Author: Dan Kennedy

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 Boston.com 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.

Alison Lobron writes in today’s Boston Globe:

In Davis Square, Diesel Cafe charges for wireless — about $14 a month — but co-owner Jen Park said she also confronts customers who are not buying food. Perhaps the worst offenders are the people who buy coffee at the Starbucks across Elm Street, then head for the comfortable red booths at Diesel with their Starbucks cup in hand, she said.

You can’t make this stuff up.

While I was at Christopher Lydon’s session at UMass, my sometime editor Tom Stites was down the hall, delivering this speech. Tom sent me the Word file, and I was going to ask him whether I could post it — but then Dan Gillmor beat me to it. (And Adam and John beat me in linking to it.)

Stites’ speech is about a topic that’s important not just for journalism, but for democracy: the newspaper industry’s advertiser-driven abandonment of all but the most affluent readers. Tom’s attitude toward his former newspaper colleagues is more sorrow than anger — after all, he observes, how can it be otherwise when Wal-Mart, where poor people actually shop, doesn’t buy newspaper ads, whereas businesses that cater to upscale readers do?

This is a long piece, and I can’t adequately summarize it. So do yourself a favor and read the whole thing.

What does Christopher Lydon want? After sitting in on a session he led last Friday at UMass Amherst, my impression was that he really doesn’t know — but that he’s hoping it will emerge if enough smart people put their minds to it.

The post-“Connection” Lydon is a devotee of blogging, and his radio show, “Open Source,” attempts to join blogging and radio. (It’s an uneasy combination, although the radio part of it is often terrific.) At his UMass session, part of the Media Giraffe conference, several dozen of us talked about an idea that he calls “The New England Common.”

What is it? Maybe a network of blogs, like Universal Hub — although, when I asked him about that specifically, he demurred. Maybe something a little more deliberate than that, like the Huffington Post. Maybe — and this is what really seemed to animate him — an online version of the Boston Globe as Lydon would envision it. (Lydon recently caused a stir with this withering essay on the Globe, written for CommonWealth Magazine.)

Blue Mass Group and Marry in Massachusetts have both done a good (if overly skeptical) job of covering the basics of what we talked about. I think the difference between their take and mine is that I believe Lydon genuinely wants to see what will bubble up. Lydon’s emphasis on elite journalists like Richard Dyer and David Warsh (who was there) and elite institutions like Harvard (and Harvard and Harvard) was somewhat amusing given the populist leanings of those gathered. But Lydon seems to be trying to overcome his elitism rather than wallowing in it.

Lydon’s basic question was this: Given the number of bloggers and brains we have in New England, why haven’t those commodities come together as we’ve seen elsewhere, such as New York, Washington and the West Coast?

I don’t know the answer to that, but a few cultural observations may suggest that New England is different. You could go back at least to the 1970s, when the economic landscape was dominated by minicomputer companies such as Digital and Wang. The founders of those companies, Kenneth Olsen and An Wang, failed to adapt, and they fell to a rising information revolution led first by personal computers and, later, the Internet.

For that matter, why has Salon been thriving in San Francisco since 1995 while Boston, a similar city in many respects, has never had anything remotely like it? Salon strikes me as being very similar to what Lydon may have in mind.

Part of why we’re different, I think, may be rooted in a cultural desire for control and for the old way of doing things. Even when something genuinely new comes along, it’s quickly incorporated as the new old, and change is resisted for fear of losing control.

Which might have something to do with the local blogs. I suspect we all like having our independence too much to allow ourselves to be subsumed into a New England Common. I certainly wouldn’t mind if Media Nation were part of a larger network — as it is to some extent, through its listing on Romenesko and mentions on Universal Hub. But I have little interest in its becoming, say, an online column within New England Common, if that’s ultimately the direction in which Lydon wants to move.

For all his enthusiasm, I also wonder whether Lydon understands the limitation of blogs. He made it pretty clear that he wants expertise, research and reporting — all the things for which we still need the mainstream media. Blogging doesn’t pay, and until it does, it’s going to remain something we do when we ought to be doing something else.

Obviously, this is a discussion to be continued. Lydon is an interesting guy, and I want to see where he might go with this.

The Boston Globe today publishes a good summation of the war between the Daily Kos and The New Republic. Written by Michael Grynbaum, the article casts things in standard terms: old media versus new media. But I don’t think that quite gets at it. In essence, this is really a battle between journalists (Jason Zengerle et al. at TNR) and political activists who think they’ve become journalists — or perhaps it would be more accurate to say they think they’ve replaced journalists.

Zengerle appears to have caught Kos founder Markos Moulitsas Zúniga in some fairly shady dealings with regard to his political consultant/business partner, Jerome Armstrong, blowing wet cyberkisses to Armstrong clients such as Mark Warner and writing an e-mail aimed at persuading fellow liberal bloggers not to write about Armstrong’s problems. Kos heads an advertising network that those bloggers belong to, so such a request comes with a little added zing.

Kos has denied the allegations, but hasn’t really explained anything. Instead, he’s embarked on a campaign of villification against TNR.

I know Zengerle a bit and consider him to be an honest journalist. I also find the Kos to be an unreadable amalgamation from people whose credibility I have no way of judging. That’s not to say it’s of no value. But which posts? By whom? Besides, my interest in blogging is journalistic. Blogging as another form of politics I find less interesting.

Update: I realize I was negligent in not acknowledging Zengerle’s e-mail screw-up — although, frankly, not as negligent as Grynbaum. Oof.

Are you surprised to learn that Dr. Phil and his wife acted like a couple of obnoxious divas during their stay in Boston? So says the Track.

The toughest review Dr. Phil got, though, comes by way of Universal Hub. And there’s more here.

Another longtime Boston Herald stalwart is leaving. Eric Convey, currently the senior executive city editor, will take the managing editor’s job at the Boston Business Journal on July 17. He’ll report to editor George Donnelly.

Reached by Media Nation, Convey responds by e-mail: “I absolutely love the Herald and the people here. No one could ask for better bosses than I’ve had. But great stuff is happening at the BBJ too, and this opportunity offers professional and personal possibilities that were too good to pass up.”

Tomorrow I’ll be moderating a panel discussion at Faneuil Hall on “Community Media: Fixing What the Mainstream Broke.” Part of the Alliance for Community Media conference, it will begin at 7 p.m. and run for an hour and a half or so.

The panelists will be Kevin Howley of DePauw University, Sascha Meinrath of Free Press and Felicia Sullivan of UMass Lowell.

It should be a good discussion, so please come on down.

Boston Globe columnist Jeff Jacoby takes great comfort in the fact that President Bush didn’t simply ignore the Supreme Court after it invalidated military tribunals for Guantánamo detainees last week, offering it as proof that Bush isn’t actually trying to set up a dictatorship.

Jacoby, who’s been known to call himself a libertarian, might consider how far down the road we’ve traveled for it to seem rational to defend the president on the grounds that he has simply indicated his willingness to obey a ruling by the Supreme Court.

Those treason charges against Bill Keller and Arthur Sulzberger Jr. seem to have burned themselves out pretty quickly. More than anything, I don’t think the New York Times-bashers could overcome this op-ed piece in last Friday’s Times by terrorism experts Richard Clarke and Roger Cressey. Under the headline “A Secret the Terrorists Already Knew,” they wrote:

Administration officials made the same kinds of complaints about news media accounts of electronic surveillance. They want the public to believe that it had not already occurred to every terrorist on the planet that his telephone was probably monitored and his international bank transfers subject to scrutiny. How gullible does the administration take the American citizenry to be?

Terrorists have for many years employed nontraditional communications and money transfers — including the ancient Middle Eastern hawala system, involving couriers and a loosely linked network of money brokers — precisely because they assume that international calls, e-mail and banking are monitored not only by the United States but by Britain, France, Israel, Russia and even many third-world countries.

While this was not news to terrorists, it may, it appears, have been news to some Americans, including some in Congress. But should the press really be called unpatriotic by the administration, and even threatened with prosecution by politicians, for disclosing things the terrorists already assumed?

The next day, Los Angeles Times editor Dean Baquet and Keller, the New York Times executive editor, wrote an op-ed that was published in both of their papers. (The L.A. Times and the Wall Street Journal broke the story around the same time as the N.Y. Times, but haven’t paid nearly as high a political price.) It’s a well-considered, well-reasoned argument for going to press. They noted that the papers have withheld information that could genuinely damage national security, and also that government officials sometimes want sensitive information revealed when they think it will make them look good. I like this passage in particular:

Government officials, understandably, want it both ways. They want us to protect their secrets, and they want us to trumpet their successes. A few days ago, Treasury Secretary John Snow said he was scandalized by our decision to report on the bank-monitoring program. But in September 2003 the same Secretary Snow invited a group of reporters from our papers, The Wall Street Journal and others to travel with him and his aides on a military aircraft for a six-day tour to show off the department’s efforts to track terrorist financing. The secretary’s team discussed many sensitive details of their monitoring efforts, hoping they would appear in print and demonstrate the administration’s relentlessness against the terrorist threat.

The Baquet-Keller piece was an improvement over Keller’s earlier solo effort, which made some good points but was marred by a defensive, somewhat whiny tone. My colleague Stephen Burgard, director of Northeastern’s School of Journalism and a former L.A. Timesman, argues that Keller’s first piece panders to the N.Y. Times’ base, whereas the second succeeds in reaching out to a broader constituency. Burgard writes:

Whatever these Americans may think of a particular president, they of course will want the government to succeed, and will think about press decision-making along a spectrum of what might or might not cause real harm. In such an instance, where the perceived interests of the government and a free press are in collision, the readership for the editor is no longer restricted to the regular readers and detractors. The real audience is in fact the entire nation.

So will Rep. Peter King, Sen. Jim Bunning and their ilk stop taking noose measurements long enough to think seriously about what has happened? Probably not. But if bringing espionage charges against the media was ever on the table, it’s certainly off now.

I do think the New York Times made one significant mistake: By presenting the financial-tracking story as a blockbuster, it appeared to be blowing the cover on a valuable, and, it would appear, entirely legal program.

Whatever misgivings folks might have had about the Times’ earlier exposure of the NSA’s no-warrant wiretapping program, it was hard to scream “Treason!” when the White House was so obviously breaking the law. The Times couldn’t fall back on that this time. Instead, it should have made it clear that this was not new information — rather, it was an in-depth look at how the White House was following through on a promise it had made within weeks of the Sept. 11 attacks.