The ConCon is a sham. Shut it down.

So, there’s a lot of blame flying around here about who “lost” the gay marriage and health care votes yesterday: Hey, you can blame MassEquality for not having their votes whipped correctly; maybe it was the “process liberals”* at BMG. Blame them or us if you want, but berating your friends won’t get you anywhere. After all, if we were the puppetmasters, the anti-marriage amendment would have gone down and we’d have a health care amendment.

No, the legislators are to blame, chief among them Senate President Travaglini, who allowed the anti-marriage amendment to come up (correct, we think); voted for it (dead wrong); and then had the health care amendment killed without a vote, which is the worst of hypocrisy. It has been rumored that Travaglini is set to retire soon; that can’t come a minute too soon. Actually, he should resign immediately. Between his siding against working people in last year’s health care negotiations; his lack of personal self-control and hostility for a governor who hasn’t even taken office yet; his contempt for his gay and lesbian consituents; and his utter contempt for his oath of office, he is creating a dismal legacy for himself.

Who else? How about blaming guys like my Rep, Paul Donato of Medford, who voted to put the rights of married people up to a vote? Rep. Donato, that’s a disgrace, and a real incentive for us to find and support a pro-marriage primary challenger. (I’m waiting to find out about how he voted on the health care amendment — anyone find this info?) UPDATE: Donato is a hypocrite: Voted yes on “Let the people vote”, no on letting the health care amendment see the light of day.

Have we “learned a lesson”? Yes, but it didn’t have much to do with the arguments flying back and forth here, i.e. “process” vs. “substance”. Human beings are protected by laws, including the laws that have been interpreted to allow same-sex marriage in MA. We think that a legitimate, lawful outcome of the constitutional process would have sealed those rights forever, thus creating a real precedent for honest-to-goodness legislative approval of same-sex marriage beyond Massachusetts, no ifs, ands, or buts.

But the snuffing of the health care amendment shows us that constitutional process simply does not exist in current practice. It is a Kremlin-style charade that mocks the rule of law and the oaths of all legislators. So I will say this: If you told us, “Hey, the ConCon is a sham, every bit as fixed as pro wrestling, so you might as well take what you want and move on,” maybe you were right. I don’t remember hearing it put exactly that way, but there it is.

We don’t have a lawful constitutional amendment process, since it is so easily and willfully abused by our legislators. Maybe that’s what you were trying to tell us — although that’s not what I heard.

In any event, it’s time to take the fight — using whatever means we have, persuasive and coercive, right to the Scurrilous Sixty-Two. It is on.

*BTW, is there any less felicitous turn of phrase than “process liberal”? Sounds like something you find in the cheese aisle of the supermarket: “Process liberal cheese food product”. No. I am a liberal who thinks lawmakers should follow the law when making law.

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48 Comments . Leave a comment below.
  1. Politics not process

    What is clear is that the legislature, as I wrote below, has become little more than a criminal gang of 30. They have made a plaything of our Constitution. That is a dangerous anti-democratic situation that affects every Massachusetts resident.

  2. You were told

    "We don't have a lawful constitutional amendment process, since it is so easily and willfully abused by our legislators. Maybe that's what you were trying to tell us -- although that's not what I heard"

    Out of all the petition amendments ever to come before a ConCon, only one was saddled with a public mandate for a completely "pure" process--the one that destroys the marriages of gays and lesbians. Only one. That's a pretty selective application of process purity. And by selective, I mean "discrimination."

    If you were surprised by that outcome, well, the rest of us weren't.

    So while your post calls for going after the scurrilous sixty-two--a good goal--I hope you're serious about the title of your post. We don't need any more of these circus acts voting on civil rights, period. When only black people get pulled over for trivial traffic violations in Wellesley, the answer is not to pull over a few more white people with bald tires just to give better cover. The answer is to recognize discrimination for what it is.

    • Steve - Term Limits was as well; that's why it ended up in court.

      HOWEVER - there were no blogs or independent media back in the day, so Bulger and Cronies were able to stifle dissent, most notably from the Glob.

      Please - never say 'never' or 'only one'.  It usually isn't so.

      • You just

        proved my point. The brilliant spotlight and public mandate forcing the legislators to actually take a vote fell on only one amendment. The anti-gay amendment.

        The rest were quietly buried in the dark.

  3. Not put exactly that way

    But several of us were arguing that if we can't trust the legislature to respect the process in the future, why should we sacrifice marriage equality for the sake of following the process?

    Anyway, what's done is done.  Now, as you say, "it's on."

    Let's make changing the minds of these legislators a priority.  The question is, how can we in the MA progressive blogosphere best do this?  My hunch is that the answer is not the same for every legislator.

  4. There is the perfect world...

    ...we all wish we lived in, and there is the real world we actually live in.  In the real word the "process conservatives" who insisted on a vote because of the principal involved mostly have been very quiet about the health care amendment today.  Where is Mitt's lambasting of the dereliction of duty?  Or could it be that it only really mattered to him in relation to the marriage amendment and the principle was really just a means to an end.  Get it on the ballot by any means necessary.  That sounds vaguely familiar.  I now fully support using any available means to kill this amendment to keep it off the ballot.  I have fallen off the fence on the side of protecting civil rights.  I think the wheels of govt. still turn today despite the killing of the health care amendment yesterday.  Turns out that the end of democracy was not nigh, just the end of SSM.  I am not yet willing to cast aspersions on anyone still married (pun intended) to the process argument, but I no longer respect that position as viable in the real world. 

  5. I like $quot;process liberal$quot;

    I think it makes sense.  There are few things more liberal -- in the philosophical, "classical European" sense -- then thinking that we should follow the rules.  Conservatives (like monarchists) love the idea of running a society according to the whims of an individual.  And like most conservatives, they think that the only individuals whose whims should matter is themselves.

    sabutai   @   Tue 4 Dec 7:00 PM
    • And that individual would be...

      ...Bulger?  Birmingham?  Traviglini?  You really want to call US monarchists?

      Tom Birmingham has a LOT to do with this.  His grotesque nod-wink gavelling at the behest of Ms. Issacson BURNED much good will, and forced this ugly debate.  Said it before, say it again - IF Tom had LET this thing go to the voters five years ago, it would have been voted down and settled (esp. since the original Travis language would have eliminated heterosexual domestic partnership benefits as well!).

      Now, you must toss in the short-sheets that Birmingham made for you.

      • And,

        If Tom Birmingham had not been helped by Brian Lees in sweeping it under the Beacon Hill carpet we might not be wasting more time, energy and resources on this painfully grotesque process of in/equality.

        • Yes, it's ALL the fault of Lees and his mighty Band of Five! <:~(

          • Protecting the minority

            Well, it's interesting to see you pull the minority card in this discussion.  Let's air all the dirty laundry when naming the key players that set this mess in motion.  Birmingham's short sheets swaddled/cover the outgoing  Minority Leader.

            • And Lees was wrong. Was wrong two years ago during the $quot;Finneran-Lees' amenndment travesty, too.

              Like Phil Travis said - Nobody ever signed a petition for civil unions.

              Their mistake was thinking that the issue would go away (hint, hint)

  6. Right on Target Charley

    I think your analysis is devastating in its accuracy. It was Bully Bulger who, in my memory, made the ConCon the sham it is, where the will of one trumps process everytime the Senate President wants it too. It's an unhappy state of mind, but such is our cynicism about the way things tend to be stacked against us that many GLBT's thought it folly to regard the process as somehow constitutionally sacred. The only thing that works is power, not principle, in these contexts. But our leaders and allies are not to blame, however harsh GLBT venting tended to be in the aftermath of the vote. And there'll surely be more anger, but I hope at least it stays on target. We have clarity now.

    I think the label "process liberal" is going to stick, alas, but there's no suggestion that process liberals are cheesey. Naive, perhaps, but in a noble way. Think of the Catholic faithful confronted with the reality of how Cardinal Law protected pedophile priests.

  7. Charley for State Rep!

    How about blaming guys like my Rep, Paul Donato of Medford, who voted to put the rights of married people up to a vote? Rep. Donato, that's a disgrace, and a real incentive for us to find and support a pro-marriage primary challenger.

    Paul Donato needs to wake up and smell the stench of Vinny Ciampa's defeat in another Medford district in 2004.

    Medford has changed.

    Senator:  Pat Jehlen. State Representatives:  Jim Marzilli, Carl Sciortino, and Paul Donato.

    Or as they say on Imus, who doesn't belong and why?

    • Why didn't I think of that?

      Why settle for an OK City Councilor when you can have Charley run against Donato. Any interest?

    • Medford's dreary politics

      Medford's mayor is almost a monarch: The current McGlynn was preceded by his father. The mayor has been in office forever. The town council does not have a lot of power after charter reform was passed. It is hard to argue that the council elections represent much more than a popularity contest: one seat changed but I can think of no actual issues that would explain that change.

      The result is that it is very difficult for someone to gain any sort of prominence or record that would make one say, "I want her/him to be state representative!"

      A progressive Democrat did run for our school board -- on which parents (!) are woefully underrepresented, but lost.

      Very dreary.

      • Look for dirt

        As I said below, it's doubtful there isn't any. Voters are generally sick of corruption right now, so it's high time to find a scandal. It should be easy.

      • Popularity Contest

        Just out of curiousity, I threw together a list of which Medford city councilors got the most votes in Donato's district.  I plead ignorance to anything about Medford's politics, but here they are from the 2005 elections, for the record:

        City Council1-11-22-12-23-17-28-1Total Robert M. Penta2613003363494613625102579 Stephanie Muccini Burke2613193553694743144672559 Paul A. Camuso2962833493624373414632531 Breanna Lungo2752873313464282974542418 Frederick Dello Russo, Jr.2312463193394602924462333 Robert A. Maiocco2362492993444303254152298 Michael J. Marks2492553163613773054022265 William A. Carr2062453012984192114302110 Patricia Brady Doherty2212572863223731953812035 Joseph Maher8410411210811480116718 Write-in507650831
        • How to analyze this?

          If you want a partisan analysis, Penta, Dello Russo, and Doherty are all Republicans.  Penta and Maiocco have been on the council a very long time. Maiocco is active in local Democratic politics.  I suspect that Marks, who is very quiet, is the most progressive of the bunch. That's just suspicion, though.  By the way, Maher didn't really campaign.

          Stephanie Burke was the president of the council going into this election. Carr lost and the presidency passed to Maiocco. There was a sense that Burke, Camuso, Marks, and Carr were a bloc of sorts, and that the new "majority" is Maiocco, Penta, Dello Russo, and Lungo.  Even if that is the case, these blocs are extremely vague.

          A further complicating factor is that much of the council lives in West Medford which Donato does not represent. I don't know which of the councillors, if inclined, could even run against him.

          • Good point

            Of those, the following live in the 35th Middlesex:  Penta, Lungo, Marks and Carr.

            And you actually have Republicans on your council?  In Watertown, I think we're down to all D's and U's.

            • Yes, we have Republicans

              I doubt that Carr would run or be viable as a candidate. Penta would be worse as a state rep than Donato. (Penta, by the way, is full of ideas. I don't vote for him, but he's actually oddly useful.)

              Breanna Lungo always runs campaigns solemnly pledging to be "independent". This amuses me no end because she never tells us what she is being independent from. Yes, I like to read independent thinkers, but the odious McCain and the more odious Lieberman are also "indpendent".

            • We're EVRYWHERE, Sco...heh..heh...heh...

            • Weird formatting point

              I found that when I inserted tables into comments I had to include no newlines.  Any newlines you include appear in your comments and that is why your post has a huge gap of vertical white space. So, replacing angle brackets with parentheses, you have to write: (table)(th)(td)Candidate(/td)(td)Vote(/td)(/th)(/table) and not the nicer looking (table) (th)(td)Candidate(/td)  (td)Vote(/td) /th) (/table) or you'll get four blank lines.

              • My bad

                Forgot to turn off auto-formatting.  From my browser it looks fine, but I'm probably the only person who visits this site via Links.

                • Text, text, gourgeous text

                  I've used lynx before on UNIX. I hadn't realized that I could get a text-based browser for Windows. How wonderful.

      • Carl Sciortino did it.

        • Yes, but

          As I suggest in this comment, replacing Ciampa was easier than replacing Donato is going to be. Carl Sciortino, who won his primary by less than 100 votes by the way, benefited from having some very liberal wards in Somerville in the district and from Ciampa being not so attractive. Carl was also a tireless campaigner. Rep. Marzilli, whose district includes West Medford, gets some of Medford's more liberal voters as well as Arlington.  Donato's district includes parts of Malden about which I know little and parts of Medford.

          This is not a case of "Sciortino did it, so it will be a cinch to replace Donato." It might be as uphill as replacing Maine's entrenched Republican Senators, for example. It'll take more organization than we have now and someone with a lot of energy to carry the torch. Given that there is not even a detectable progressive voice in Medford city government, we have our work cut out for us.

          I'm happy if someone can prove my assessment is too pessimistic by the way. Anyone with more experience in Medford politics? I'm a newbie at this.

  8. Changing the Legislature 101: How to Replace the Insiders

    It's happened before.  Every once in a while, usually in 20 year cycles, the public gets so fed up with the incumbents that a "outsiders in and insiders out" revolt erupts among the voters.  It's not a partisan thing, just an anti-incumbent and breath of fresh air thing.  So how to do it for 2008?

    Primary turnouts are usually too small to pry incumbents' fingers off their offices.  Not always, but usually.  Running as an Independent or third-party candidate, while a sure bet for the November ballot, almost always results in splitting votes between the major Party candidates, again resulting in a cake walk for incumbents.  But there's another way to skin this cat (with all apologies to PETA):  take out papers and run as Republican candidates. 

    Anyone registered as a Republican at least 90 days before nomination papers are available (I believe that's the deadline) can seek the GOP nomination for legislative office.  You don't have to stay a Republican once elected, but if you do it'll be a two-fer:  ousting the insiders and injecting a healthy dose of progressive politics into the GOP.  Just like the GOP of the Saltonstalls, et al.  And don't argue principles with me--a Party's members make its principles and the bedrock principle of the GOP is respect for individuals.  Hard to remember that sometimes given the national scene, but it's the historical underpinning of the GOP and worth returning to in Massachusetts. 

    Any counterpoint, Shana?

    • It's too late

      The legislators will already vote for a second time by the next election. And the vote will probably take place well in advance, to give them cover.

      Certainly, one thing to do is to start exposing corruption. State legislators in any state always have their fingers in dubious deals. It's just the way the world works. So, take the sixty-two, and do some amateur gumshoe work. I'm certain you can find some log-rolling with developers or inappropriate dealing or court-fixing in their closets. Make hay. Hell, make 'em resign.

      • Fortunately

        You don't have to defeat them in an election between now and then (which there isn't one) or make them resign (which would be hard) or any of that.

        You just have to get eight of them them to be out of the room for the vote.

    • Amicus - may I offer an alternative scenario?

      Stop voting the striaght (no pun intended) Democrat party line.  Stop voting for a pro-life, anti-gay Democrat over a pro-choice, pro-gay Republican (Hi there, Sen. Sprague!) to 'send George Bush a message'.  I assure you - NOBODY in DC is amazed when yet another Democrat is elected.

      The MassDem obsession with the national party is what has KILLED the Saltonstall/Richardson/Brooke Republicans.  We'll be picking a new chair towmorrow night - out of the 8 candidates, the ideologues can argue that we might as well drop any pretense of bipartisanship or working with the other party, since we wouldn't get credit for it anyways, and they'll stab us in the back as soon as they have a chance, so we may as well become Robertson Republicans and solidify our 20%.

      • Peter, You Presume Too Much

        Like, f'rinstance, that Massachusetts Democrats have any unifying principles other than hatred of Republicans.*  Why else would Stevey Lynch (anti-choice, anti-gay, big spender) be in Congress over former Senator Jo Ann Sprague (pro-choice, pro-marriage equality, fiscal hawk)?  The only thing that gets my goat is how much they then moan that social conservatives, like Lynch, or crooks, like Wilkerson, are in office when they helped vote down great Republicans to sustain them in office.  Don't vote for Republicans because you like 'em, folks.  Instead, just like Cod Liver Oil, vote for Republicans just once in 2008 because it'll have a purgative effect on Massachusetts politics that will last for the next 20 year cycle....

        *"We don't need Republicans in Massachusetts." --Mike Dukakis, 1988

        • Amicus, you are incorrect

          Since the gay-marriage thing has started, exactly 5 legislators have lost seats.

          4 were Democrats who lost in Democratic Primaries.

          1 was a Republican who lost to a Democrat.

          Your argument is simply in contradiction to the facts.

          You even bring up Wilkerson.  Answer this -- who came closer to defeating her, her Democratic Primary opponent or her Republican opponent.

  9. Donato my rep. too -- can he be beat?

    He barely beat a primary challenger in 2000 to get the seat. Same challenger (not necessarily a strong candidate) ran as an independent and got 34% of the primary vote in '04. Any pro-equality Medford or Malden City Councilor interested? I'll be a good fundraiser and tireless supporter ;)

    A LOT of people I know in the district have about had it with him. Medford has changed and he hasn't. It's time to go!

    Other seats worthy of consideration are listed in an earlier post.

  10. I think I'm a process liberal

    ... and I define it as liberal, but willing to accept the results of an open Democratic process.

    The process for amending the Constituion is confusing, certainly, but as long as it's written down and followed, I'm OK with that.

    The ballot may pleasantly surprise us.

  11. The ConCon

    Here is an e-mail I sent to my home town paper today:

    "A Cape Cod Times article said:

    "But last week, the state Supreme Judicial Court ruled unanimously that the Legislature had a constitutional duty to vote on the initiative petition. Even so, the state's highest court said it could not force the Legislature to take a vote."

    Not so.  The legislature has no such duty.  It does not have to vote on anything if it does not want to.  And the Supreme Judicial Court is forbidden by that same Constitution to interfere with the duties of the General Court - the legislature, or to rule about any of the legislature's functional processes:

    Declaration of Rights of the Constitution - Commonwealth of Massachusetts -

    Article XXX. In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.

    That is the final Article in our Declaration of Rights and it would seem that the Supreme Judicial Court has forgotten it.  And it also seems that the members of the Massachusetts legislature have also ignored it."

    The legislators need some serious reprimanding.  The legislature cannot be swayed or moved or threatened by anyone and especially not by the Supreme Judicial Court.

    It is called the "separation of powers".  And NO!  They are NOT co-equal branches.  "The legisltative is supreme" said John Locke.

    Send every legislator a copy of Article XXX of the Declaration of Rights regarding our gogernment of the Commonwealth - "to the end it may be a government of laws and not of men."

    • It is pathetic

      that no voice stepped forward to say the obvious, as you did: The SJC completely overstepped its bounds, a mistake made even worse by its ridiculous misreading of the plain text of the Constitution.

  12. $quot;Berating your friends$quot;

    Why is it necessary for so many at BMG to scold and condescend to the people whose rights are at stake?

    You know what?  We're all well aware--painfully so--of the fact that you have power over our lives, and that our ability to legally care for our families (think about that) can come only at your say so.  It's not necessary to remind us all of that fact every time someone says something that you perceive as not being sufficiently respectful of your righteousness.

    It's pretty clear that some of you feel just as entitled to have this power over the lives of gay and lesbian people as do the anti-gay haters.  You are our friends, you insist, and will only use your power to do good.  Fine, thank you.  But why do you feel such a need to be thanked?

    I, for one, don't believe you are entitled to have any such power.  That's not a legal argument; it's not a constitutional argument; it's a moral and ethical argument, and that's all I've got.  But I feel pretty strongly about it.  In fact, the very glibness with which other have people set about defining the contours of my life is, to me, the bitterest injustice of all.

    That's all irrelevant, of course, as far as the real world goes, and as far as actually securing my ability to legally care for my family.  Yes, we need you, okay?  And this comment is probably off-topic and non-constructive.  I'm not interested in arguing, I'm just trying to help you understand where some of us are coming from.


    Anyway, yes, Medford leapt out at me on that list of Reps.  And one of the BMG editors actually lives in the district?  Woohoo!  Let's go!

    • We do not have power over you

      Society has power over all of us. I appreciate what you say, but maybe you can save the guilt for those who are actively trying to limit your rights.

      I haven't read all the posts, and if anyone feels superior to anyone else, shame on them. But as you yourself note, their wrong does not make your right.

      Now let's focus on our collective rights, and if I can marry, you can marry. If others object, the wall will fall in time.

  13. Thanks Charley

    This was a good post from you.

    What ultimately shifted me from your position on voting for the process to wanting to kill this at all costs was the hypocrisy of it all. I KNEW the healthcare amendment would never come up for a vote - it was more than obvious. It didn't matter how much the Health Care people kicked and screamed; the amendment died this summer. The marriage amendment was completely seperate and, as was proved by yesterday's vote, had NOTHING to do with health care.

    Some of the constitutional principals have clearly died, including the ways and means constitutional amendments get passed. Because of that, I was much more willing to defeat the ban at all costs because the constitution has essentially become that early 1800s era law that requires men in Massachusetts to bring a gun to church. Clearly, whether that's on the books or not, it's not a law any more. Neither is forcing an "up or down" vote.

    What we, as "process people" should want is a revamped process that WORKS in today's age. My proposal is 50% support in the leg in 2 different congresses (not 2 years in a row, 2 different consecutive congressional bodies), then 2/3rds plebescite. Furthermore, an initiative process should just be an alternative way to get amendments going - not have any reduced requirement for ultimate passage.

    Furthermore, because legislators are always going to find some sort of parliamentary manuever, we should just accept it and allow it. No bill should require a yea or nea, some bills just need to die. Of course, that means good bills will die too. That's why we elect and reelect representatives every 2 years.

    That said, we could limit the ways in which manuevers are had. For example, sending amendments to committee is a terrible way to kill a bill... while I could see the need to study some amendments further, any "committee" should have a set time, after which there's a set date a new vote would take place. The only procedure I really like is the filibuster, because that means it has to be pretty darn important to kill (since what legislator in their right mind would want to talk for 10 hours about nitpicking issues? They're boring and stubborn, but not that boring and stubborn).

    • Just by way of clarification...

      50% support in the leg in 2 different congresses (not 2 years in a row, 2 different consecutive congressional bodies)

      The current process requires 2 different legislatures. In this case, it'll be the '05-'06 legislature and the '07-'08 legislature. The votes may happen to be in 2007 and 2008 (or they could even both be in 2007), but they are two different legislatures.

      Of course, the necessary percentages are different than in your proposal. I'm just saying this in case you were under the belief that the current state of affairs merely required two consecutive years.

      Now, for my feedback: I think I agree with the 2/3rd "plebescite" requirement. Just as the US Constitution requires 3/4 of states to ratify, we ought to have stronger proof that this amendment is indeed deemed necessary.

      This does run some risks. For example, an amendment explicitly guaranteeing SSM would never pass, and if the SJC had ruled otherwise, gays would be SOL, whereas under the current 1/2 plebescite, they'd have an excellent chance... maybe not today, but definitely in the next decade.

      I'm uneasy about the higher bar for initiatives in the legislature. I think it would kill the initiative process. It would be far more productive to lobby legislators than it would be to collect signatures. I'm not sure whether this is a good thing or not, though.

      Furthermore, any amendment actually dealing with the legislature would never never stand a chance. E.g. under the current system, term limits almost saw the light of day (except of course for the parliamentary maneuvers which I personally think have to be dealt with). If half the legislators had had to approve it, it wouldn't have even gotten close. Never never never.

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