Massachusetts voters approved public financing
for campaigns, but the legislature hasn't appropriated a nickel
by Dave Denison
The American Prospect magazine,
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
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"
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 bantam-like,
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 underway
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."
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
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.
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 ioined
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.
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.
Harshberger 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 offfice 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
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.
Dave Denison, books editor of the Prospect, covered Massachusetts
politics in the 1990s for CommonWealth magazine.