By Dan Kennedy • The press, politics, technology, culture and other passions

The 25 percent solution

Boston Globe columnist Jeff Jacoby yesterday returned to one of his favorite issues — his contention that Article 48 of the state constitution requires the Legislature to vote up or down on proposed constitutional amendments submitted by initiative petition. Is Jacoby right? He may well be. But he’s not telling the whole story.

Currently an amendment is pending before the Legislature that would outlaw same-sex marriage. The amendment only requires the votes of 50 of the 200 House and Senate members, meeting in two consecutive sessions. If it clears that low hurdle, it would go on the 2008 ballot, where it would pass if it received a simple majority vote.

In order to get around the 25 percent requirement, Massachusetts Senate president Robert Travaglini, who will preside at the constitutional convention, is said to be considering a parliamentary maneuver — say, having one of his members file a motion to adjourn. If that motion were to pass by a majority, the convention would be over. Tom Birmingham did something very much like that when he was Senate president a few years ago.

Jacoby asserts:

Lawmakers are not given a choice in the matter. The Constitution requires them to vote. If it didn’t, initiatives opposed by the legislative leadership could be aborted by simply refusing to bring them up for a vote. Instead of operating as a check and balance on the Legislature, Article 48 would then be a toothless sham.

According to a LexisNexis search, this is at least the fourth time that Jacoby has railed against the Legislature’s disregard for Article 48. In 1997, he blasted the state’s Supreme Judicial Court for refusing to stand up to former Senate president Bill Bulger’s use of parliamentary maneuvers to kill a term-limits amendment. In 2002 and 2004, it was gay marriage.

But Article 48 cuts both ways. Bay Windows editor Susan Ryan-Vollmar sends along this recent article by Ethan Jacobs, in which Newton Mayor David Cohen, a former state representative, recalls precisely the same thing happening in 1990 to a proposed amendment that would have guaranteed abortion rights. Cohen told Jacobs, “That was used again by the anti-choice forces in blocking the amendment. There were repeated quorum calls, and since the pro-choice forces did not have a majority we could not maintain a quorum, and so that certainly is a legitimate tactic.”

A Boston Globe article published on Dec. 29, 1990, backs up Cohen. An excerpt:

Efforts to win legislative approval of two proposed constitutional amendments died yesterday when a majority of the state’s representatives and senators failed to show up for a constitutional convention called by Gov. Dukakis.

The constitutional convention, a joint session of the House and Senate that meets periodically through the year to debate proposed amendments to the state constitution, was adjourned for the year earlier this month.

But under pressure from the Massachusetts Teachers Association, backers of a proposal to add language to the constitution that would make equal access to quality educational opportunities in public schools a constitutional right, Dukakis called the convention back into session, as he is legally required to do.

That proposed amendment, however, has been overshadowed by another proposed amendment designed to guarantee access to abortion in Massachusetts. Both proposals reached the Legislature after tens of thousands of residents signed petitions favoring the measures.

Procedural rules dictated that the abortion amendment be debated before the education amendment and, because of organized opposition to the abortion amendment, lawmakers have failed to attend the convention sessions, leaving them without a quorum with which to conduct business.

Isn’t that interesting? I don’t believe Jeff Jacoby was writing in 1990. But if Article 48 requires a vote, then surely this is just as much of an outrage as what Travaglini is considering.

Finally, let’s take a look at the actual wording of Article 48. I’m not going to repeat the language Jacoby cites; besides, I tend to agree with him. At the very least, if the drafters of Article 48 realized the 25 percent provision could be defeated by such parliamentary shenanigans as motions for adjournment and quorum calls, I’m sure they would have written it differently. Rather, I’m intrigued by this:

No measure that relates to … the reversal of a judicial decision … shall be proposed by an initiative petition …

That seems to be clear enough. And what is the proposed amendment other than a transparent attempt to overturn the SJC’s 2003 Goodrich decision (PDF), which recognized the right of same-sex marriage under the state constitution? You may recall that two former state attorneys general, Jim Shannon and Scott Harshbarger, called on Attorney General Tom Reilly to refuse to allow the amendment to go forward. But Reilly, who must depend on the votes of conservative Democrats and independents in his gubernatorial campaign, ruled otherwise.

Amending a constitution to take away people’s rights is a nasty business. That’s why the amendment process is so difficult at the federal level, requiring two-thirds of both branches of Congress and three-quarters of the state legislatures.

Amending the Massachusetts constitution may, as Ryan-Vollmar suggests, be harder than it is in some other states. But two 25 percent votes of the Legislature followed by a simple majority of the electorate is still pretty easy. Under those circumstances, I think Travaglini is justified in doing whatever he can to keep the tyranny of the majority at bay.

Finally: Two of the Democratic candidates for governor, Deval Patrick and Chris Gabrieli, say they favor marriage rights for lesbians and gay men. This week’s Boston Phoenix asks why they’re showing so little backbone on the constitutional amendment.

Update: There’s a breaking story on right now that the SJC has ruled the anti-gay-marriage amendment can be put on the ballot if it passes the legislative hurdle. That strikes me as an odd interpretation of Article 48. Maybe Jacoby and I should get together and rewrite it.

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  1. Anonymous

    The use of the word “reversal” (of a judicial decision) is a word rather like the word “inconceivable” in The Princess Bride. In other words, I do not think it means what you think it means.The ballot question wouldn’t reverse Goodridge, which would remain the law from the time of its issuance until the encatment of the ballot question. The ballot question would supersede the decision.The question would only run afoul of the provision you cite if the text of the question was “Goodridge v. Dept. of Public Health was wrongly decided and is hereby reversed.”

  2. Dan Kennedy

    Anon — Your interpretation is correct, according to this AP story. But that really makes Article 48 meaningless, doesn’t it? Now we know that 25 percent doesn’t mean 25 percent, and “no reversing a court ruling” is nothing but a hypertechnicality. As I said, Jeff and I ought to get together and rewrite this.

  3. Anonymous

    To clarify, the amendment must win 25 percent in the Legislature (50 votes) in the current session AND the next (2007-2008) in order to qualify for the ballot.

  4. Stealth

    2004: 105-92 to ban2005: 39-157 to banThat wasn’t an initative one, obviously, but man, that’ll be some glorious flip-flopping if it goes back over 50.

  5. sco

    Stealth — the 2004 & 2005 votes were on the Trav/Lees comprompise amendment that not only banned gay marriage, but also created civil unions. By the time 2005 rolled around legislators who wanted to ban both gay marriage and civil unions voted against the amendment because they knew the current one (that bans marriage without creating civil unions) was being prepared.There will be a lot of people voting for the amendment (if it actually comes to a vote) who voted against it in 2005.

  6. Anonymous

    Original anon. of this thread here, replying to mr. Kennedy’s reply to my original post.I don’t agree at all that the distinction drawn by today’s ruling is a “hypertechnicality” or that it makes the ballot question meaningless. Indeed, I think your strained reading of “reverse” –which is something that only happens within a single case– is more deserving of your epithet. If your reading were correct, there could never be a ballot initiative in areas that have been the subject of litigation. In my view, that kind of severe limit would essentially render the initiative process meaningless.A far greater problem, as you point out, is the parliamentary procedures designed to evade the 25% rule. This type of manipulation is yet more evidence of the sleaziness that often prevails in our General Court. That sleaziness may have reached its zenith in the Bulger era, but its stink lingers still.

  7. Dan Kennedy

    Anon 3:49 — Actually, I see both aspects of Article 48 in pretty much the same light. If you can reverse any court ruling you like as long as you don’t actually reference the ruling, then that provision is meaningless. And if you can ignore the 25 percent rule by invoking parliamentary procedure, then that provision is meaningless, too. Given that, it comes down to politics and raw power. I hope Travaglini does whatever he can to kill this loathsome amendment.

  8. RichC

    You’re being beyond silly in your insane reading of “reversal”, simply because you personally disagree with the amendment.Consider this — in 1994, if I remember correctly, Jim Braude attempted to screw up the state by trying to get through a constitutional amendment to allow a graduated income tax in MA.Why did he choose to use an amendment-by-petition and not a statute-by-petition? Because the SJC had previous ruled that the MA constitution required the income tax to be flat, that’s why.In other words, Braude was…gasp…trying to reverse a court ruling.Funny — I don’t recall you whining about “reversals” back then.The 3:49pm post has it right — if your insane interpretation of “reversal” became controlling, it would mean that you could never amend the state constitution by petition because any amendment, virtually by definition, will reverse some prior court ruling.Try reading Reilly’s briefs, his certification letter back when he certified the question, and the SJC decision.And addressing another point — your “damn the constitution, just don’t vote on it” attitude is even more repulsive. You demonstrate no principle aside from “the ends justify the means.” Disgusting.If Trav has a shred of decency, he should bring the amendment to the floor for a vote. At that point, I want to see it fail to get the 25%, and if it were to succeed there and again next year and so make it to the ballot, I want to see it trounced at the polls then.

  9. Dan Kennedy

    Hey, Rich C. — I’m not suggesting anything remotely unconstitutional. The SJC has never ruled that using parliamentary procedure to get around Article 48’s 25 percent rule is unconstitutional, even though it’s been challenged several times. All I’m asking for is a constitutionally permitted use of raw political power. For what it’s worth, I voted against Jim Braude’s grad-tax proposal. Surprised?

  10. Charles Foster Kane

    I say bring it to a popular vote and let the homophobes try to tear asunder the principles of equality under the law which have guided this Commonwealth since the writing of the Massachusetts Constitution in 1780. I’m up for a referendum on the theocracy and look forward to the pathetic mewlings of those who claim marriage equality damages the marriages between men and women. I’m still waiting for the referendum on the amendment to the Massachusetts Constitution banning divorce. Who will protect the children?

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