Mere seconds after Ed Markey actually won the Senate election, we have our first kerfuffle of the Democratic primary to replace him in the House. As you have no doubt heard by now, Will Brownsberger was the only member of the state Senate to vote against a resolution calling on Congress to amend the Constitution to fix the Supreme Court’s Citizens United decision (that decision, of course, wiped out a century of campaign finance law and opened the door to Super PACs, unlimited corporate expenditures, and other devilry). To his credit, Brownsberger explained at some length his reasons for his vote when he decided to vote against the resolution. The short version of his post is this line from it: “I truly believe that any constitutional process initiated for the purpose of amending that text [of the First Amendment] can only do harm.”
David Bernstein reports that Peter Koutoujian has already sent out a press release saying that Brownsberger’s “no” vote was “troubling,” and BMGer Mat Helman (who, in his disclosure, notes that he has connections with three of the other candidates, including having worked for Karen Spilka) offers a scathing post on Brownsberger’s “double talk” on the issue. With the race likely to present relatively few major policy differences among the candidates, something like this has the potential to be a big deal.
Let’s try to pick this apart a bit.
- What did the resolution actually call on Congress to do? The resolution says that Congress should “pass and send to the states for ratification a constitutional amendment to restore the First Amendment and fair elections to the people.” However, it does not specify further what the amendment should say. That’s important because, as I’ve discussed in a previous post, there are several proposed constitutional fixes floating around. Some are good ideas; some, at least in my view, are not.
- Was Brownsberger really the only “no” vote? Yes. The vote was 37-1; Barry Finegold and Mike Rush did not vote. All the Republicans joined all the Dems other than Brownsberger in voting “yes.”
- Does this actually matter? Depends who you ask. David Bernstein pooh-poohs the whole thing, calling the state Senate’s action a “meaningless, feel-good resolution” and arguing that Brownsberger’s First Amendment arguments for voting against it “would be easy to agree with, if this resolution were likely to actually somehow lead to actual passage of a Constitutional Amendment. I mean, it’s hard to justify being worried that something that will affect absolutely nothing in any way whatsoever poses a danger of going too far.” But actually, I don’t think that’s quite right. No, the resolution itself isn’t at all likely to achieve anything. But Brownsberger is now running for Congress, where his position and his vote on any constitutional amendment, including one addressing Citizens United, might actually matter. So, having stuck his neck out in the state Senate by saying that he doesn’t want Congress to pass an undefined amendment to “restore the First Amendment and fair elections,” it seems to me eminently fair to press Brownsberger to further explain his position.
- What would you ask Will Brownsberger about this, if you had the chance? I’d ask him whether he voted “no” because he didn’t want to endorse an undefined amendment that maybe would go too far, or whether he’s more broadly opposed to the idea of any constitutional fix to the Citizens United problem. The former is, to me, a good answer, since I’ve already expressed my view that one of the major proposals is actually a pretty bad idea. But the latter, which does seem to be where his post on the matter is going (though I wouldn’t say it’s definitive), would give me pause in backing the guy. I do think that Citizens United is a serious problem, and I do think that there are responsible solutions that don’t post any significant threat to free speech or other constitutional rights.
What do you think? Does the Citizens United issue help you pick among five generally pretty solid candidates? Do you need more information? Needless to say, we cordially invite Brownsberger to reactivate his BMG account and offer his views.
I don’t think it was Mat Helman’s intention to misrepresent Brownsberger unfairly, this is an issue that is understandably emotional, but I feel his post did a huge disservice to someone with a great public service record who truly analyzes issues on a case by case basis. I think you summarized Will’s position well, asked fair questions in a fair manner, and asked him to respond and lay out his views. This post was BMG at its best.
For disclosure my Congressman is Mike Capuano who has been exemplary on this issue, I also am a big Will Brownsberger fan from his tenure as my Representative and (however briefly) as my State Senator. He responds to emails and even cell phone calls and will talk through issues. Just like his vote against the popular vote compact, I suspect he views the federal legislature as the place where federal and constitutional changes can and should be made.
I agree though that a libertarian position (even if he limits his own contributions) would be disappointing. There are viable and good reforms to pursue and we need this to change soon. It’s not only important that Markey’s replacement is on the right side of this issue (at least when it comes to the ends) but makes it a significant prioriety. Before we start out the gate lets remember all of these candidates are exemplary (it’s a treat as another poster disxussed) so while contrasts on experience and issues is important we also need to keep the campaign positive.
“misrepresent Brownsberger unfairly”
As opposed to what Faux news admits to behind closed doors: misrepresent fairly.
I get the redundancy, I guess my point was that Helman was not deliberately trying to misrepresent Sen. Brownsberger’s position, I think he misunderstood it and made a response that came across as a rather harsh invective against a more extreme position Brownsberger does not actually hold.
… anything more than a comment on the language – nothing about Brownsberger. I just had a funny thought about the phrase. I read it, and said to myself, “that’s funny because it’s redundant”. Then I thought, “Wait a minute, is the inverse (‘misrepresent fairly’) a thing?” Then I thought of Fox, who’s very founding admitted as much – they figured spinning cravenly (misrepresenting) was ‘fair’ because they figured everyone else was misrepresenting ‘the other side’. Thus “misrepresenting fairly”. It’d be a farcical commentary on conservative media, but rather than that it is a tragedy for journalistic media in general because it’s too true to qualify as a farce, however funny it is.
I could easily see that considering the other doublespeak phrases they employ. I’d honestly respect that far more than their current one. Fairly misrepresenting is what they did on Election Day. Barack Obama was not supposed to win, ergo his victory was unfair, so their desperate misrepresentation makes so much more sense now.
“Why did the ACLU choose to get involved this case? We got involved because political advocacy speech lies at the heart of the First Amendment.
In short, Section 203 of the McCain-Feingold law, while well-intentioned, was a poorly conceived effort to restrict political speech. The ACLU argued that it should be struck down. That`s what the Court did.
We are non-partisan and apolitical. Our client is the Bill of Rights, and there`s no more important right in our view than defending the First Amendment rights of all to petition the government for redress of grievances and to freely and openly engage in political speech.
The ACLU`s position, recently reaffirmed by our national board of directors, is that any government regulation of the electoral and campaign process must be fair, reasonable, understandable, and not be unduly burdensome. It must also assure integrity and inclusion, encourage participation, and protect rights of association, while at the same time allowing for robust, full and free discussion and debate by and about candidates and issues.
Granting government the power to decide who should speak, when, and how much speech is enough is not the answer. Nothing but disaster for the First Amendment flows from that approach.
That`s what was at stake in Citizens United. And that`s why the ACLU — and so many of the half-million members who support us — stand by our position.”
http://www.dailycamera.com/guest-opinions/ci_17229907
has been wrong about this for forty years. Dollars and speech are not equal.
The key here is the political nature of political speech and dollars. Speech is free, within certain limits. We’ve tended to define those limits in terms of infringement to others or societal need. The point here is that the restriction comes to be needed when otherwise free speech bumps into some other kind of interest that we want to protect to some degree. “Fire” in a theater bumps into interests of safety (and possibly order – but that’s rife with potential abuse). It’s been my contention that money shouldn’t equal speech in the political arena because in that area there are some interests that we should be protecting.
In particular, if you want to make dollars as free as speech, I’d actually argue that this might be permissible if certain protections are also put in place in the interests of fair elections and a reasonable marketplace for the competition of ideas. A one-sided money bomb isn’t reasonable because the ideas and politics of both sides are not able to be weighed by the public when all they really hear is one side. The protections I’d put in place that might work (collectively) would be 1) guaranteed cheap rates for the policians actually running for media buys in the public spectrum, with a guaranteed minimum, 2) a non-candidate media blackout period just before election day (probably a few days or up to a week), and 3) a minimum election subsidy for candidates sufficient to take advantage of the blackout period. This set of restrictions are designed to protect the public’s interest in actually hearing the candidate and their ideas. The intent is to create a media space where this interest is protected from being drowned out in a money bomb. This is the thing that gets me about money being equal to speech – there is a legitimate public interests in clearly receiving the candidate’s message. This is an interest because you’d hate for the public to overlook someone merely because they couldn’t hear him or her over the din. That is, if politics is a battleground where ideas compete, and we like it that way, then the public has an interest in reasonable terms of competition.
You should ask lawyers, but I don’t think this is beyond current legal frameworks in other areas. In particular, what is the prevention of a monopoly other than restriction of capital in private transactions because of public interests in a working market? I think the same framework should be at play in our political market – we want that market to work and that means ensuring ideas get a hearing to be fairly considered.
that if I hand a twenty to the nice parking enforcement officer, I can’t plead my 1st Amendment Right of Free Speech? Doesn’t sound fair to me.
I don’t know if it were this particular vote or some other similar action, but when talking with Sen. Eldridge about it he seemed to confirm that the point was to get other states to join to get Congress to call a convention to propose an amendment on this matter, for which 2/3 of the states per Article V would be required to act.
Also, to be clear: if 2/3 of the states issue an “application” (whatever that is) for a convention, Congress must call one; it has no discretion. As I’m sure you know, this has not happened since 1789.
…both on the absence of discretion and that it hasn’t happened. I don’t know if there is an exact wording formula that must be followed, but I assume that an application can just be a resolution stating the wish to call a convention, for example: “RESOLVED that pursuant to Article V of the United States Constitution, the Legislature of the State of_________ hereby petitions the Congress of the United States to call a convention for the purpose of considering amendments to the Constitution relative to reversing the effects of Citzens United v. Federal Elections Commission as decided by the the Supreme Court.” If 2/3 of the states adopt this resolution the process can move forward. Again, just a thought as I am not aware of what if any enabling legislation to apply this option in Article V has been adopted.
As I understand it, there is no constitutional provision (and no precedent) for limiting a constitutional convention to just one topic. That means that gathering any constitutional convention provides an opportunity for proposing ANY amendment on ANY topic.
In my view, a constitutional convention is a dangerous move fraught with great risk of making an already bad situation far worse. Our constitutional protections are already under withering assault — in my view, this is not the time to “adjust” them.
A convention hasn’t been called since 1789. So it’s an open and very interesting question whether a convention can be limited, or must be open. Personally, I don’t see why it couldn’t be limited by the terms of the application that the states file with Congress.
In the political climate we are living in today, I wouldn’t want any of the likely participants in a constitutional convention to get their hands on the foundation of my government. As I understand it, the net result could be a document fundamentally different from what our Constitution is today, up to and including our representation, or rights as citizens, and what we see as our Bill of Rights. Don’t mess with it.
The only comment I’ll offer is people should read the 3rd paragraph:
Bernstein.
I get that Citizens United actually is entangled with the First Amendment in ways that make a straight repeal complicated. However, I disagree that we can solve this problem only by voting for people who take some kind of integrity pledge.
It’s like so many other things (e.g. taxes, energy efficiency) that should not be voluntary acts of personal virtue. The corruption of politics by money is a systemic problem and its solution is systemic as well.
I remember back when there was no shot clock in college basketball and some coach was advocating adding one because the lack of one led to boring “action” at the ends of games. However, until a shot clock was implemented, he also would have his team run a boring “four corners” offense if it was the best choice to win the game.
The same is true for campaign finance. There are many candidates who are fine with the idea of limiting money in politics but they are not going to “self-regulate” if they know that means a lost election.
and considerably more troubling to me than Brownsberger not wanting to mess with the Constitution. And I do not use the word “frighteningly” lightly. IMO the biggest problem in American politics today is how big money buys influence — not just by lobbying and not even just by campaign donations. Just one example: The threat of primary campaign donations to opponents is stifling gun legislation in this country by making so many members of Congress afraid to stand up to the NRA. Now this is compounded by unlimited corporate money. Anyone who thinks this can be fixed simply by, in effect, telling voters to do a better job does not share my view of the problem — in fact does not even understand the problem. I consider that a deal breaker.
For disclosure, I’m already supporting Will in this race and have known about this vote for almost a year.
To my mind, this vote is a great example of why Will would make a great Congressman. This vote seems like a no-brainer — no one likes the Citizens United decision and here was a great chance to signal displeasure about it. But what the heck does “…RESTORE THE FIRST AMENDMENT AND FAIR ELECTIONS TO THE PEOPLE…” really mean? Are we talking about amending the First Amendment here or maybe the Fourteenth? What specific rights would we be taking away from “corporate persons” with this amendment? These are questions that might give a thoughtful person pause before mindlessly voting Yes. Will was that thoughtful person almost a year ago.
As this campaign goes on, we’ll certainly hear a lot more about this vote, mainly because the candidates are all so close ideologically on most issues. How Will handles this will be crucial — he’s taken a nuanced position on something that the other candidate haven’t. As a long-time constituent, I see this as yet another example of the thoughtfulness with which he approaches EVERY ISSUE. Voters just learning about the candidates don’t have that history and will need to hear a good explanation from Will about this vote.
To see how he’s responded to constituents concerns about his position on that Citizens United repeal, see
this. Will is a truly “open source” legislator and you can view what his constituents felt about his vote (they generally didn’t like it) and how Will responded. I would be THRILLED to be represented in Congress by someone who was so transparent and open.
I am disappointed in the start of this race.
I’m disappointed Will Brownsberger doesn’t seem to understand that self-regulation simply won’t work. Saying “It’s not a legal system fix that’s needed, it’s an integrity fix,” indicates he doesn’t fully appreciate the systemic role that absurd amounts of money play in this election. Maybe he didn’t notice the $100m+ Sheldon Adelson spent on the last election… just not sure how he plans to enforce “integrity.”
But I am also disappointed in Peter Koutoujian. Just hours (can’t really call it a day) after launching his campaign, he starts off with an attack on Brownsberger on a year old symbolic vote. It’s a reasonable point to make (for reasons explained in this thread), but at the same time, I’m not sure that the best way to kick off his campaign is with an attack on one of his opponents. He could have spent that time making a positive case for himself. I’m not saying attacks won’t happen, but, geez, right out of the gate like that? I’d hope that he’d do more to say why he’d be a great Congressperson, not why Will wouldn’t–at least to start. Oh, right, that’s not how you get headlines.
And, lost in all this back-and-forth about Citizen’s United is that only 4 of the 5 candidates have said they’d sign on to the People’s Pledge — Katherine Clark, to my knowledge, has not. It would be a shame if 4/5 of candidates agreed to sign on to the Pledge, but our airwaves got polluted by outside interest groups because of one lone hold-out.
C’mon, MA-5 candidates. We can do better.
@rickterp: I agree 1000% with what you said. I had a great email exchange with his staff (and later him) over the Electoral College vote and why I had his back on that one. We seriously disagree on legalizing marijuana and reforming drug laws, but he took the time to tell me he understands my position and in his experience as a drug prosecutor arrived at a different conclusion but we agree on pursuing better altenativr treatment options an he has been a leader on that front. I really hope his nuance and thoughtful approach to issues doesn’t kill him in this race. It does seem he may be the front runner if people are ganging up on him.
@afertig: I liked your comments about how it’s not good that this race has gotten off to a bad start, I would disagree with your and ocean dreams “deal breaker” feelings about Will on this issue. I hope he can come into BMG and explain what reform proposals he does support. That said I will agree that self-regulation is a terrible idea.
I’d love to hear what he would support and what he would not. Totally agree with David’s point in No. 4. above. Some proposals are problematic, others are good.
If he in fact voted against this because he’s not enthusiastic about amending the constitution to fix the problem of the court believing portions of the bill of rights apply to corporations just as if they were people… well, that would be clear cut, and somewhat defensible, but IMO very wrong and contrary to the views of most voters.
If on the other hand he voted against it because he has nits to pick with specific amendment proposals and thought that by voting for this resolution he’d be somehow bindingly supporting all such proposals … then it would show a fundamental misunderstanding of politics and democratic process that I think goes to the heart of what can make a legislator effective or ineffective. He’d be basing his vote on a technicality when he’s actually voting not on the mechanics of a specific law, but on attempting to lend moral support to a broad movement.
If his answer lies along these lines then it would change my opinion of his candidacy significantly downward. Yes, I’ve already picked my candidate and it isn’t Brownsberger, but I have a positive impression of him and have been telling people that I think he’d do a good job. This would call that opinion into question.
From a purely political point of view Brownsberger is so tone deaf on this issue it worries me. I don’t know how someone so out of touch is going to build consensus in the Congress. Also somebody so out(apparently) naive sounds like the next Martha Coakley.
On the actual Constitutional Amendment of course it isn’t poorly written. This issue point-making not jurisprudence. If an amendment ever becomes politically obtainable I would hope we have something tighter.
Finally on the”constitutional conventions”. Remember these gatherings were illegal to begin with. They were essentially an attempt to justify a regime change from the Articles of Confederation. So to speak of precedent or norms for these one may as well use the history of Tahrir Square gatherings to guide the writing of the latest Egyptian Constitution.
It would have been pretty easy to simply cast the same vote as everybody else.
I don’t know anything about Brownsberger, but I respect his courage to be different during an election.
I am not sure that a politician who chooses being different based on what many feel are, “baby – bath water principles” or “nuance” as stated by some above, will be an effective legislator in Congress. Being a lone wolf in the current Congress, (or the MA delegation for that matter) that is stuck in it’s inability to move beyond deep philosophical divide, may simply not be effective. We may be an intellectual leaning crowd here – that may consider and respect the complexities and paradoxes of deep thinking, but honestly, that is not the norm. I don’t see intellectualism trumping political savvy and the skills to get forward movement in our current society.
Respectfully, that is what I believe Brownsberger choose in his vote on Citizens United. He chose to be different at the price of not supporting his colleagues in the attempt to move the issue forward. I think an effective legislator would have spoke into the record about her/his philosophy on First Amendment and educated her/his constituents on the nuances but voted to support the call to strike it down.
The call to strike down Citizen’s United is an easy to understand call to action. This is why Elizabeth Warren supports it and why the vote was so high in the State Senate. This is also why Common Cause has gotten so many communities in Massachusetts to support overturning this decision and why it makes no sense at all for Will Brownsberger to have voted against the amendment. I have heard the ACLU is currently not supporting it but there is a split in their thinking on the issue…and as a member I am certainly not in agreement with their current take on this issue.
Just to clarify: this vote occurred roughly a year ago, well before there was any significant prospect of Ed Markey vacating his seat.