Pliers and Screwdriver for Ballot Initiatives

It's well past time for some fundamental refinements in our laws, to prevent the short of divisive and destructive fights we've had for the past four years and before. New Governor Deval Patrick has loaded himself with so many other tasks, let's sneak a few more on this back.

We pinkos should lead the push for change. This type of call seems to be in our nature.

Rambling, old-man story here: Years ago in Manhattan a woman listing to a bunch of us at a party came into the circle to announce, "You're all in publishing." Her (correct) reasoning was that we were referring to the books we discussed as properties and to magazines as books. That argot was as typical of our business as a typical lefty/righty distinction. Many left-wingers look at problems and want to change the underlying causes, thus preventing as well as curing. Many right-wingers tell them to get real and actually accomplish something by working on manageable symptoms.

Now the call here and in come future posts will be for fundamental change.

Putting Initiatives Into The Shop

The much discussed and sued-over Article XLVIII of our commonwealth's constitution needs prompt attention. Its vagueness encourages abuses by the worst of our society and interest groups. Nearly 90 years ago, we were among the first to offer ballot initiatives as a way for citizens to correct flawed laws directly. We have since seen how it can work well, poorly and even terribly. Tweaks are overdue.

We are not the only state that has suffered from initiative abuse. California has more awful proposals that are very expensive both in process and in outcome, as well as often anti-freedom in the name of direct democracy. This blog has numerous posts of this topic, such as here.

We must admit that if we go where the SJC is headed, we accept a fourth branch of government -- large-scale town meeting direct democracy in addition to the representative democracy of the legislature. That most assuredly does not seem the intent or wording of the initiative portions of our constitution, but without input and guidance from the governor and legislature, we are creeping that way.

Almost certainly what the majority of voters and politicians alike do not want is:

1. Pass-through of any amendment with enough signatures to get to the legislature.
2. Sending amendments to plebiscites that restrict various minorities' civil rights.
3. Putting amendments on the ballot that are likely to eventually be ruled unconstitutional.
4. Risking unfunded mandates that cripple the ability of the legislature and governor to do their jobs for us.

The present spongy Article XLVIII and recent SJC interpretations support just such conditions. California has been fighting the deleterious effects of such initiatives turned feral for decades and we are headed there too.

At the risk of hampering progressive initiatives, I state strongly that we must stopping our passive and passive/aggressive fealty to the existing, still raw initiative article.

Disregarding Consequences

The legislature is in an awkward situation, partially of its own making.

Georgia had a form of initiative in 1777 and Oregon pioneered the modern version 16 years before ours came in 1918. We all suffer along with the 24 states and D.C. who have these in loving the concept but not refining it as we went along.

The SJC has its own issues and looks far too human on this topic. Following the one-judgee-majority Goodridge decision that insightfully and fairly interpreted our equal-treatment laws as requiring marriage equality, the SJC has quivered in its cave. It seems so thoroughly fustigated and cowed by the reaction to this ruling that it has made the term activist judges into a punchline.

In fairness, judges in California and New York have been too gormless and gutless to clarify such laws and principles as well. They also have sat in their corners whimpering about maybe the legislature should take care of this problem. This pull-the-covers-over-their-eyes behavior makes life all the much harder for all of us, particularly lawmakers.

Backed Into Corners

Up on Beacon Street, the resulting dynamics include:

• If the legislature in ConCon accepts that they are a pass-through body for any amendment that reaches the risibly low bar of 25% of the body, they have not served you, me or the whole commonwealth in their capacity and judgment.
• If they accept such Senate-President tricks as preventing any debate on anti-marriage-equality amendment because it has been kicked around in committee, they also fail their duty and spit on representative democracy.
• If they change Article XLVIII to require a simple majority of two successive ConCons (instead of 25%) to put an amendment before the voters, the special interest groups and let-the-people-vote literalists will never stop screaming.

As a start, how about simply expanding what would overturn a judicial decision and clarifying that civil rights of a minority cannot be subject of a plebiscite?

Meanwhile, the SJC has backhandedly made its efforts to bring this process into focus. Their continued conservatism and lack of leadership was obvious when:

• They ruled that the current amendment was not an attempt to overturn a judicial decision (their own). This Schulman decision tortured words like Bill Clinton on the stand. Pages 2 and 3 of the decision read that because such an amendment would not be robbing the original plaintiffs -- just all future ones -- of rights, no problem, no conflict.
• In the Doyle decision, a non-binding set of comments said that the ConCon had a duty to vote on any amendment appearing before it.

Doyle note: Short term, the decision is available through SJC slip decisions. Click Opinions and then the Doyle one. GLAD will likely carry it longer term, but not yet.

Unfortunately the legislature in general and Senate President Bobby Travaglini in particular are afraid of this whole subject. First, they could have clarified marriage laws in the six months following Goodridge. That would not have precluded initiative drives to repeal these changes by the same anti-gay groups working the current amendment. However, in the least, the effort would be seen for what it is -- an effort to force religion onto civil contract law that has existed here from Colonial days. In addition, even bashful Bobby would not have been so quick to pass through such initiatives when it meant reversing and rebuking the legislature.

Also, those two SJC findings may lull many legislators into thinking the issues are settled enough that they can pretend they are not pressing any more. Most would love for this whole thing to go away. Ironically of course, their lack of action and clarity have helped produce this ongoing shouting and contention.

Interestingly enough in Doyle, the SJC had to tunnel all the way down to notes of the 1917-8 ConCon to find some support for passing through amendments. They cited a mention of one Mr. Quincy of Boston that it seemed inconceivable that future ConCons might not vote on an initiative. Not only is such not definitive, but it illustrates the need to readdress Article XLVIII now that we have had 88 years of seeing what works and what does not.

Who Will Lead?

I don't expect Travaglini to lead effort here, any more than the SJC will. Either side would seem self-serving and self-protective if they tried to redefine the initiative process to avoid the kinds of problems they have experienced from the flawed version now in place.

Instead, this seems like yet another log to pile on Gov. Patrick's shoulders. He could work with his Attorney General and the normally inert Secretary of State to offer proposals to the legislature. They could make it their own by refinement and promote it as a way to bring sense and clarify to the process. This would surely take longer than the current session in which the anti-marriage-equality amendment must fail or at worst pass. So, they could not face the turmoil of being seen as derailing the existing initiative.

I honestly expect far more from Patrick's administration than this buck-passing cowardice we have seen in recent years. We have a solid, rights-loving Speaker of the House in Sal DiMasi. We have a Governor who wants to work with the legislature. We're not likely to get a brave SJC, so we can look toward getting the Senate with the program.

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Tags: massmarrier, Massachusetts, amendment, same sex marriage, ConCon, Deval Patrick