Media Nation

Message to all free-agent pitchers: Come to Boston and get hurt, and this is how you’ll be treated, no matter how much you’ve contributed in the past. “HERO TO ZERO” is the screamer on the front of today’s Herald, accompanied by a photo of a shell-shocked Keith Foulke.

Foulke doesn’t strike me as the most pleasant fellow in the world. But the real story of his collapse, as everyone knows, is that he was perpetually injured following his phenomenal 2004 World Series — both knees and his pitching arm. Not that I’m keeping count, but I believe he went under the knife twice before coming back in 2006 and, between stints on the disabled list, proving himself to be a useful middle reliever.

The usually sensible Tony Massarotti acknowledges all that in today’s Herald, yet still piles on with this:

Now Foulke is gone and here is the truly amazing thing: No one is shedding a tear. Not Foulke, not Epstein, not anyone who has watched the Red Sox over the past two seasons. That might all be considered sad were it not for the simple fact that Foulke brought so much of this upon himself.

Because he mouthed off a few times? Please. If, last year, Foulke had been anything like the closer he was in 2004, Jonathan Papelbon probably would have won 18 to 20 games as a starter, and the Red Sox’ season might have turned out quite differently, despite all the injuries. And no one would care about Foulke’s attitude.

The new Phoenix media critic, Adam Reilly, takes the helm of the Boston Phoenix’s Media Log, a blog I started in 2002 and that was capably handled by my successor (and predecessor!), Mark Jurkowitz, from mid-2005 until earlier this year.

I’ve fixed the link in the right-hand rail so that clicking on Adam’s name will take you to Media Log rather than the Talking Politics blog. Also, at long last, I’ve heeded Donna Halper and fixed the link to Altercation, by Eric Alterman, who moved his blog from MSNBC.com to Media Matters quite some time ago.

Now that the latest attempt to outlaw same-sex marriage has ended, I thought I’d share some thoughts about the procedures used by gay-marriage supporters.

Some of this is repetition, and virtually none of it is original with me. But I’d like to pull together a few strands in order to address the question of whether the Legislature acted illegally or unconstitutionally (almost but not quite the same thing) by refusing to take up a constitutional amendment to ban gay marriage. Those who believe that legislators acted improperly have a serious argument to make. I think they’re wrong, but it’s a close call.

Let’s begin with the whole notion of what a constitutional amendment is. In theory, it can be anything — it is the most radical step the government can take. At the federal level, you could bring back slavery and deport anyone whose last name begins with “Q,” and there’s nothing that anyone — not even the Supreme Court — could do about it. By definition, a constitutional amendment cannot be unconstitutional, because it’s part of the constitution. (You couldn’t take such radical steps at the state level, because state constitutions may not grant fewer rights than the U.S. Constitution.)

Given these facts, it ought to be extraordinarily difficult to amend a constitution. At the federal level, it is: you need two-thirds of each branch of Congress and three-fourths of the state legislatures. In Massachusetts, though, amending the state constitution by citizen petition is ridiculously easy. Once a petition comes before it, the Legislature, meeting in joint session as a constitutional convention, need only muster one-fourth of its members to keep the amendment alive. The amendment must garner a one-fourth vote again during the next session of the Legislature, and then it goes on the ballot. If it passes by a simple majority vote, it becomes part of the state constitution. Thus, 50 percent of the voters plus one would be enough to deny gay and lesbian couples the right to marry.

The anti-gay-marriage crowd’s cry of “let the people decide” is, on its face, ludicrous. By requiring that 25 percent of the Legislature approve an amendment in two consecutive sessions before sending it to the voters, the state constitution acts as a check on the most dangerous measures. You can get 25 percent for almost anything; but you can’t get it for everything. For a legislator to vote “yes” merely for the sake of putting the question on the ballot would be irresponsible.

The proposed gay-marriage ban, though, is another matter. Although I think it’s a terrible idea, there is nothing inherently dangerous about it. Plenty of states have amended their constitutions in order to prevent gay marriage from being legalized, and all of them have survived. The gay-marriage ban also clearly enjoys the support of more than 25 percent of Massachusetts legislators, though less than a majority. Which is what brings us to our current dilemma.

There is a school of thought — more reasonable than “let the people decide” — that argues that the Legislature has a constitutional obligation to hold an up-or-down vote on constitutional amendments. Here is the language from the Massachusetts Constitution:

Section 3. Amendment of Proposed Amendments. A proposal for an amendment to the constitution introduced by initiative petition shall be voted upon in the form in which it was introduced, unless such amendment is amended by vote of three-fourths of the members voting thereon in joint session, which vote shall be taken by call of the yeas and nays if called for by any member.

Section 4. Legislative Action. Final legislative action in the joint session upon any amendment shall be taken only by call of the yeas and nays, which shall be entered upon the journals of the two houses; and an unfavorable vote at any stage preceding final action shall be verified by call of the yeas and nays, to be entered in like manner. 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.

This would seem to argue that, indeed, the Legislature must vote on the amendment itself, and not on a procedural question such as yesterday’s motion to recess, which only required a majority. David Kravitz of Blue Mass. Group made an interesting case for this last summer, writing:

There’s a right way to defeat the anti-marriage amendment in the legislature: convince 151 legislators to vote “no.” If that happens, then the backers of the amendment have lost fair and square, and it’s game over. But if the amendment isn’t allowed to come up for a vote, it’s a good day for Kerry Healey, and a bad day for the democratic process.

That’s the heart of the argument, and Kravitz puts it well. Thus it seems to me that those of us who defend the right to kill the anti-gay-marriage amendment by any means necessary need to explain why the Legislature is not obligated to vote on the measure. And to that, I would offer the following:

1. The Legislature, meeting as a constitutional convention, is a parliamentary body with its own rules and procedures. If the moderator — the Senate president — recognizes a member who then moves for a recess, is he supposed to rule that motion out of order? The customary procedures of the Legislature allow for members to call for a recess, and such a motion need only pass by a simple majority. Anyone who’s familiar with Robert’s Rules of Order should understand that. Proponents of a constitutional amendment need to get 25 percent by following the rules, not by having some outside authority put its thumb on the scale by suspending the rules.

2. The state’s Supreme Judicial Court is the arbiter of whether such parliamentary maneuvers are unconstitutional, and it has never issued a clear ruling saying that they aren’t. Which brings me to —

3. The anti-gay-marriage amendment is far from the only proposed amendment that has been killed through parliamentary maneuvers such as yesterday’s. On July 21, 2002, Boston Globe columnist Jeff Jacoby noted that, 10 years earlier, then-Senate president William Bulger had used the very same tactics to kill an amendment that would have imposed term limits. And to return to #2, the SJC subsequently ruled that it did not have the authority to force the Legislature to vote. Jacoby wrote:

The sleazy maneuver succeeded. The amendment never made it to the ballot. Its proponents asked the SJC to order the Legislature to perform its duty, but the justices said they didn’t have that power. Still, they made it clear that Bulger and his minions had violated the Constitution: “Efforts to obtain term limits by a constitutional amendment foundered,” they wrote, “because of the refusal of the Legislature in joint session to take final action on such a proposal as the Constitution of the Commonwealth directed.”

As Jacoby properly observed, the SJC declined to present Bulger with a good-government award. But it didn’t say he couldn’t do what he’d done. Courts do have ways of enforcing their orders, which leads me to believe that the decision fell short of finding that Bulger had violated the constitution, Jacoby’s interpretation notwithstanding. After all, a few years ago, the SJC started selling off state property in order to fund the voter-approved clean-elections law after the Legislature refused to appropriate any money. (The law was subsequently repealed.)

And that’s just one example. As Steve Bailey reports in today’s Globe, the Legislature this week also declined to act on a health-care amendment, and no one is holding up signs saying, “Let the people decide!” And writing in Bay Windows recently, Susan Ryan-Vollmar pointed out that the Legislature has ignored proposed amendments more often than it votes on them:

In the race to appease the good government pundits huffing and puffing about process and giving voters their due, many seem to have forgotten the history of initiative petitions in this state. In the last 100 years, lawmakers have considered nine amendments to the constitution initiated by citizens’ petitions. Only four were voted on by lawmakers. Three advanced to the ballot: a 1938 measure calling for biennial budgets and legislative sessions (which voters approved); a 1974 measure allowing highway taxes to be used for mass transit projects (which voters approved); and a 1994 measure calling for graduated income tax rates (which voters defeated). The fourth, a 1934 measure on biennial budgets and legislative sessions, was defeated by lawmakers.

The other five citizens’ petitions were never voted on. In 1982, a measure that would have changed the way the state budget is handled died when lawmakers adjourned the ConCon without taking action on the amendment. In 1990 two proposals — one dealing with reproductive rights and another with education — died when lawmakers failed to make a quorum for the ConCon. In 1992 a measure on term limits for elected officials died when lawmakers adjourned the ConCon. And in 2002, a measure seeking to amend the state constitution to prevent same-sex couples from marrying died when lawmakers adjourned the ConCon.

You may not like the way the Legislature does business when taking up constitutional amendments. But if you want to argue that legislators have a unique responsibility to vote on an amendment that would take away rights from your gay and lesbian neighbors, you’ve got to ignore a lot: the Legislature’s right to follow its own rules and procedures; the lack of any clear guidance from the state’s highest court; and a century’s worth of history and precedent.

And, yes, the Legislature this week did the right thing.

Despite his best efforts, John DePetro is not going to get his job back. But it may slowly be dawning on the brainiacs at Entercom that they should have said they were removing DePetro from his slot at WRKO Radio (AM 680) because of his lousy ratings — period. To claim that they couldn’t tolerate DePetro’s “fat lesbian” crack at a station that could market itself as the Hub’s Home of Homophobia is laughable.

DePetro may get a decent settlement out of this before returning to Rhode Island, where he was a radio talk-show host in the Providence market before coming to Boston, and where he still lives.

Bay Windows is blogging the state constitutional convention, at which opponents of same-sex marriage will take another shot at discriminating against gay and lesbian couples.

The veteran CBS News reporter, best known for his work on “60 Minutes,” has died at the age of 65. Howard Kurtz has the details.

In a profile today of entertainment mogul David Geffen and his interest in buying the Los Angeles Times (last item linked, below), New York Times reporters Geraldine Fabrikant and Sharon Waxman write that the New York Times Co. has said the Boston Globe is not for sale.

Knowing that the Globe recently posted a correction for a similar assertion by columnist Steve Bailey, I thought a review was in order. See if you can make any sense of this:

“Times Co. has said repeatedly that the Globe, despite its continued poor financial results, is not for sale.” — Steve Bailey, Boston Globe, Oct. 25

“Because of a reporting error, a Page One story and headline yesterday about a group of local business executives exploring a bid to purchase the Globe incorrectly stated that The New York Times Co. has repeatedly said the paper is not for sale. Times Co. executives have not commented publicly on any potential sale of the Globe.” — Correction, Boston Globe, Oct. 26

“The New York Times Company says The Globe is not for sale.” — “Today in Business,” New York Times, Oct. 26

“Times Co. officials had no comment yesterday. In a memo to Globe employees, recently appointed publisher P. Steven Ainsley said federal securities laws prohibited Times Co. officials from commenting on potential mergers and acquisitions, regardless of whether the rumors ‘are true or not.'” — Robert Gavin, Boston Globe, Oct. 26

“Catherine Mathis, a spokeswoman for The New York Times Company, said the company did not comment on potential acquisitions or sales. ‘We view The Globe as an important asset,’ she said.” — Landon Thomas Jr., New York Times, Nov. 2

“A Times Co. spokeswoman declined to comment, referring me to previous statements, which talked about the company’s commitment to growing Globe revenues, but acknowledging it is constantly reviewing its portfolio.” — Steve Bailey, Boston Globe, Nov. 3

“The New York Times Company, which owns The Globe, has said the paper is not for sale.” — Geraldine Fabrikant and Sharon Waxman, New York Times, Nov. 9

Here’s what it looks like to me: Whenever anyone actually asks someone at the Times Co. about the Globe, the response is a non-response. But whenever the urge strikes to stick in boilerplate language, the bit about the Globe’s not being for sale creeps in.

Perhaps the oddest aspect of Deval Patrick’s big win yesterday (click here and here) is that there seems to be almost nothing to say. This one was over weeks ago. He made it look easy, from the beginning of the campaign to the end, which is a sure sign that he was actually working like a Stakhanovite. It doesn’t even seem all that remarkable that he’s our first African-American governor, and just the second in post-Reconstruction America.

And yes, I accept the proposition that Patrick’s stands on the issues were not as hazy as his critics would have it. His Web site is loaded with position statements, which one day I might actually get around to reading. But it’s nevertheless true that he refused to be pinned down too precisely, which will stand him in good stead now that he has to deliver. His repeated assertion that he has “no plan to raise taxes” is a classic example of keeping your options open.

Whither Kerry Healey? She’s not better than her campaign, because it was her campaign. But she could become better than her campaign, and, despite her pathetic performance, she might have a future. I was struck by Jon Keller‘s assessment on Channel 38 last night: by all rights she ought to be finished. Yet the Republican Party is in such dire straits that she’s one of the few remaining figures who could pick up the pieces.

First, though, she might try apologizing for insulting the public’s intelligence for two months with one of the most negative, disingenuous campaigns in the history of the state.

Media Nation is officially nonpartisan. But I’m not going to pretend to be anything but pleased by the Democrats’ taking back the House and possibly the Senate, too.

Still, there are risks involved. Losing would have been too demoralizing for Democratic Party leaders even to contemplate; but winning puts the Democrats in the position of letting themselves become a symbol of all that’s wrong heading into the 2008 presidential campaign.

Thus the Democrats’ first task must be to figure out how they’re going to manage the media. We’ve all seen how it works. Republican talking points dominate Fox News — essentially a party organ — as well conservative media outlets such as the Wall Street Journal editorial page and Rush Limbaugh’s radio show. Folks at mainstream news organizations, ever terrified of being accused of liberal bias, give voice to those talking points so as to seem balanced, even as they ignore or play down Democratic talking points.

That’s how John Kerry’s idiotic joke, a nonstory, came to dominate the headlines for a couple of days last week, while President Bush’s over-the-top accusations that Democratic opponents of the war in Iraq were guilty of something akin to treason were all but ignored. At a minimum, the Democrats need to emulate Bill Clinton by emphasizing a positive message — but responding like crazed weasels when attacked.

Here are three danger spots the Democrats are going to have to think through immediately. Indeed, if they haven’t already, then they’ll be in trouble by this weekend.

Speaker Pelosi. All across the country, Republicans attempted to hang on in part by casting Nancy Pelosi as a “San Francisco liberal” who would seek to transform the United States into a gay commune. It didn’t work, but that doesn’t mean the Republicans won’t keep trying. And now that Pelosi is going to become much better known, the attacks on her may prove to be more effective in 2008 than they’ve been in ’06.

To combat this, Pelosi needs to be a highly visible presence — a reassuring figure whose appeal cuts across ideological boundaries, if not necessarily across party lines. She is said to have made it clear to Rep. John Conyers, D-Mich., that he’s not going to hold impeachment hearings. That’s smart. No matter how badly the White House has mismanaged the war, the fact is that substantial numbers of Democrats voted in favor of it.

More important, to invoke the old political cliché, she needs to define herself before the Republicans do it for her. She may think she’s well-known. She’s not. At a minimum, she’s got to start making the rounds of the Sunday talk shows and raise her visibility. If she performs well, she’ll be an asset to her party regardless of what Sean Hannity says about her.

Democratic committee chairs. Although Pelosi was the principal symbol invoked by Republicans in the just-ended campaign, they also went hard at liberal Democratic congressmen in line for committee chairs. It’s no surprise that their targets included Barney Frank of Massachusetts, who’s gay, and Charlie Rangel, who’s African-American.

Here the Democrats should concentrate on putting forth an agenda on issues that unite the party. Democrats elected yesterday hold differing views on cultural issues such as same-sex marriage, abortion rights and gun control. So why dive into those issues unless it’s absolutely necessary?

This isn’t an argument for moving to the right. I suspect the Democrats can be as left as they like on the war, the environment, corporate malfeasance and pocketbook issues such as the minimum wage. Rather, it’s an argument for respecting the diversity of the party.

Oversight. The Republicans have been remarkably successful in recent years at casting anyone who even asks questions about national security as unpatriotic. The House has now gained subpoena power, and apparently Pelosi intends to use it in order to examine the conduct of the war. Good.

But the Democrats need to remind the public at every opportunity that this is what’s supposed to happen in wartime — that the war effort would almost certainly be going better today if investigations had taken place earlier.

A few months ago Washington Post reporter Thomas Ricks, appearing on NPR’s “On Point” to discuss his book “Fiasco: The American Military Adventure in Iraq,” blamed Congress more than any other player for abdicating its duties by failing to exercise any oversight. Among other things, he noted that, during World War II, Democratic Sen. Harry Truman held hearings into military contracting scandals presided over by a Democratic president and was hailed as a hero.

During the Vietnam War, another Democratic senator, J. William Fulbright, held hearings that helped fuel the antiwar movement even as a fellow Democrat, Lyndon Johnson, was in the White House.

In other words, oversight is not unpatriotic.

I’m skeptical of Gannett‘s motives — could this just be a way to load up on free content? — but its plunge into citizen journalism, reported today in the Washington Post, is potentially of enormous significance.

Here is the Web site of Gannett’s News-Press, in southwest Florida, where the company has been rolling out parts of its citizen-journalism initiative. And check out the special interactive section of the chain’s Des Moines Register.