

Only days after Patrick's election, a battle erupted on Beacon Hill that featured energized and vocal grass-roots activists -- though not the ones Patrick had in mind. They were pushing for a vote to amend the state constitution to prevent same-sex marriage. Legislators met in joint session on Nov. 9 and spent a long afternoon avoiding action. At the end of the day, they voted to recess until Jan. 2, apparently dooming the amendment by parliamentary maneuver. As protesters kept up a drumbeat of "let the people vote" over the next week, it was outgoing governor Mitt Romney who seized the democratic high ground and blasted legislators for ignoring "the voice of the people."

''Certainly what's happened in the last several weeks is not in line with what Governor-elect Patrick is advocating,'' says Kristin Mineau, president of the Massachusetts Family Institute, which has led the drive for a constitutional amendment. ''November 9th was business as usual.'' Mineau's group joined Governor Romney, former Boston Mayor Raymond Flynn, and others in asking the Supreme Judicial Court to find a remedy for the Legislature's inaction. The court is expected to make a ruling in late December (1).

No one really expected Patrick to side with the ''let the people vote'' crowd. He took a clear stance in his campaign in favor of same-sex marriage, saying the issue is settled and the state needs to ''move on.'' Nor did he attempt to pass himself off as a champion of ''direct democracy.'' He spoke against honoring the 2000 ballot proposition to roll back the state income tax to 5 percent.

And yet efforts by activists -- both liberal and conservative -- to use ballot initiatives to overcome legislative inertia have been a defining feature of grass-roots politics in Massachusetts in recent decades. More often than not, the Legislature is coming out on top in those power struggles -- and sometimes by bending the rules.

The battle over same-sex marriage is just the most recent example. In fact, if Jan. 2 comes and goes without a vote on the proposed amendment -- and on another one asserting a right of universal access to healthcare that is also pending -- the Legislature will have disposed of seven of the last eight citizen-proposed amendments, not by up-or-down votes but by motions to adjourn or recess. (2).

This side of Beacon Hill politics puts Patrick in a difficult spot: If the same-sex marriage debate illustrates the dangers, from his perspective, of direct public involvement in lawmaking, the Legislature's machinations also feed the kind of public cynicism about politics that Patrick has so often decried.

Pamela Wilmot, executive director of Common Cause Massachusetts, sees a challenge for Patrick in making his support for citizen empowerment directly relevant to the how the state legislature works. “That’s a core part of our civic life,” she says. “That’s where our most important decisions are made.”

* * *

Good-government reformers have complained about closed-off legislatures for a long time -- and Massachusetts may not be the worst offender. A couple of years ago, the Brennan Center for Justice at NYU produced a study that called New York state government the "most dysfunctional" in the nation. Seymour Lachman, a disenchanted New York state senator, detailed the problems in a book this fall entitled Three Men in a Room. Lachman argued that all major decisions in Albany are made by the governor, the Senate majority leader, and the Assembly speaker.

Massachusetts has seen a similar pattern over recent years. In fact, during some stretches of the 1990s, Beacon Hill operated more on the "two men in a room" model, as when Senate President Tom Birmingham and House Speaker Tom Finneran famously spent six months in 1999 negotiating details of an overdue state budget while the Republican governor, Paul Cellucci, was frozen out. (3).

Now Patrick has a chance to at least move Massachusetts back to triumvirate rule. He begins with the widespread expectation he will have a better working relationship with House Speaker Sal DiMasi and Senate President Robert Travaglini than Romney had, if only by virtue of being of the same party. Patrick's plan to keep his political organization active signals he wants to negotiate from a position of strength.

Cynics will call that ''machine politics.'' But Patrick's civic agenda is likely to include other worthy ideas. His working group on civic engagement, one of several transition groups charged with developing an agenda for the Patrick administration, has discussed allowing same-day voter registration (and other election reforms), improving public access to government documents through better websites, and redesigning civics education in the schools.

As well, there are some ways Patrick may be able to help open up the Legislature to wider participation among its own members. State Rep. Jim Marzilli, a Democrat from Arlington, says there are some moves Patrick can make immediately that would empower rank-and-file members of the legislature. He cites a movement for “budget transparency” already being pushed by some civic organizations. All the Governor’s office has to do is produce a budget document that gives clear and relevant information and legislators and the public would be a step ahead. “That’s a very concrete example of how he can bring people back in,” Marzilli says. (4).

These modest reforms, however, don’t get at the thornier questions raised by citizen initiatives, and it remains to be seen whether Patrick intends to make reforming that process part of his civic agenda.

Alan Ehrenhalt, executive editor of Governing magazine, wonders why a new governor would make wider citizen activism one of his priorities. ''Most citizen participation is negative,'' says Ehrenhalt. ''The main reason most citizens participate most of the time is to oppose things.'' Realistically, Patrick might stand to get more done simply by working well with top legislative leaders. ''If it's 'three men in a room' and you see eye-to-eye with the other two, it's hard to imagine why you'd want to change that," Ehrenhalt says. (5).

Certainly, the Progressive-era reforms that gave citizens the power to propose laws and constitutional amendments are not in favor with today's lawmakers. The powers derive from Article 48 in the state constitution, which was drafted by the Legislature in 1917 and approved by the voters the following year. The thinking at the time was that voters needed a way to overrule legislatures when they were too much in the control of powerful business interests.

But it turns out that powerful economic interests can use the process, too -- sending out paid signature-gatherers to put questions on the ballot that do not really spring from ''the grass-roots.'' And the question raised by the same-sex marriage amendment is a vexing one for those who idealize populist democracy: is it acceptable to submit a question of minority rights to majority rule?

Of course, few legislators will speak out publicly against the citizens rights created in Article 48. But their actions tell the story. The Legislature came near to a constitutional crisis in 1999, as it steadfastly refused to fund a law approved by voters creating public financing of elections – a clear violation of its constitutional duty, according to a ruling by the Supreme Judicial Court. (6).

Pam Wilmot of Common Cause says that due to legislative intransigence, ''the ballot process for a constitutional amendment is essentially dead.'' (7). David Donnelly, the lead activist in the ''clean elections'' battle of the 1990s, says the ability of voters to create laws (which is meant to be easier than amending the constitution) is in doubt, as well.

Donnelly, an organizer for Washington D.C.-based Public Campaign, says the health of the initiative process ought to be of concern to the new governor. ''That's absolutely part of civic engagement,'' he says.

And if the Legislature -- and perhaps the governor -- have no confidence in Article 48's rules, wouldn't it at least make sense to try to change them?

* * *

The problem, of course, is that it would take a new constitutional amendment to rewrite Article 48 -- and it would have to be approved by the voters. As many activists would point out, Massachusetts already has high hurdles in place for the citizen initiative. Of the 18 states that allow citizens to propose constitutional amendments, Massachusetts is the only one that requires legislative approval before the amendment can go to the ballot. (8).

Still, there may be a good-government argument to be made that majority support in the Legislature should be required for constitutional amendments (as it stands, amendment proponents need support from only a quarter of the Legislature in two consecutive sessions). And yet realistically, there is almost no chance voters would decide to weaken their initiative powers. Does that mean the Commonwealth faces a problem without a solution?

Benjamin Barber, author of Strong Democracy: Participatory Politics for a New Age (1984), admits that empowering citizens is a tough sell to those in power. ''There's no question that involving and engaging citizens in a serious way in self-government is much more complicated and difficult for politicians,'' Barber says, ''and does also risk that a certain amount of their power is actually returned to the people.''

Nevertheless, Barber, the Kekst Professor of Civil Society at the University of Maryland, and director of New York-based CivWorld, an organization that promotes democratic innovation, contends that a governor could only deal with such problems with a bold approach. The answer, Barber says, is in moving beyond ''let the people vote.''

''Part of the point of direct democracy and strong democracy is not just to get citizens to vote on things but to get individuals to turn into citizens," Barber says. "And that's a process that is more than just about voting.''

If initiative and referenda powers are to be meaningful they need to become ''more deliberative'' Barber says, which means requiring more work on the part of the voters. Coming to ''a wise judgment'' requires more than a modern-style political battle waged with manipulative television spots. Barber envisions new uses of Internet networks, distribution of high-quality educational materials provided by all sides, frequent televised debates, and even a series of straw votes before the final binding one.

Updating our Progressive-era reforms for the modern world may sound utopian, but going in the other direction -- asking voters to beef up the powers of the Legislature -- is no more realistic. (9).

Annotations, amendments, and digressions:

(1) The Supreme Judicial Court ruled in 1992 -- after Senate President William Bulger prevented a direct vote on a constitutional amendment for term limits -- that such actions violate the constitution. The problem is, the court has no power to intervene, according to the SJC. After Senate President Tom Birmingham deep-sixed an earlier attempt in 2002 to propose a constitutional amendment on same-sex marriage, the SJC reiterated its view. Will the SJC give a different answer this time? Mineau says the current case argues there is cumulative damage being done. ''The governor's lawsuit is making the case it's not just this amendment," Mineau says, "it's a whole string of amendments, and that the citizens' petition process is broken unless the court fixes it."

(2) Amendments are supposed to move forward unless 75 percent of the body votes against them. But the body can adjourn with a majority vote. So by allowing a majority to block amendments instead of a supermajority, the Legislature in effect has informally amended the constitution. Article 48, Part IV, Section 4, states clearly: “Final legislative action in the joint session upon any amendment shall be taken only by call of the yeas and nays.... At such joint session a legislative amendment receiving the affirmative votes of a majority of all the members elected, or an initiative amendment receiving the affirmative votes of not less than one-fourth of all the members elected, shall be referred to the next general court."

(3) Technically, they weren’t in “a room” for much of those 1999 negotiations, they were on the balcony adjoined to Birmingham’s office – which allowed the Senate President to smoke.

(4) It would take more ambition to challenge certain aspects of one-party rule and the incumbent-protection racket in Massachusetts. Isn’t it a problem for civic engagement that it costs so much to run for statewide office? But the Legislature for the moment has killed the public financing plan. Pam Wilmot cites redistricting power as another example. “We believe that needs to be a citizen process,” says Wilmot, whose group wants an independent non-partisan commission to draw district lines every ten years instead of self-interested legislators. Wilmot says Patrick expressed favor for the idea at a campaign event. The problem: such a change would require a constitutional amendment. Common Cause made a run at proposing the amendment last year, but fell just short of the required number of signatures. Had it moved forward, it’s difficult to imagine the legislature wouldn’t have blocked it in its customary manner.

(5) Ehrenhalt is a veteran observer of government and he takes a more nuanced view than those comments suggest. In discussing the "three men in a room" problem in Governing (November, 2006), he notes that concentrated power in Albany (and the fact that Republicans have controlled the state Senate since 1966 while Democrats have had the Assembly since 1974) hasn't led to great results. "New York, a fountain of new governmental ideas and creative programs for most of the 20th century," Ehrenhalt writes, "has produced very little innovative or reformist public policy since the days of Republican Governor Nelson A. Rockefeller in the 1960s."

(6) Was the legislature required to fund the law? It depends on what the meaning of "shall" is. Article 48, Part II, Section 2, 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.” As it played out, the law was nixed primarily because of stubborn resistance by then- House Speaker Tom Finneran. The SJC even went so far as to require the sale of certain state property to fund “clean elections” candidates in 2000. But after that, the Legislature put “an advisory question” on the ballot in 2002 asking “Do you support taxpayer money being used to fund political campaigns for public office in the Commonwealth of Massachusetts?” Not surprisingly given the wording, 66 percent of the voters said no. Then the Legislature came into compliance with its constitutional obligation to either fund or repeal by repealing the public financing law. (The repeal language, though, was slipped into a budget bill and was passed without a roll call vote.) For more on this saga, see my article “Statehouse Subversion” in The American Prospect, Feb. 11, 2002.

(7) Over the last 24 years, five of the last six citizen-initiated amendments have not received a final vote in the legislature’s joint session (the constitutional convention), according to the brief filed by Romney, et al. The exception was the citizen initiative for a constitutional amendment allowing graduated income tax rates, which was sent by the legislature to the voters and was rejected at the ballot in 1994. (The four other attempts to allow a grad tax since 1960 were amendments proposed by the legislature. The voters rejected these amendments in 1962, 1968, 1972, and 1976.)

(8) Massachusetts uses the “indirect initiative” – in which the legislature considers the proposed statute or amendment before it goes to the ballot. According to Richard J. Ellis in Democratic Delusions: The Initiative Process in America (2002), nine other states use the indirect initiative but only Massachusetts and Mississippi apply it to constitutional amendments. And, “Massachusetts is the only one that gives the legislature the right to prevent an initiative from reaching the ballot.” In the other states, the legislature can only prevent a vote by adopting the measure.

Twenty-four states use some version of the initiative and referendum process. Of course, that means in the majority of states citizens cannot pass direct legislation -- and in 32 states citizens are not entitled to propose constitutional amendments. (But every state except Delaware requires constitutional amendments approved by the legislature to be ratified by the voters.) Activists in Massachusetts, in demanding “let the people vote,” often equate voting on laws and amendments with the essence of democracy. By that logic, the majority of states aren’t democratic.

(9) Further concluding thoughts:

As usual, the most likely outcome is the status quo, i.e., the constitutional language remains unchanged and the Legislature goes along with it when convenient.

Would it be politically smart for Deval Patrick to attempt to use his political capital on reform of the citizen initiative process? Probably not – at least not early in his term, and not when the same-sex marriage controversy is still alive. But when “strong democracy” proponents like Ben Barber talk about getting “individuals to turn into citizens," they are speaking Patrick’s language. As Patrick said at the Boston Common rally in October, his campaign was “about asking all people to help me as governor help you as citizens help yourselves.”

In Barber’s collection of essays, A Passion for Democracy (1998), he writes, “strong leaders have on the whole made Americans weak citizens; [and] representative institutions have conformed to Michels’ iron law of oligarchy and distanced the citizenry from the government to which representation is meant to tie it.” He goes on to discuss styles of leadership that are compatible with strong democracy. This is what Patrick would have to consider. As Barber told me, ''if a governor wants to be a genuine strong democrat he's got to be a stronger and more effective leader than somebody who's going to simply yield to the traditional system of legislative prerogatives.''

It bears repeating that Patrick did not campaign explicitly as a “democratic reformer.” His language about “changing the way we do business on Beacon Hill” was intentionally vague – surely he didn’t want to embrace a reform agenda that would alarm the legislative leaders he would have to work with. In fact, Patrick’s rhetoric was mostly that of a “civic republican.” Perhaps he’s closer to Harvard government professor Michael Sandel than to Ben Barber in his thinking. As Sandel writes in Democracy's Discontent (1996), "the republican tradition emphasizes the need to cultivate citizenship through particular ties and attachments...[which requires] a concern for the whole, an orientation to the common good." That’s Patrick’s language, too.

It may well be that Patrick’s intention is only to exhort people to take part in civic life, and to keep his campaign supporters active in an organization that can influence state politics. Beyond that, one could argue that if there were to be any real chance to reform our Progressive-era mechanisms for voter participation in state government, the leadership will have to come from somewhere else. It probably would take some sort of broad-based citizens’ movement to do it.

This is an expanded and updated version of an article published in the Boston Globe on December 10, 2006.

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