To the rest of the potential candidates: come on in, the water’s fine!

Today, former administrator of the Centers for Medicare and Medicaid Services Dr. Don Berwick released the following statement regarding his candidacy for Governor of Massachusetts:

“A few months ago I announced that I was exploring a run for Governor of Massachusetts. I feel proud of and grateful to this state, and I want to find the best way to give back. Over these past few months I have visited with and heard from folks in towns around the Commonwealth – from the Berkshires to Boston and from Cape Cod to Cape Ann.

We talked about the amazing progress our state has made in education, in building a healthcare system that can be a model for the nation, and in reaching out to its most vulnerable citizens. We talked about the spirit and values of Massachusetts – how in spite of an economic downturn, and in the face of adversity and challenges, our people and our leaders have been able to persevere and continue the progress of our forebears.

But we also talked about how we can do better. We can do more to ensure that the opportunities Massachusetts has given to me and to so many others are open to every single child in the Commonwealth.

We lead the nation – with hard work and a continued commitment to making our state better and taking care of the most vulnerable among us, we can ensure that tradition of leadership continues.

As a doctor, an educator, an innovator and someone who has dedicated his professional career to making things work better and to helping people – I am ready to lead.

That is why I am announcing today that I am a candidate for Governor of Massachusetts.

Our state faces many great challenges, and I want to work with you to address them together.

There will be a time for an announcement tour and traditional campaigning later – but for now, I am encouraging all of my supporters to take another step toward ensuring Massachusetts continues to lead the nation – by doing everything they can to elect my friend Ed Markey to the United States Senate.

We need to ensure that reliable, strong leaders like Ed Markey represent Massachusetts in Washington and that they stand up for progressive values and common sense leadership.

I look forward to working hand in hand with Senator Markey in the coming months and as your next Governor.”

The poll shows very few undecided voters – only 4%.  It also shows Gomez leading among unenrolled voters by only 9% – far short of what he needs to have any kind of a shot at winning.

It seems clear that there is going to be no late-breaking surprise surge in this race the way there was in 2010.  If Gomez pulls out a win, it will be because he and his supporters dramatically outwork Team Markey between now and June 25.

So, your job is to be sure that doesn’t happen.

we believe that on the issues that most affect the Latino community in Massachusetts, Edward Markey has shown greater commitment to the defense of them than that exhibited by the Republican candidate, Gabriel Gomez.

But buried in the Globe report on the endorsement is something that struck me as truly bizarre.

Chief editor Ana Julia Jatar said an editorial committee that also included publisher Javier Marin and associate editor Rafael Ulloa examined the candidates’ platforms and performance in the debates in deciding whom to endorse. Jatar said Markey granted an interview, while Gomez did not.

Now hold on a second there – Gomez didn’t grant an interview to the editorial board of El Planeta?  He wouldn’t even talk to them??

My goodness.  No wonder the GOP has problems reaching non-white voters.  You at least have to pretend that you care.

Watch for yourself.

David Bernstein’s take on that exchange seems right to me:

It was a mess, for many reasons—not least that he vowed to never support a change in the law, and declared his support for a change in the law, in a single 60-second answer.

But it was particularly striking to me because it was almost verbatim the exact same thing Mitt Romney said when running for governor in 2002—personally pro-life, politically pro-choice, promise to never change the law in any way. Pro-choice Bay Staters never forgave themselves for falling for it then, so it seems like a really bad idea to invoke the memory, especially while admitting that you don’t mean it.

Can’t say it enough times: our differently-winged friends at Red Mass Group were right when they declared Gomez “simply not ready for primetime.”

From: Candidate X

Subject: Breaking: “Toss up”

Date: June 5, 2013 11:48:59 AM EDT

To: blue@bluemassgroup.com

“The highly respected Cook Political Report has just changed its rating on the Massachusetts US Senate race from ‘Lean Democrat’ to ‘Toss Up.’”

– Boston Magazine, 5/30/2013

Dear Friend,

19 days out from Election Day, pundits are now calling our race a “toss up.”

The final FEC deadline of this campaign is midnight tonight. And with our race this tight, we need to make it count.

We need $50,000 by midnight tonight. We cannot miss this mark. Contribute $5 or more right now to help.

Between single digit polls and the disgusting personal attacks coming from the other side, there’s a lot we need to do to fight back. In a toss up race, our ground game makes all the difference.

We need boots on the ground, ads on the air, responses ready to go. We need to keep our staff at full force, our volunteers on the march, and it will all depend on whether or not we can afford it.

Help us blast through this $50,000 goal. Contribute whatever you can, even if it’s just $5, today.

This is the final stretch of the campaign. We have to leave everything we have out on the field.

There’s no time to sit back and watch from the sidelines — every contribution can make the difference.

Help us reach this last $50,000 FEC goal. Contribute right now.

Thank you for your support.

It’s remarkable how generic campaign fundraising has gotten, no?

And today we learn that Marco Rubio has also weighed in on Gomez’s behalf.  Rubio’s message is just as stark as the others, if not even more so.  From his email to supporters (email, no link):

We don’t have to wait until 2014 for a major victory.

In just three weeks, Republicans have a chance to take a huge step toward replacing Harry Reid with a Republican Senate Majority Leader.

The Massachusetts special election is right around the corner, and Gabriel Gomez needs our help…

I started the Reclaim America PAC to help win tough races and Reclaim a Republican majority…. Together we can see to it that Gabriel Gomez is the first victory on our drive to a GOP Senate majority.

So, there you have it, laid out with a clarity that nobody could miss.  If Gomez wins, Republicans are closer to controlling the Senate, and Mitch McConnell is closer to becoming Majority Leader.

Asked about precisely this problem, which of course will drive Massachusetts voters away from him and toward Ed Markey in droves, Gomez hilariously tried to sidestep.

Asked how he would respond to Republican pressure to join in the party’s filibusters, Gomez said he will not kowtow to anyone in Washington. “I’m not going to be in the back pocket of any group or anybody. I will be my own person,” he said.

I have no idea what that means.

Asked who he would support for Senate majority leader, Gomez said, “I’ve got to see who’s available….who is the best person to advance our country forward.”

HAHAHAHA!!  Let me help you, Gabriel.  There will be two people “available” for the job of majority leader: Harry Reid, and Mitch McConnell.  One of them is raising money hand over fist for you; the other wants you to lose.  Which one will you vote for, if you win?

So I find it interesting that national Republicans are trying aggressively to nationalize this race.  Check out this email that landed in my inbox yesterday, ostensibly from Jerry Moran.  (Who?  I had to look him up too.  The junior Senator from Kansas, as it turns out, and the current chairman of the National Republican Senatorial Committee.)

From: Senator Jerry Moran
Subject: Fire Reid
Date: May 23, 2013 12:59:54 PM EDT
To: blue@bluemassgroup.com
Reply-To: info@nrsc.org

Blue,

The Massachusetts Senate special election is heating up. This race is neck and neck, even the Democrats’ own polling shows just a few points between Republican Gabriel Gomez and Democrat Congressman Ed Markey.  We need your support to help us secure the resources necessary to win critical Senate races.

Ed Markey’s career is a living testament to failed Washington policies. Throughout his 37-year career in Washington, the Congressman has voted to raise the debt ceiling 31 times and in favor of higher taxes 271 times. He was an architect of the Wall Street bailouts. He was involved in Congressional check bouncing scandals to the total of $63,000, and he has repeatedly voted to give himself pay raises with taxpayer dollars. To sum it up, Ed Markey isn’t needed in the Senate, but new leadership is.

The son of immigrants who received an appointment to the U.S. Naval Academy, who became a decorated Navy SEAL and successful businessman, Gabriel Gomez is exactly the kind of new, results-oriented leader we need to fix Washington today.

Contribute $100, $50, $25, or whatever you can afford today to help us win on Election Day and build a new Republican majority in the Senate.

With your help, we can fire Harry Reid and put America back on course.

Thanks,

Senator Jerry Moran
Chairman, NRSC

This is a paid solicitation being sent by Brown for U.S. Senate, Inc. and is not an endorsement by Senator Brown and does not represent a contribution to any candidate or political committee. This message reflects the sole opinions and representations of the National Republican Senatorial Committee, who is responsible for the contents of this message. You are receiving this message because you are a member of Scott Brown’s online community.

A couple of points jump out at me.  The big one, of course, is “Fire Harry Reid.”  That means only one thing: the GOP sees a Gomez win as a critical part of retaking control of the U.S. Senate, removing Harry Reid from the position of majority leader, and replacing him with a Republican – presumably Mitch McConnell.  So someone needs to ask Gomez post-haste whether, if elected, he will support McConnell for majority leader.

I also love the fact that the fine print declares that the email “is a paid solicitation being sent by Brown for U.S. Senate, Inc.”  Somehow, the zombie that is Scott Brown’s Senate campaign will not die, but rather continues to stagger mindlessly around the highways and byways of Massachusetts in search of brains, or failing that, campaign donations.  I wonder if Brown or his campaign committee is making any money off of the NRSC using his mailing list?

Relatedly, Roll Call reports that the NRSC has dispatched a handful of staffers to our fair state.

The National Republican Senatorial Committee has committed at least four staffers to help nominee Gabriel Gomez in the final weeks of the June 25 contest…. Money remains a major hurdle for Gomez to overcome against the well-funded Markey. So the NRSC sent two fundraisers to help Gomez open some financial doors. Sarah Morgan, a regional political director, arrived Wednesday to organize volunteer efforts over the next few weeks. And Kevin McLaughlin, a senior adviser, is in Boston to assist with communications and general strategy.

Say, I thought Gomez was a new kind of politician who doesn’t care for the old Washington ways of doing things.  Since that’s true, I’m sure that he will promptly tell the NRSC “thanks but no thanks,” and send those DC hacks back to Washington where they belong.

Riiiiiiight.

Republican Massachusetts Senate candidate Gabriel Gomez was sued by his plumber over unpaid toilet repairs from 2007, according to court records.

According to the plaintiff, Lundy Plumbing, the case was brought in 2008 in response to two attempts to get Gomez to pay for repairs to a leaky toilet in Gomez’s home. Lundy Plumbing alleged that Gomez was billed in January of 2008 to which he did not respond. Lundy Plumbing then says they sent another bill and called several times before bringing the case.

The case was settled out of court according to court records.

Honestly, who does that?  Stated otherwise, if he can’t manage his own bills, how can we trust him with America’s?

Now, to the point of this post, which is the Globe story reporting reaction to a City of Boston report on the causes of bicycle accidents and recommendations on what to do.  Apparently, advocates for cycling are upset about the following:

In an effort to make the city safer for cyclists, police will ­begin to hand out $20 citations to cyclists who run red lights; and the mayor’s office may push for a law requiring helmet use by bike riders of all ages.  “We’re still blaming the victim,” said Dahianna Lopez, a Harvard doctoral student who worked as a consultant compiling crash data for the Boston Police Department.

Cycling advocates have objected that (1) a helmet law won’t prevent accidents; and (2) a relatively small number of accidents (12%, per the report) are directly traceable to cyclists running red lights or stop signs – by contrast, “twenty-two percent of collisions between cars and cyclists occurred when a vehicle door opened unexpectedly on a ­cyclist. Eighteen percent ­occurred when a motorist did not see a cyclist, and 12 percent occurred when a cyclist rode ­into oncoming traffic.”

Regarding point 1, I’d say the objection is true but irrelevant.  The argument for helmets is precisely the same as the argument for seat belts: it’s a common-sense safety measure that will almost certainly prevent a good number of serious and perhaps fatal head injuries, thereby reducing the number of shattered lives and also keeping medical costs down.  I find it hard to see the contrary argument.  So I think this reaction is off-base:

David Watson, executive ­director of the Massachusetts Bicycle Coalition, a statewide bike advocacy organization, said he disagrees with the conclusions of city officials on bike helmets. Forcing helmets on the heads of cyclists won’t prevent accidents, Watson said.  “We need to focus on preventing a crash in the first place, not just providing protection when they crash,” he said.

Hey, here’s an idea: why not do both?

Point 2, on ticketing cyclists who run red lights, is more complicated.  Here’s a quote from the Globe story that I think is illuminating:

[Cyclist] Ira Kemp of Arlington said that cracking down on bike riders who run red lights, an ­offense that he admitted committing on occasion, would not address one of the biggest factors in bike crashes: the behavior of motorists.

“It’s a huge cultural issue,” Kemp said. “Most motorists don’t have an ounce of respect for people on bikes.”

In my view, Mr. Kemp is both exactly right and precisely wrong.  He’s right that many motorists don’t “respect” cyclists.  That is a problem that has to change for the city to become more bike-friendly.  But he is wrong that forcing cyclists to obey traffic laws won’t have any effect on that problem.  To the contrary, motorists – including myself – get frustrated with cyclists precisely because they routinely behave like scofflaws, darting in and out of traffic, running red lights and stop signs with barely a glance toward oncoming traffic, and so forth.  Be honest, now: how often have you seen a car intentionally run a red light?  It happens now and then, but it’s pretty rare.  In contrast, cyclists do it all the time.

Respect has to be earned.  If cyclists want it, they have to behave as though they deserve it.  And that means obeying the traffic laws.  Right now, too many of them don’t do that.  So a crackdown by law enforcement – in conjunction with other efforts, to be sure, such as the ongoing expansion of the city’s bike lanes and other efforts noted in the report – strikes me as an excellent idea.

Here are a couple of the highlights – these are direct quotes from Hiller:

It isn’t clear whether Gomez broke the law, but it’s crystal clear he got a giant tax break that doesn’t pass the smell test….

Memo to Gabriel Gomez: this is not something to be proud of, if you’re running for political office.
Why?
Because it makes you look like a rich person taking advantage of tax laws very few people know about.
Because it can make voters wonder about your values and ethics.
And because it sounds like a scam, even if it’s not.

Oof. Add to that the ongoing hilarity of Gomez’s refusing to release any information about how much financial benefit this tax break gave him, and you’ve got a serious political problem brewing. Why won’t he release the information from his 2005 tax return? Because “I have nothing to hide.” Aha.

Newbie candidates like Gomez never seem to believe that the old “cover-up is worse than the crime” maxim (and no, nobody’s alleging a “crime” here, it’s just an expression so lighten up) applies to them, just like it does to everyone else. But it does. If Gomez had any sense, he would immediately (a) release the information showing how much the deduction benefited him, and (b) request that the IRS review the details of his deduction, and promise that if they found it improper, he would repay the benefit plus interest. He can afford it, and it’s the right thing to do.

Republican US Senate nominee Gabriel E. Gomez claimed a $281,500 income tax deduction in 2005 for pledging not to make any visible changes to the facade of his 112-year-old Cohasset home, a concession so valuable that it is classified as a charitable contribution under a federal law designed to protect historic homes.

But Gomez and his wife, Sarah, were already barred from making any changes to the exterior of their home under the bylaws of the local Historical Commission, raising the question as to whether their donation — the price of which is based on the loss of value in their real estate — had any monetary worth.

The Gomezes, whose 59 Highland Ave. home is located within the Cohasset Common Historic District, gave the historical easement to the National Architectural Trust, a Washington-based organization whose marketing of tax-deductible easements to homeowners has been targeted by the US Department of Justice.

Five weeks after the Gomezes claimed the deduction, the Internal Revenue Service listed programs such as this — that involve the “contribution of a historic facade easement to a tax-exempt conservation organization” — as one of its “Dirty Dozen tax scams.”

…

One specialist in conservation easement law, Scott Knott, a tax partner in The Ferraro Law Firm in Washington, D.C., said that if easements mandated by local laws are already in place, homeowners have nothing to claim as a tax deduction.

“The key is the valuation of the easement and if there is already a restriction on the property, the value is not diminished by the easement,” said Knott. “The value of any easement that has the same restriction already in place is zero.”

…

Dean Zerbe, former senior counsel for the Senate Finance Committee, who investigated abusive tax breaks, asserts the deduction for facade easements is “unconscionable” because it is almost exclusively for the “one percent…. It is wealthy people playing fast and loose.”

…

A Senate Finance Committee inquiry, which led to some reforms in 2006 in the program and tightened up procedures, prompted criticism on Capitol Hill of the nonprofit historic preservation firms that were marketing the tax deduction.

“It is very discouraging to find yet another example of snake oil salesmen misusing tax-exempt status and abusing the tax laws intended to encourage charitable giving, all for the purpose of making a fast buck,” [Republican Senator Charles] Grassley, then chairman of the Committee on Finance, said in a December 2004 press release.

Of course, the notion that someone should receive a tax deduction of nearly $300,000 for promising not to do what they can’t do anyway is absurd on its face, and that’s why the IRS targeted this particular tax scam as one of its “dirty dozen.”  And the fact that Republicans like Chuck Grassley hate this particular deduction is further evidence of how sleazy it is.

Mike Sullivan and Dan Winslow must be kicking themselves over this.

Gomez is starting out as a pretty popular candidate, with 41% of voters rating him favorably to 27% with an unfavorable opinion. Beyond having good numbers with Republicans he’s at 42/24 with independents, and actually seen narrowly positively even by Democrats at 33/32. Voters meanwhile are more divided on Markey, with 44% holding a positive view of him to 41% with a negative one. He’s at 31/50 with independents….

The good news for Markey in the poll beyond the obvious fact that he’s in the lead is that Barack Obama remains pretty popular in the state. He has a 53/41 approval rating. Obama was at only 44/43 when Brown won in 2010 and the President’s lack of popularity was a big contributor to the upset. He’s in a much better position this time around. The pool of undecided voters also sets up well for Markey- they voted for Obama by 18 points in November, 32% are liberals compared to only 25% who are conservatives, and 61% of them are women. Those are all demographics that ought to end up favorable to him in the end.

As I said a couple days after Gomez won, he will be the flavor of the week for a while, and that is IMHO almost certainly reflected in these poll numbers – particularly with Lynch voters who may need a while to shake off the primary campaign.  But make no mistake: at least at first glance, Gomez is an appealing guy and must be taken seriously.  Here’s hoping the media actually do their job, which in this case I’d say is to force the candidates to explain what they actually think about things, rather than letting them get away with the usual bromides.  If they do that, it seems unlikely to go well for Gomez.

Via Daily Kos elections/jeffmd

Here’s Daily Kos’s narrative on how things went down, via their excellent daily email digest (which you should subscribe to if you haven’t already):

Markey performed very well within his own 5th Congressional District, and other demographically similar towns in Boston’s western suburbs just outside it to both the north and south. Markey also did very well in Western Mass., the affluent North Shore towns, Cape Cod, and the islands of Nantucket and Martha’s Vineyard. Markey’s margins in some of these towns are truly eye-popping: His raw-vote lead stands at about 80,000; Cambridge accounts for 10,000 of that, and Newton and Brookline another 8,000 and 6,000, respectively.

In contrast, Lynch did very well in towns south of the city of Boston, which also largely overlap with his home district, the 8th. Markey, though, did pick off two affluent towns, Hingham and Cohasset, located in MA-08. He also narrowly carried the city of Boston: The sections of the city within MA-08 almost definitely went for Lynch but were narrowly offset by the more minority-heavy and professional areas. Other pockets of Lynch’s strength included the towns south and west of Worcester, as well as in the Merrimack Valley along the New Hampshire border.

Our findings show something of a relationship between income and Markey’s performance. Some of the more industrial cities (that are also Democratic strongholds) like Lowell and Fall River went for Lynch, and Markey only narrowly edged out a win in Worcester. There’s also fairly strong correlation here (between 0.65 and 0.70) with both the 2008 Democratic primary for president, but also, interestingly enough, the 2010 special general election between Martha Coakley and Scott Brown. Indeed, if you were to build a regression model of Markey’s performance, the 2010 special was, remarkably, a better predictor than the 2008 presidential primary.

• Newspaper endorsements don’t mean sh!t.  Everyone pretty much knew this already, but wow – what an emphatic demonstration we got yesterday.  Republican Dan Winslow absolutely ran the table on major newspaper endorsements.  He got the Globe, the Herald, the Lowell Sun, the Springfield Republican, the Fitchburg Sentinel, and the Lawrence Eagle-Tribune.  Yet he didn’t just lose the primary, he got blown out, netting only 13% in a three-way race.  And to make matters worse, this seems like the sort of election in which newspaper endorsements might actually have some influence – nobody really cares who the Globe or any other paper supports for president, but if you’re coming late to an election that you know is important (it’s a US Senate seat, after all), but that you haven’t had the time to delve into, you might place some stock in the views of what you consider to be a reasonably like-minded editorial board.  But apparently not.  In the future, if I were running an editorial board, I might save my effort.  (Of course, the BMG Kiss Of Death never goes out of style!)
• Polling works.  I keep saying this every time, and still, somebody always refuses to believe it.  But look at the results: on the Dem side, polls consistently showed Markey with a double-digit lead, and he won by 14.  And on the harder-to-predict GOP side, polls picked up Gomez’s momentum toward the end, and Suffolk’s bellwether poll (which is designed to predict results but not margins) pretty much nailed it.  Indeed, the two localities Suffolk used as bellwethers for the Republicans – Boston and Shrewsbury – reported results that were eerily close to the statewide result, suggesting that Suffolk chose well.  The actual Gomez-Sullivan-Winslow statewide result was 51-36-13; Boston went 51-34-15, and Shrewsbury went 51-38-11.  I’m not sure anyone accurately predicted the margin by which Gomez would end up winning, but going just by the polls, a Gomez win would have been the safe bet just before election day.
• The Republican wing of the Republican party is pretty small in Massachusetts.  Maybe Mike Sullivan ran a really crappy campaign compared to Gabriel Gomez; honestly, I wasn’t paying that much attention, so I can’t say for sure.  But if you’re one of the small but merrie band of social conservatives in Massachusetts, you didn’t have much choice.  Both Gomez and Winslow favor same-sex marriage; Winslow is pro-choice, while Gomez is a waffler but at least said he wasn’t planning to make restricting abortion a priority.  And of course, Gomez sent a letter to Deval Patrick claiming that he’d support the Obama agenda if Patrick appointed him to the Senate (more on that below).  Not surprisingly, RMG endorsed Sullivan, expressing serious reservations about Gomez:
  

  his sophomore run for office (he previously lost a race for Selectman in Cohasset, in which he came in last) has been painful to watch at times. Incredibly green as a candidate, and often muddled on issues (he’s pro-life, but supports abortion, for example), we question his chances in June vs. the Democrat nominee. Worse, his large donations to both Barack Obama and Alan Khazei leave us amongst many who question his loyalty to our party. Gabriel Gomez is simply not ready for primetime, or our Party Nomination.

  Actually, I can’t say I disagree with any of that. Anyway, obviously, Gomez slaughtered the field, clearing 50% in a three-way race. I gather he was the only one with any presence on television, and maybe that decided it. But of course, that will not be the case in the general, which promises to be a high-dollar affair – likely featuring the dreaded third-party ads as well, since Gomez has rejected the People’s Pledge.  It would seem that, to the extent that conventional Republican wisdom is that you have to run to the right to win a GOP primary, that’s not the case in Massachusetts.

• The Gomez Letter didn’t hurt him (much) – yet.  As noted above, Gabriel Gomez initially thought he had a quicker and easier route to the U.S. Senate than winning elections, namely, as the appointee of Governor Deval Patrick.  He made his desires known to Governor Patrick in a now-infamous letter requesting the appointment, in which among other things he said he’d back Obama’s agenda on guns and immigration.  (He later said that that’s not really what he meant.  Whatever.)  I thought that the letter might harm his candidacy with primary voters, both by making him look like a craven opportunist (which it does), and also by making him look dishonest (it does that too).  But obviously I was wrong about that – maybe some voters cared, but not enough to keep him from winning handily.  I do think, though, that the letter is a big opportunity for Ed Markey and the Dems, if they play it right.

What’d I miss?

Stay tuned … if you hear anything, drop it in the comments, and I’ll update as necessary.

UPDATE: Looks like AP may have really sh!t the bed by calling the race for Collins an hour ago.  The city’s website now has Dorcena Forry up about 300 votes with only two precincts outstanding.

FURTHER UPDATE: As PaulSimmons notes in the comments, the city now says it has 100% of precincts reporting, and shows Dorcena Forry winning:

LINDA DORCENA FORRY 10214 (47.00%)
NICK COLLINS 9836 (45.26%)
MAUREEN DAHILL 1593 (7.33%)

However, the Collins campaign has announced that they will not concede the race tonight; presumably they want some time to study the results and determine whether the ballot screw-up could have had any impact on the results.

UPDATE (Charley): Well, I was definitely not expecting Gomez to clean up like he did. This should tell us that we need to be on our game. The general election is Tuesday, June 25. The time is now to start marking off chunks of our calendars to help get out the vote.

Ed Markey is a great champion against climate change, for consumers, for the average person vs. our oligarchic politics of The-Rich-Shall-Inherit-The-Earth. He will be a terrific partner to Elizabeth Warren in the Senate — we will truly have the best Senate delegation in the US.

Let’s bring it home.

Two days after the bombings at the Boston Marathon, Ott put up this post on Scrappleface:

Boston to Terrorists: We Surrender

The City of Boston today agreed to surrender to “al Qaeda, or whoever did this” just two days after two bombs exploded near the finish line of the Boston Marathon, killing three and wounding 170.

Standing in the middle of the utterly-deserted downtown, the mayor told a few remaining journalists that he would sign terms of surrender, abdicate his office and “effectively hand the keys to the city over to the agent, or group, that has brought Boston to a standstill, and has kept us all cowering in our homes wondering what to do next.”

This would be the first time in recent memory that a U.S. city has capitulated to terrorists, and surrendered its sovereignty. But sources close to the mayor noted that Boston, the Commonwealth of Massachusetts and the American people “lack both the resources and the resolve to stand up to occasional, seemingly-random attacks.”

The official signing ceremony and transfer of power awaits the revelation of the identity of the victorious conqueror.

Ha ha, get it?  Me neither.  Here’s Ott’s parting shot:

Meanwhile, in Pakistan, the Palestinian territory, and throughout the Muslim world, mobs of cheering people chanted, “Boston has fallen, Braintree is next.”

Hilarious – get it now?  Uh, nope, I’m still in the dark too.

What is it about elected right-wingers from other states that makes them think that bombs killing and maiming people in Boston is a great time for snark?  First the loser from Arkansas, now this dude.

You can share your feelings about Mr. Ott’s post with him via email or Twitter.

Another question occurred to me that arises out of what happened a couple of days earlier: everyone knows by now that, as a result of inquiries by a “foreign government” (presumably Russia), the FBI ran a background check on the older Tsarnaev brother, Tamerlan, in 2011 – not so very long ago.  What did they do?

the FBI checked U.S. government databases and other information to look for such things as derogatory telephone communications, possible use of online sites associated with the promotion of radical activity, associations with other persons of interest, travel history and plans, and education history. The FBI also interviewed Tamerlan Tsarnaev and family members.

So the FBI had not only looked over everything they could find about this guy, they also actually talked to him and unspecified members of his family.  Heck, maybe they talked to Dzhokhar.

Anyway, my question is this: once the FBI had those pretty-good-quality shots of the Tsarnaev brothers at the Marathon, how is it possible that someone in the FBI – let’s say the people who actually interviewed Tamerlan two years ago – didn’t recognize him?  Once those photographs had been found and enhanced, shouldn’t every FBI agent – especially every agent in Boston – have been looking hard at them before they were released to the public to see if they knew the guys?  And if they did that, why didn’t someone realize that one of the guys was someone they had interviewed just a couple of years ago because a “foreign government” was worried he was becoming radicalized?  Shouldn’t people like that stay on some sort of short list, so that even if the FBI doesn’t find enough on them to act immediately (as was apparently the case with Tamerlan), they don’t have to reinvent the wheel if it later turns out that one of those guys really was bad news?

And I hate to say it, but if the FBI had realized who they were dealing with before they publicized the photos, maybe they could have simply arrested him and avoided all the insanity of the ensuing chase … including the death of Officer Sean Collier.  Because when you think about it, the two pieces of really dumb luck that led the police to realize the Tsarnaev brothers were in Watertown – the fact that the brothers showed up in video footage from a convenience store that coincidentally had just been robbed, and the fact that the guy whose SUV they carjacked left his cell phone in the car, rather than having it in his pocket – could easily not have happened, and the brothers could easily be far, far away by now.

If you live in the area, police are advising that you stay inside and away from your windows.

So far, the Globe seems to be the only news outlet claiming that one of the men in custody is a Marathon suspect.  7News is now reporting that one of the suspects is dead.  Other news outlets are saying that officials are not yet confirming a link to the Marathon.  UPDATE: 7News is now reporting that the two Watertown suspects are the Marathon suspects. FURTHER UPDATE: Suspect #2 has now been identified as Dzokhar Tsarnaev, from an area near Chechnya. He and his now-deceased brother (Suspect #1) live in Cambridge.

FURTHER UPDATE: BPD Commissioner Davis is saying that one of the suspects in tonight’s events is dead; the other remains at large and is the “white hat” Marathon suspect.

This is a rapidly-developing situation.  NECN has a live-stream going; you can also follow the developments at the Globe’s feed or on your own Twitter feed, or on the TV or radio station of your choice.

Do yourself a favor: ignore the news for the next couple of hours until things settle down.

Second: CNN’s John King has said that a law enforcement source told him that the video shows a “dark-skinned male.”  Please, folks, let’s not jump to conclusions.  King’s unnamed source might be wrong; the video enhancement might be misleading; etc. etc.  Let’s wait until more information is available.

Third: a couple of politicians have been making noises that it might be a good idea to try the alleged perpetrator(s) in some sort of military tribunal, rather than in federal court.  No thanks.  I want this trial in federal court.  I want it on TV.  I want it on a freaking Jumbotron.  I want the city, the country, and the world to watch as prosecutors lay out their case in open court, the defendant gets to present his side, and the jury makes its decision.  If we’ve got the right person, there’s nothing to be afraid of.  But if the trial happens behind closed doors, in some secret location, with nothing like the due process we afford the most heinous criminals, well, would you really be sure they had the right guy?  Seems to me that we should have confidence, and take pride, in our system of justice, as imperfect as it is.  And we should do so even – indeed, especially – in the most egregious cases.

When I speak of my love for this city, it will be understood that the love does not come filtered through a soft-focus lens. I’m fully aware of the sins that litter the Hub’s rearview.

But I do love this city…. Bostonians don’t love easy things, they love hard things — blizzards, the bleachers in Fenway Park, a good brawl over a contested parking space. Two different friends texted me the identical message yesterday: They messed with the wrong city. This wasn’t a macho sentiment. It wasn’t “Bring it on” or a similarly insipid bit of posturing. The point wasn’t how we were going to mass in the coffee shops of the South End to figure out how to retaliate. Law enforcement will take care of that, thank you. No, what a Bostonian means when he or she says “They messed with the wrong city” is “You don’t think this changes anything, do you?”

Trust me, we won’t be giving up any civil liberties to keep ourselves safe because of this. We won’t cancel next year’s marathon. We won’t drive to New Hampshire and stockpile weapons. When the authorities find the weak and terminally maladjusted culprit or culprits, we’ll roll our eyes at whatever backward ideology they embrace and move on with our lives….

The community will eulogize the dead and provide care and solace for the injured. And, no, we’ll never forget. But what we’ll cling tightest to is what the city was built on — resilience, respect and an adoration for civility and intellect.

And Stephen Colbert, voicing some similar sentiments:

Oh for God’s sake, f&cking Viacom couldn’t refrain from making a copyright claim against YouTube. Fine, here’s the Comedy Central version.

• Former Probation Commissioner John J. O’Brien was acquitted in the first of two pending cases against him.  It wasn’t even a hung jury: acquittal is a 12-0 vote (assuming it was a 12-person jury, which I think it probably was).  And it didn’t take them long – according to this story, the jury returned the verdict the same day they got the case.  In this case, which was in state court, “[p]rosecutors alleged that O’Brien used his influence to turn out attendees for a political fund-raiser for then-treasurer Timothy Cahill in exchange for a job [at the Mass. Lottery Commission] for his wife.”
  

  “We are disappointed in this verdict, and believe the evidence showed that Commissioner O’Brien traded campaign contributions for a taxpayer-funded job for his wife,” said Martha Coakley, the state’s attorney general, in a statement. “While some may believe that this type of behavior is ‘business as usual,’ we did not and do not believe that should be the case.”

  The federal case against O’Brien is still pending.

• US Supreme Court Justice Antonin Scalia seems to have lost all sense of decorum.  His comments at oral argument several weeks ago in a case about the Voting Rights Act characterizing the Act as a “racial entitlement” were bad enough.  Now, he’s repeated and expanded upon those comments in a speech in California – while the Voting Rights Act case is still pending.  He did something similar regarding another pending case too.  If there’s one rule that used to be pretty cut and dried, it’s that judges aren’t supposed to “tip their hand” in public about cases that are before them.  Apparently, though, Scalia is so bored with his job that he just doesn’t give a crap anymore.
• You probably didn’t think ex-SC Gov. Mark “hiking the Appalachian trail” Sanford, who is now running for a vacant congressional seat, could do anything stupider than what he has already done.  And yet, and yet…
  

  The complaint says Jenny Sanford confronted Sanford leaving her Sullivans Island home on Feb. 3 by a rear door, using his cell phone for a flashlight…. The couple’s 2010 divorce settlement says neither may enter the other’s home without permission…. Jenny Sanford said Tuesday that she has custody of the couple’s four boys.

  She said the complaint has nothing to do with her former husband’s efforts to rebuild his career in politics. She said it was filed with the court the day after the incident and when a family court judge last month set the case for the docket, it happened to be two days after the election.

  “I am doing my best not to get in the way of his race,” Jenny Sanford told the AP. “I want him to sink or swim on his own. For the sake of my children I’m trying my best not to get in the way, but he makes things difficult for me when he does things like trespassing.”

  Remarkable.

• California gajillionaire Tom Steyer, who seems terribly concerned about protecting the environment when it comes to a Senate election 3,000 miles from where he lives, should perhaps tend to his own garden first.  Turns out his former company – Farallon Capital Management – is a named defendant in a lawsuit in Amador County, CA that is trying to stop the construction of a 278-acre rock quarry and an asphalt plant on land now largely used by cattle ranchers.  Farallon is involved in the project as an investor in the land on which the quarry and plant would be built.  Steyer no longer runs Farallon, but he did when it made the decision to get involved.  ”The plan is for the quarry operation eventually to mine 5 million tons of rock a year from Newman Ridge, a 450-foot-tall, 2-mile-long rise. The ridge would be leveled, the Wests [who filed the lawsuit] contend, altering weather patterns as winds it once held back blow toward Ione.”  A group of area residents opposed to the project have set up a website with more information.

Did I miss anything?

The letter from the local district attorney would make anyone shudder.

It says “Official Notice — Immediate Attention Required” and comes on what appears to be official stationery, with the signature and seal of the district attorney. The sternly worded four-page letter accuses the recipient of passing a bad check in violation of Massachusetts criminal law.

“A conviction for a bad check of $250 or more is classified as Larceny with a potential jail sentence ranging up to five (5) years,” the letter warns.

Not only is the recipient told that he has to make good on the check in order to avoid a criminal record, he also needs to fork over anywhere from $120 to $235 to take a class on “financial accountability,” along with a $25 return-check fee.

But it’s all BS.

What the recipient may not realize is that the letter was not sent by a district attorney, but by a private, unlicensed debt-collection company under contract with the district attorney. That fact is either not mentioned at all or only inconspicuously disclosed.  Until recently, six of Massachusetts’ district attorneys — including Suffolk County’s Daniel Conley, a Boston mayoral candidate — were engaged in such contracts, allowing the companies to use official-looking letterhead as part of a venture that critics say blurs the lines between government and private interests.

Incredible, right?  Read the whole Globe story for the details, including the facts that the companies with which the DAs contracted are not licensed as debt collectors in Massachusetts, that some of the companies’ practices may well violate state or federal debt collection laws, and that the company with which four of the DAs were dealing filed Chapter 11 bankruptcy in 2009 and has been hit with multiple class action lawsuits.  Just the folks a DA would naturally want to authorize to use official letterhead.

Surely, now that this incredibly sleazy practice has come to light, the DAs will back off, or will at least be harshly criticized by good government types, right?

The district attorneys reiterated their belief that the programs were a legal and effective way to handle bad-check cases, but said they would seek legislation to explicitly authorize their use…. The district attorneys association declined repeated requests for a copy of the legislation they are seeking….

Scott Harshbarger, a former Massachusetts attorney general and Middlesex district attorney, defended the programs. “You’re a new DA and you come in and somebody says, ‘Look, small businesses are going to be happy with you. You’re going to divert a lot of cases out of the system.’ It’s a ‘no harm done’ program,” he said.

Attorney General Martha Coakley, another former Middlesex district attorney, actually initiated that county’s bad-check program with Corrective Solutions in 2005. Coakley, through her spokesman, declined requests for an interview.

Holy cow.  I’m honestly flabbergasted that this is legal at all, much less that Scott Harshbarger, Mr. Good Government himself, would defend it.  And the DAs won’t even release a copy of the legislation they want to see enacted?  They must be awfully proud of it.

The good news in all of this is that, per the Globe, all the DAs who had been engaged in this chicanery have temporarily backed off the program.

Last week, six months after the Globe began asking questions about the programs, which are not specifically authorized under state law, the district attorneys revealed that they had terminated or suspended their contracts with the companies over the course of the last two months…. Conley, as well as the district attorneys of Middlesex, Norfolk, and the Cape and Islands, used Corrective Solutions, a company that encountered class-action lawsuits for similar programs in other states. The Northwestern and Bristol district attorneys used BounceBack, a smaller company that employs many of the same practices.

Let’s just make clear that any legislation authorizing private parties to use the DA’s stationery to send debt collection letters should be laughed out of the State House.

Here’s my bottom line on this: I agree with EB3 that Valencia’s article misstates what actually happened.  And I also agree that Valencia’s defense of why he wrote the story the way he did is unconvincing.  Whether the error is so egregious as to justify four outraged BMG posts, I will leave for others to judge.  But Valencia should have simply corrected the story rather than mounting an entirely unconvincing defense that was dramatically undercut by a brief unsigned (“Globe Staff”) piece published two days later that managed to state the facts accurately.

By way of background, here is what actually happened in the Bulger case.  All federal cases arising in Massachusetts are randomly assigned to one of the judges in the Massachusetts district.  Judge Richard Stearns was assigned the Bulger case when it hit the docket.  That was unfortunate, because Stearns had been a high-ranking official in the Massachusetts U.S. Attorney’s office at precisely the time when that office was allegedly using Bulger as an informant, and one of Bulger’s claims is that he was the beneficiary of a blanket grant of immunity from that office.  In addition, Stearns reportedly counts FBI director Richard Mueller as a close personal friend, and Mueller might be called as a witness in the case – as might Stearns himself.

Consequently, Bulger’s attorneys repeatedly asked Judge Stearns to recuse himself from the case.  Stearns refused.  Bulger appealed Stearns’ refusal to the U.S. Court of Appeals for the First Circuit, and in an opinion authored by retired Supreme Court Justice David Souter, the Court unanimously ordered Stearns off the case.  The Court held that the answer to the question in the case – “is it clear that a reasonable person might question Judge Stearns’s ability to remain impartial in hearing the case?” – was yes.  It was a startling rebuke to Stearns – and one with which I agreed, for whatever that’s worth.

Following the Court of Appeals’ order, the case was randomly reassigned to Judge Denise Casper.  Judge Casper now has to decide whether to stick with Stearns’s pretrial rulings, or whether to reopen them – especially concerning Bulger’s immunity claim, which Stearns had rejected before being ordered off the case.

Valencia published the offending Globe story on April 9.  Here’s what he said:

Federal prosecutors have asked US District Court Judge Denise J. Casper to let stand a court decision that would prohibit James “Whitey” Bulger from raising an immunity ­defense at his long-awaited trial in June, saying Bulger’s lawyers have tried to resort to “a game of legal Whac-A-Mole.”

Bulger’s lawyers had asked Casper to vacate the decision made by US District Court Judge Richard G. Stearns, who recused himself from the case out of concern that he would have a conflict of interest in overseeing the trial.

Stearns was a prosecutor at the time that Bulger allegedly committed crimes.

In fact, however, Stearns refused to recuse himself more than once, specifically rejecting Bulger’s conflict of interest argument.  It was the Court of Appeals that accepted the conflict of interest claim, and ordered Stearns off the case.  So Valencia’s story does seem to me to be misleading, because a reader with no background in the case would have no idea from reading that story that Stearns had refused to give up the case and was subsequently ordered to do so.

This problem was called to Valencia’s attention on Twitter in the following exchange:

@mozezmahone 9 Apr
@MiltonValencia regarding the Whitey story…did Stearns recuse himself? Thought he was removed?

@MiltonValencia 9 Apr
@mozezmahone forced to recuse himself.

‏@bluemassgroup 9 Apr
@MiltonValencia @mozezmahone Worth correcting the story? Seems like major difference. 1st Cir ordering Stearns off the case was a big deal.

So Valencia is of course well aware of what actually happened.  As you can see, I asked Valencia about correcting the story, but received no reply.

Enter EB3, who somehow has access to an email exchange between Valencia and “Waldo” (as far as I know, the exchange is authentic, though I can’t prove it).  The key points of the exchange are these:

WALDO: You wrote: “Bulger’s lawyers had asked Casper to vacate the decision made by US District Court Judge Richard G. Stearns, who recused himself from the case out of concern that he would have a conflict of interest in overseeing the trial.”

Judge Stearns did not “recuse himself”; quite the opposite is true. Judge Stearns actually refused to recuse himself in two written opinions. He was removed from the case in a ruling of retired Supreme Court Justice Souter.

VALENCIA: Thanks for writing. I must say I have to disagree with you, however, but I appreciate your points.

It is true that the Appeals Court for the First Circuit granted a petition forcing Judge Stearns to recuse himself. …If your point is that I should be more elaborate for the reader to include the decision, than that’s a different discussion, but the point is the judge stepped aside. For a 250-word bulletin story on the latest Bulger filing, our goal was to be spare and to the point for the reader. Other outlets, including trade publications, have worded it the same way.

I must concur with EB3 that Valencia’s explanation here is wholly inadequate.  He’s still saying that Stearns “stepped aside,” when that’s at best misleading; the ordinary meaning of “stepped aside” does not (to me, anyway) include “being forced to step aside after refusing to do so.”  And Valencia’s argument that there wasn’t room in a 250-word story to accurately explain what happened makes no sense, because all he had to do was substitute “was removed” for “recused himself” in the bolded sentence quoted above.  Moreover, as noted above, an unsigned Globe story of similar length on the Bulger case published a couple of days later had no trouble getting the facts right:

Casper was randomly assigned the Bulger case last month after the Circuit Court of Appeals for the First Circuit ruled that US District Court Judge Richard Stearns, who was originally in charge, should step aside because he was a Department of Justice official during part of Bulger’s alleged criminal career.

So, overall, a poor job by Valencia in this matter.

Mr. Curry served five Massachusetts Governors as the Commonwealth’s Commissioner of Banks from 1990 to 1991 and from 1995 to 2003. He served as Acting Commissioner from February 1994 to June 1995. He previously served as First Deputy Commissioner and Assistant General Counsel within the Massachusetts Division of Banks. He entered state government in 1982 as an attorney with the Massachusetts’ Secretary of State’s Office.

So it’s especially appropriate that the Senator from Massachusetts should be the one trying to blow the lid off the whole wretched business and demonstrating that it’s not just the Republicans who are in the tank with the big banks.  It’s everyone.  Anyway, watch the video.  And then pat yourself on the back once again for sending Elizabeth Warren to Washington.

I can almost guarantee that you know someone — a family member, friend, or neighbor — who counts on Social Security checks to get by.

That’s why I was shocked to hear that the President’s newest budget proposal would cut $100 billion in Social Security benefits. Our Social Security system is critical to protecting middle class families, and we cannot allow it to be dismantled inch by inch.

The President’s policy proposal, known as “chained CPI,” would re-calculate the cost of living for Social Security beneficiaries. That new number won’t keep up with inflation on things like food and health care — the basics that we need to live.

In short, “chained CPI” is just a fancy way to say “cut benefits for seniors, the permanently disabled, and orphans.”

Two-thirds of seniors rely on Social Security for most of their income; one-third rely on it for at least 90% of their income. These people aren’t stashing their Social Security checks in the Cayman Islands and buying vacation homes in Aruba – they are hanging on by their fingernails to their place in the middle class.

My brothers and I grew up in an America that invested in its kids and built a strong middle class. An America that allowed millions of children to rise from poverty and establish secure lives. An America that created Social Security and Medicare so that seniors could live with dignity.

We can’t chip away at America’s middle class and break the promise we make to our seniors.

Your Senator at work.

All Republicans voted against the bill (except Rep. Vieira, who didn’t vote), though presumably for the wrong reasons.  In addition, 27 Democrats voted “no.”  Progressive Mass. reports that of those 27, 9 were members of the Progressive Caucus.  Bravi to those 9 – Reps. Andrews, Farley-Bouvier, Garballey, Hecht, Keefe, Provost, D. Rogers, Sciortino, and Sullivan – for being willing to take a tough vote against leadership but in the best interests of the Commonwealth.  (A particular “bravo” to my Rep., Sean Garballey!)  Thanks also to the other Dems who voted “no,” even though some of them may have done so for the same reasons as the Republicans.  It’s never easy to vote against leadership, especially when a possible veto is in the offing.

Did your Rep vote the way you wanted?  Let him or her know how you feel!  (Not sure who your Rep is?  Find out here.)

The bill now moves to the Senate.  And the Senate has two choices: it could pass more or less the same bill, watch the Governor veto it, and then set up a big, long negotiation that will further delay progress and further exacerbate tensions, or it could pass a better bill, send it back to the House, work out the differences, and then send the Governor a bill he is willing to sign.  To me, the latter seems like the more constructive approach.  But I’m no politician.

The House roll-call is on the flip (click for larger).

… wait for it …

flying a bunch of planes over Boston, and driving a bunch of trucks through the city streets.

No, I’m not making it up.

As the Red Sox take the field for the first time this season at Fenway Park on Monday, a plane circling nearby will drag a banner that reads “Steve Lynch for Oil Evil Empire.”  The attack … comes courtesy of Thomas F. Steyer, a billionaire California hedge-fund executive and Democrat who has chosen to bombard Lynch with theatrical attacks from the skies and from the streets. He has poured $400,000 into the Massachusetts race so far, bankrolling planes with banners, trucks with video screens, and canvassers who plan to knock on 300,000 doors statewide…. During the last several weeks, Steyer has sent a plane with a banner to fly over Boston before a Bruins game, blasting Lynch for backing “dirty oil.” He plans to send another plane with a banner to the Boston Marathon. Trucks he has dispatched have rolled through Boston displaying videos that accuse Lynch of wanting to export oil to China.

Maybe I missed the part where it says that Steyer’s planes and trucks are powered only by pixie dust and recaptured unicorn dung – if so, my mistake.  But it sure looks to me like Mr. I’m-Terribly-Worried-About-Climate-Change is sending a whole bunch of greenhouse gases and other pollutants into the air over Massachusetts that really, really don’t need to be there.

Steyer thinks he’s “the left’s answer to the Koch brothers”?  Ha.  The Koch brothers do stuff that actually works (as well as some that doesn’t) – that’s why they are a problem.  So I’m more OK with Steyer’s funding the League of Conservation Voters’ canvassing operation, since that at least might actually do something.  But this other stuff is crap, and it will backfire (as well as pollute).  Here’s the reaction of BMGer johnk – who has long been strongly in Markey’s camp – to the last Steyer brouhaha:

I even like Lynch better now.

These outside groups have no clue about Massachusetts and what people here do not like. This is an anvil around Markey’s neck. Markey’s job is now to get rid of him. The only thing that Steyer has done is give Lynch cache and free good publicity. The guy was running behind Markey with no momentum whatsoever. He best bet was something happening during a debate. This has clearly benefited Lynch.

Markey, to his credit, strongly disavowed Steyer’s tactics last time, and did so again in today’s Globe.

Flying banners over Fenway is not about Ed Markey or Steve Lynch, or about climate change – except to the extent that doing so actually contributes to it.  It’s about Tom Steyer getting his name in the paper.  Well, mission accomplished, I guess.

The thrust of her column is so obvious as to be hardly worth stating: liberals within the Democratic party are more likely to back Ed Markey than Steve Lynch.  Well, duh.  Markey is overall more liberal than Lynch; Markey has one of the best records in the entire Congress on climate change, which is important to liberals, whereas Lynch among other things has supported building the Keystone XL pipeline, which liberals hate (Lynch has recently backtracked on Keystone, but only very recently); Lynch voted against Obamacare, for the Stupak amendment, and for federal intervention in the Terri Schiavo case, while Markey did none of those things.  Vennochi tries to narrow the distance between Markey and Lynch by accepting at face value Lynch’s explanation for his Obamacare vote (“He opposed it, he said, because the legislation was flawed and ended up as a giveaway to health insurance companies. Lynch may be right on principle…”), and his weeks-old change in tone on abortion rights (“If elected to the Senate, Lynch said, he wouldn’t vote to make abortion illegal. He also pledged to oppose any Supreme Court nominee who might vote to overturn Roe v. Wade.”), while doubting the sincerity of Markey’s 30-year-old shift on abortion rights to the place where he’s been since the 1980s (“His explanation for the evolution is anything but smooth…”).  Not sure how that’s fair, but hey, politics is a rough business.

Perhaps worse, Vennochi goes way, way off the rails by drastically distorting Steve Lynch’s own words regarding who is allegedly not being fair to Lynch.  Here’s how Vennochi’s column starts:

Steve Lynch is right.

The Democrats who control his party didn’t want him to run for US Senate. And, once he defied them, the national party — aided by local enforcer John Walsh, who heads the state committee — would naturally work against his campaign to beat Ed Markey.

“They haven’t been fair,” Lynch told the Boston Herald. “. . . I think they’ve done their best to discourage people from sending me contributions from Washington.”

OK, I agree – and said as much before Lynch was even in the race – that the national party, specifically the Democratic Senatorial Campaign Committee (DSCC), shouldn’t have jumped into the primary the way they did.  But for Vennochi to claim that John Walsh is a “local enforcer” for the DSCC and has been “working against [Lynch's] campaign,” well, that just seems flat-out wrong.  Let’s look at what Lynch actually said in the Herald interview that Vennochi cites (emphasis mine):

U.S. Rep. Stephen F. Lynch, the underdog in the Democratic special Senate election, blasted national Dems for their unfair backing of his rival U.S. Rep. Edward J. Markey and for blocking donations to him….

“They haven’t been fair,” Lynch said of the national Democrats who he says have funneled donations and some union support Markey’s way. “No they haven’t been fair. I think they’ve done their best to discourage people from sending me contributions from Washington. They’ve basically said Markey’s our guy, don’t give to Lynch.”

In a wide-ranging interview with the Herald today, Lynch said he faces an uphill battle because the Democratic Senatorial Campaign Committee backed Markey.

Not a word in there about the state party, or John Walsh.  In fact, this morning Lynch’s own spokesman, Conor Yunits, specifically disowned Vennochi’s charge on Twitter:

For the record – that charge didn’t come from us. @JohnEWalshDem has been extremely fair.

I mean, Walsh is on record in Vennochi’s own paper as liking the idea of a contested primary between Markey and Lynch.  That doesn’t sound to me like someone who wants to clear the field for Markey, or for anyone else.

Later in the column, the reason for Vennochi’s distortion of Lynch’s views to include the state party becomes clear: she’s still mad about Marisa DeFranco.

A variation of this preselection process played out during the Bay State’s last Senate primary. Democratic leaders chased everyone but Elizabeth Warren out of the contest. The previous crop of would-be Democratic contenders faded quietly into that not-so-good political night — except for Marisa DeFranco, who was kept off the ballot at the state convention when she didn’t comply with party wishes.

“Didn’t comply with party wishes”?  For God’s sake, we have been over this many times.  Anyone who cares to dig into BMG’s archives will find numerous posts about the 2012 caucuses – held months before the convention, and apparently out of the Globe’s field of view – at which numerous observers reported that Elizabeth Warren had organized the crap out of them, thereby securing tons of committed delegates, while DeFranco was nowhere to be seen.  It was also widely reported that DeFranco’s speech at the convention redefined “not ready for prime time.”  Sure looks from here as though DeFranco didn’t get on the ballot because she was a weak candidate who didn’t think she had to put in the hard work of getting her ducks in a row long before the convention, and I’d respectfully suggest that Vennochi should reveal any reporting or evidence she has to the contrary.  Indeed, I think it’s disrespectful to Steve Lynch – a sitting congressman with an impressive record of vote-getting and election-winning, whatever you may think of his views – to lump him in with Marisa DeFranco.

If you strip away all that stuff, Vennochi’s basic point is so bland as to not merit writing up separately (which is perhaps why the rest of the stuff is in there):

Liberal politics dominate Democratic primary turnout and drive this race. Markey’s positions on health care and abortion rights are key to the support he’s receiving…. Markey’s backers are fighting for their definition of the soul of the Democratic party. To that end, they will pour every dollar they can into Markey’s campaign and they will work to turn out every like-minded voter.

Well, yeah.  That is pretty much how elections work, isn’t it?  It is no surprise that Democratic primary voters tend to lean left, just as Republican primary voters tend to lean right.  It also is no surprise that the activists who are deeply engaged in the primary are “work[ing] to turn out every like-minded voter.”  In fact, we should applaud that, shouldn’t we?  We should want people out there pounding the pavement, trying to generate excitement about their candidate, right?  Lynch supporters of course are doing exactly the same thing, as they should.  A 100% turnout in this special election would be something to celebrate, wouldn’t it?

So, overall, a bad column.  But nobody’s perfect.

And all this because DeLeo and Murray are afraid that the people of Massachusetts can’t stomach anything more than a three-cent increase in the gas tax (oh, and yet another buck on every pack of cigarettes), despite polls (commissioned by the Herald!!) showing the exact opposite.

Furthermore, it appears that the DeLeo/Murray plan leaves the sales tax at its current rate of 6.25%.  I argued even before Governor Patrick released his proposal that that is a bad idea.  Governor Patrick’s plan to increase the income tax, increase exemptions, and cut the sales tax is the most progressive tax proposal seen in this state in ages, and that is the direction in which we should be moving.

Charley (he and I are apparently thinking along similar lines this morning – great minds, and all that) has more on the MBTA.  Meanwhile, the Governor is not throwing in the towel just yet.

The governor, who offered restrained reactions to rejection of his tax bill so far, indicated Wednesday he will keep pushing for additional revenue and said he has been willing to negotiate with legislators over their differences. Mr. Patrick said he was still evaluating how to respond to the legislative package and would have more to say about it today.

“I have been clear publicly and with the legislative leadership that I am willing to compromise,” Mr. Patrick told reporters at the Statehouse after a meeting with a group of education advocates seeking more extended learning, early education and college aid funding from the governor’s tax proposal.

“I do think there is such a thing as too small. I think we have got to be serious about investing in ways that give us growth and investing in education and transportation do that,” the governor said. “This is a process and we will see where this process goes,” he said adding, “We are doing some analysis ourselves internally. I’m going to try to collect my thoughts and give you some comments tomorrow.”

But there was no white flag in the offing from the governor. “We are going to keep talking. It is too important to just stand back and wait for it to happen. If we want growth we have to go and get it and that is what my proposal was about,” Mr. Patrick said.

I am lucky enough to be represented by Senator Pat Jehlen, who just made the case on this very blog that the DeLeo/Murray plan is woefully inadequate, and by Rep. Sean Garballey, who also backs a more aggressive plan.  But what about your legislators?  Do you know where they stand?

Right now is the time to find out, and to let them know where YOU stand.  And by now, I mean now.  Today.  The legislature has absurdly fast-tracked this thing, apparently to the point of passing it by Monday.  One can disagree with the legislative Republicans who want to ferret out more “waste fraud and abuse” before considering taxes, while also agreeing whole-heartedly with them that there should at least be a hearing before rushing the bill to the Governor’s desk.

Call your Senator.  Call your Rep.  If you’re not sure who they are, this spiffy tool will tell you.

Why should there be only 1,825 medallions available?  I’d think that anyone who has ever tried to hail a cab in Boston would be in favor of getting more cabs on the streets.  What would be so wrong with deregulating the system by removing the artificial cap on the number of cabs in Boston?  I’m all for requiring operators to pass background checks, have safe driving records and a safe vehicle, carry adequate insurance, etc.  But why shouldn’t anyone who meets those qualifications be able to drive a cab?

It’s hard to see how the medallion system as it exists in Boston serves the interests of anyone other than the medallion owners.  Why shouldn’t it be scrapped?

In a fundraising email, Republican Senate candidate Gabriel Gomez charged that his primary opponents, Mike Sullivan and Dan Winslow, lack courage and determination.

Here is the exact quote (email, no link):

There aren’t [sic] a lack of ideas in Washington, there’s a lack of courage.

Unlike my opponents, I have the courage and determination to do what needs to be done.

So much for Ronald Reagan’s “Eleventh Commandment.” The next GOP debate should prove interesting.

“I’ve always felt that elocution was one of my strongest attributes as a politician,” Menino told reporters at a hastily-assembled press conference outside his Hyde Park home, “and the Senate is the perfect place for me to put those skills to work on the national stage.”  He added that his number one priority in the Senate will be to restore the “talking filibuster,” and that he anticipates working closely with Sen. Rand Paul (R-KY) on that issue.

Menino, who quietly switched his party affiliation from Democratic to unenrolled a few weeks ago, must submit 10,000 signatures for certification by this Wednesday, April 3, in order to qualify for the ballot.  Experts anticipate that Menino’s vaunted political machine will have no difficulty gathering the required signatures in the next couple of days.

Pundits deemed Menino’s entry into the Senate race a true game-changer – Menino’s popularity with his constituents is staggeringly high, and news of his retirement as Mayor of Boston generated national headlines and a statement from President Obama.  In contrast, the Democratic and Republican candidates in the race have apparently had a hard time generating much excitement thus far, with polls showing high levels of undecided voters on both sides.  Indeed, the media seemed largely to have lost interest in the race before Menino’s announcement.  In addition, Menino is likely to garner the vast majority of the vote in Boston, which means that the Democratic candidates will have to undertake a drastic overhaul their general election strategy.  One Democratic strategist expressed concern that Menino’s entry into the race could mean trouble for the Democrats’ chances of holding the seat – that is, if anyone had ever heard of any of the Republican candidates.

This is your debate open thread.

It’s important to understand how unusual the sequence of events in California was.  For years, CA state law had limited marriage to heterosexual couples.  Then the CA Supreme Court ruled that, under the CA Constitution, that limitation was invalid.  At that point, CA began to issue marriage licenses, and something like 18,000 same-sex CA couples got married.  Then Prop 8 passed, which undid the effect of the CA Supreme Court’s decision by amending the state constitution.  A subsequent challenge to Prop 8 in the state courts failed, but the courts refused to invalidate same-sex marriage licenses that had already been issued.  It also concluded that CA’s existing domestic partnership law, which afforded same-sex couples all the legal benefits of marriage under a different name, remained in effect.  So CA was in the very odd situation of having several thousand legally married same-sex couples, but also having a constitutional provision barring same-sex couples from marrying.

At this point, same-sex couples who wished to marry in CA, but couldn’t, filed suit in federal court, arguing that Prop 8 violated the U.S. Constitution.  None of the defendants in the case (the two county clerks who had refused the licenses, and four state officers including the Governor and Attorney General) would defend the constitutionality of Prop 8, so the court allowed some of Prop 8′s original proponents to intervene in the case in Prop 8′s defense.  The district court held a bench (non-jury) trial and ultimately concluded that Prop 8 was invalid under the US Constitution.

On appeal, the 9th Circuit Court of Appeals first asked the California Supreme Court to clarify whether Prop 8′s proponents were proper parties.  The latter court concluded that they were, and sent the case back to the 9th Circuit.  The 9th Circuit then ruled on quite narrow grounds that Prop 8 was unconstitutional.  Money quote:

Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only.  It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right – the right to obtain and use the designation of ‘marriage’ to describe their relationships.  Nothing more, nothing less.  Proposition 8 therefore could not have been enacted to advance California’s interests in childrearing or responsible procreation, for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples.  Nor did Proposition 8 have any effect on religious freedom or on parents’ rights to control their children’s education; it could not have been enacted to safeguard those liberties….

Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.  The Constitution simply does not allow for “laws of this sort.” …

We need not and do not answer the broader question [of whether same-sex couples may constitutionally be denied the right to marry under any circumstances] in this case, however, because California had already extended to committed same-sex couples both the incidents of marriage and the official designation of ‘marriage,’ and Proposition 8′s only effect was to take away that important and legally significant designation, while leaving in place all of its incidents.  This unique and strictly limited effect of Proposition 8 allows us to address the amendment’s constitutionality on narrow grounds.

Got that?  The 9th Circuit carefully limited its decision to the odd facts before it, in which (1) same-sex couples had previously had the right to get “married,” but that right had now been withdrawn; and (2) even despite that, same-sex couples still had all the legal rights incident to marriage, including the right to raise children and control their children’s education, under the state’s domestic partnership law.

So now the case arrives at the Supreme Court.  But since the state has refused to defend Prop 8, we still have the problem that the people on the other side from the couples who want to get married are some of the original proponents of Prop 8, and there are big questions as to whether those people have adequate standing to appeal a federal court judgment.  Apparently, standing was a major topic of discussion in today’s argument, and some of the conservative Justices (who seem unlikely to invalidate Prop 8 on the merits) may well want to get rid of the case on this more technical ground.

Here are some possible results:

• SCOTUS writes an opinion declaring that the Prop 8 proponents lack standing.  This would result in no decision on the merits of the constitutional claims from the Supreme Court.  It would also require that the 9th Circuit’s opinion be vacated (i.e., it would be as if that opinion were never written).  Ultimate impact: the California federal district court’s opinion remains in place, Prop 8 is held invalid, and same-sex couples in CA can get married again.  But the case has no effect beyond California.
• SCOTUS issues an order saying that the case is “dismissed as improvidently granted.”  A DIG (as it’s known in SCOTUS parlance) is a device occasionally used by the Court that essentially says “we never should have agreed to hear this case in the first place.” Most cases that are DIGged have some sort of technical problem that make the case a poor candidate for Supreme Court review such as, in this case, the lack of a proper party to defend the law being challenged, or the extremely unusual sequence of events in CA surrounding Prop 8.  The ultimate effect of DIGging the case would be to leave the 9th Circuit’s opinion standing, which would mean that it would apply not only to CA but also to AK, WA, OR, ID, MT, NV, AZ, HI, Guam, and the Northern Mariana Islands.  However, since the 9th Circuit’s opinion was so carefully limited to its unusual facts, the practical effect of this result would not be much different from the previous option: the ruling would legalize same-sex marriage in CA, but would not have much impact elsewhere.
• SCOTUS concludes that the Prop 8 proponents do have standing.  In this case, the Court would go on to decide the case on the merits.  And there are a bunch of different possible outcomes here as well:
  • SCOTUS concludes that there is no constitutional right to same-sex marriage, and Prop 8 is upheld.  This would mean that same-sex marriage remains illegal in CA, and would leave it to other states to work things out on their own.
  • SCOTUS agrees with the 9th Circuit that, given CA’s unusual circumstances, Prop 8 is invalid.  This effectively legalizes same-sex marriage in CA but not anywhere else.
  • SCOTUS concludes that the Constitution requires that same-sex couples be allowed to marry.  This invalidates Prop 8 and also legalizes same-sex marriage throughout the country.

My guess?  The Court DIGs this case, or writes an opinion dismissing it for lack of standing.  Tomorrow is the DOMA argument – fasten your seatbelts for that one.

Support the MassGOP tonight at our first fundraiser of the year w @ScottBrownMA, LG Healey and Gov Weld

Wow.  So the three big draws for the GOP’s first fundraiser of 2013 are, respectively: (1) the one who just lost a big Senate race and then shocked his party by deciding at the last minute not to run again, thereby dramatically lowering the GOP’s chances of winning the seat and leaving it scrambling to find candidates; (2) the one who got slaughtered in her last run for elective office, who also declined to run for Senate, and who just took a job that will require her to step away from partisan politics for the foreseeable future; and (3) the one who got so bored as Governor that he not only left the job early, he left the state, embarked on a bizarre series of adventures, endorsed Mitt Romney, endorsed Barack Obama, endorsed Mitt Romney again, and then ambled back to Massachusetts for reasons that remain unclear (he, too, declined to run for Senate).

One is hard-pressed to come up with a lineup that sends a clearer message along the lines of “we don’t really care whether the Massachusetts Republican Party succeeds or fails.”  Just who’d you want headlining your fundraiser … unless you were a political party in the business of trying to win elections.  Of course, whether that description accurately characterizes the Mass. GOP is open to debate.

Well, think again!  We’re pleased to announce that BMG co-editor Bob Neer’s new book “Napalm: An American Biography” is now available on Amazon and elsewhere.  It’s published by Belknap Press, which is an imprint of Harvard University Press.

Napalm, incendiary gel that sticks to skin and burns to the bone, came into the world on Valentine’s Day 1942 at a secret Harvard war research laboratory. On March 9, 1945, it created an inferno that killed over 87,500 people in Tokyo—more than died in the atomic explosions at Hiroshima or Nagasaki. It went on to incinerate sixty-four of Japan’s largest cities. The Bomb got the press, but napalm did the work.

After World War II, the incendiary held the line against communism in Greece and Korea—Napalm Day led the 1950 counter-attack from Inchon—and fought elsewhere under many flags. Americans generally applauded, until the Vietnam War. Today, napalm lives on as a pariah: a symbol of American cruelty and the misguided use of power, according to anti-war protesters in the 1960s and popular culture from Apocalypse Now to the punk band Napalm Death and British street artist Banksy. Its use by Serbia in 1994 and by the United States in Iraq in 2003 drew condemnation. United Nations delegates judged deployment against concentrations of civilians a war crime in 1980. After thirty-one years, America joined the global consensus, in 2011.

Robert Neer has written the first history of napalm, from its inaugural test on the Harvard College soccer field, to a Marine Corps plan to attack Japan with millions of bats armed with tiny napalm time bombs, to the reflections of Phan Thi Kim Phuc, a girl who knew firsthand about its power and its morality.

Today’s Globe has an interview with Bob in which he expands on some of his book’s high points.  The book is getting lots of attention, so we can look forward to hearing quite a bit more from Bob about napalm in the coming weeks.

And while I’m discussing BMG’s adventures outside the cybersphere, I cannot resist a modicum of shameless self-promotion: I am one of the featured soloists on a CD that will be released in two days (available for pre-order now) on the Naxos label entitled “Native Informant.”  The CD is a collection of works by the Arab-American composer Mohammed Fairouz.  Meanwhile, Charley has been tearing it up across the pond, serenading Londoners with his sweet lyric tenor.

If you’re interested in reading Bob’s book or listening to my CD, you can buy them through Amazon and support BMG at the same time – if you click through to Amazon using the links supplied in this post and then add the item to your cart from there, a portion of your purchase price will go to us.  (Your purchase price is the same.)  Thank you!

And the piece of legislation that Brown seems to have been most proud of, the so-called STOCK Act, was feel-good legislation that allows Congress to pat itself on the back for preventing itself from behaving badly.  It wasn’t harmful, but it didn’t create a single job or help a single Massachusetts person in need.

Compare that to Senator Elizabeth Warren’s early track record.  Of course, she has already made national headlines for her aggressive questioning of bank regulators (including some within the Obama administration) and of folks opposed to raising the minimum wage (some videos of those hearings have become YouTube sensations garnering hundreds of thousands of views; one has almost hit a million).  But you know what else she’s done?  She did this (email, no link):

The U.S. Senate today passed a bipartisan amendment introduced by Senator Elizabeth Warren (D-MA) and Senator Lisa Murkowski (R-AK) to help provide critical disaster relief funds for fishermen. The amendment was the first introduced and passed by Senator Warren since she took office in January.

Co-sponsors include Senators William “Mo” Cowan (D-MA), Mark Begich (D-AK), Charles Schumer (D-NY), Kirsten Gillibrand (D-NY), Jack Reed (D-RI), Sheldon Whitehouse (D-RI), Jeanne Shaheen (D-NH), Kelly Ayotte (R-NH), Susan Collins (R-ME), Angus King (I-ME), Thad Cochran (R-MS), Roger Wicker (R-MS), and Maria Cantwell (D-WA).

Senator Warren and Senator Murkowski merged two separate amendments to reach a bipartisan agreement that allows appropriations in the FY14 budget to be allocated to provide disaster assistance for fishermen. The funding would help support a response to the commercial fisheries failures declared by the Secretary of Commerce in 2012.

Lead sponsors: one Democrat (Warren) and one Republican.  Co-sponsors: eight Democrats, four Republicans, one independent.  And that’s an amendment that will (should it pass the House) bring desperately-needed relief to fishermen right here in Massachusetts.  That’s exactly what our Senator should be doing.

Also, earlier this month, Warren joined forces with very conservative Senators Corker (R-TN) and Vitter (R-LA) (along with Mark Warner (D-VA)) to reform Fannie Mae and Freddie Mac.

Four Senators are crossing party lines to propose a GSE [government-sponsored enterprise] reform bill that would prevent the government from using guarantee-fee hikes at Fannie Mae and Freddie Mac to cover other spending initiatives.

The proposed legislation also would prohibit the sale of GSE-preferred shares owned by the Treasury without congressional approval and the completion of GSE reform first…. The initiative shows two of the more vocal housing critics — Sens. Warren and Corker — finding consensus on GSE reform across the aisle and taking a major step in trying to curb ‘the status quo’ at Fannie Mae and Freddie Mac….

“If Treasury were to decide to sell its preferred share investment without Congress having first reformed our housing sector, we would just be returning to a time where gains are for private shareholders and losses are for taxpayers,” said Corker.

“Neither of these is an acceptable outcome, so I’m very happy that Senators Warner, Vitter and Warren have joined me in this effort, and I hope Congress will take the necessary steps to ensure housing finance reform can happen as soon as possible,” Corker added.

Needless to say, fixing Fannie and Freddie and repairing the housing market is something that will actually help people throughout the country.

Good policy isn’t necessarily bipartisan, and bipartisan policy isn’t necessarily good.  People like Scott Brown who talk about bipartisanship as an end in itself (if I only had a nickel for every time Scott Brown repeated that study claiming that he was the second most bipartisan Senator) misunderstand this fact – and, to be fair to Brown, he is hardly alone in this, since bipartisanship for its own sake is very popular among prominent local and national members of the chattering class.

Last November, Massachusetts voters had a choice between electing someone who talked about bipartisanship for its own sake rather than being in the service of getting something useful done, and someone with a clear vision of what needed to get done and was willing to work with whoever would care to join her in helping make it happen.  They chose the latter, and it’s working out well so far.  Well done, Massachusetts.

As quickly as those posts went up, someone (presumably in McDonald’s office) took them down.  And now it appears that that same someone has completely disabled the ability of people outside the Sheriff’s office to post to the page.  I guess Sheriff McDonald can dish it out, but he can’t take it.

BMGer chrismatth, who posted the original item calling attention to McDonald’s bad joke, also adds the fascinating observation that by removing these comments, McDonald might be violating the state public records law.  The Treasurer’s office says the following about its social media pages (emphasis mine):

Please note, that Records Retention Law of the Commonwealth requires the Mass.Gov portal team to preserve records created or received by a state employee. Pursuant to this retention requirement comments posted or messages received via an official state agency page on a third-party web-site (such as an official agency profile on a social network) will be treated as state governmental records and may be permanently archived.

You know the old saying that the cover-up is usually worse than the crime, right?  That might apply here.  McDonald’s joke was surely in extremely poor taste, but, as BMGer loquaciousliberal accurately points out, it was far from original and has been made about many presidents and presidential candidates in the past.  But if McDonald has violated the state public records law by deleting comments critical of his behavior on his Facebook page, well, that would be a no-no.  I’ve got a call into the Secretary of State’s office on the question of how the public records law applies in this context, and will update when I have more information.

Apparently as a direct result of that, two thirds of the leadership of “Women for Gomez” – a group that Gomez touted on his website as “his first coalition group” – has quit.  And the grassroots are pretty riled up about the whole situation, as well they might be.  Here’s RMGer Term Limits on the resignation of Angela Davis and Rachel Kemp from the Gomez operation:

This is precisely how any legitimate Republican should respond in light of what has been learned.  Now, could someone speak to the issue of the GOP heavy weights that trotted him around Washington and attempted to foist him on us?  Who were/are they, and what have they to say now?

That’s a fair question, IMHO.  And our own Porcupine chimes in:

The Gomez campaign began as a project of the brain trust that brought us Jim Ogonowski, who after sucking up all the RSCC money failed to get enough signatures to get onto the ballot.

I say no more.

Another eminently fair observation.  When the party Pooh-Bahs decide who the candidate should be, they are almost unfailingly wrong.  It took Dems a long time to learn that lesson.  Apparently the GOP hasn’t got it either.

1. “I supported President Obama in 2008.”  Standing alone (as it does in the letter), any reasonable reader would take that to mean that Gomez voted for Obama over John McCain in 2008.  However, Janet Wu reports that “an aide said Gomez was referring to a donation he made to Obama’s campaign in 2008, but that he voted for Republicans John McCain in 2008 and Mitt Romney in 2012.”  Uh huh.
2. “Two main issues that will dominate the political discussion during this appointment will be Immigration Reform and Gun Control…. I support the positions that President Obama has taken on these issues and you can be assured that I will keep my word and work on these issues as I have promised.”  Again, any reasonable reader would take that to mean that Gomez was on board with the central parts of President Obama’s proposals that would, among other things, reinstate an assault weapons ban (Obama’s support for a renewed ban was made explicit the day before Gomez sent his letter).  But, at the GOP debate the other day, Gomez declared his opposition to the ban, stating that the 1994 ban “didn’t achieve its goals” and that “I don’t believe that we need to do an assault weapons (ban).”  How do you square those two statements?  Easy, for a would-be politician who apparently has gotten quite adept at speaking out of both sides of his mouth:
   

   A Gomez aide said Wednesday that Gomez in the letter only meant he was willing to work with Obama and bring those issues to the table, but that he didn’t back a specific policy agenda supported by the president.

   Um, wow. Sorry Gabriel, but that is profoundly dishonest.  If you say you “support the positions that President Obama has taken,” then, well, you support those positions.  Unless you’re a double-talking politician.  But of course, you can’t be that, because you keep telling us you’re not.

Gomez should do himself and his party a favor and withdraw from the race now. He either tried to intentionally mislead Governor Patrick, or he is doing the same to Republican primary voters – there’s just no other way to interpret these events that I can see.  It seems that Gomez is interested in only one thing: securing a nice job for himself in Washington.  Sure sounds like a “politician” to me.

Give yourself a pat on the back – that’s the Senator you helped send to Washington.

“I believe DOMA should be reversed and the federal government should respect those states that recognize gay marriage by providing those couples with the same level of benefits,” Sullivan said in the statement, referring to the federal Defense of Marriage Act that bars federal recognition of same-sex unions.

Uh, OK … so you oppose same-sex marriage, but you think the federal government should give legally-married gay couples the same benefits that straight couples get.

Yeah, I’m confused.  I’m trying to work out how this is some sort of states-rights-trump-everything sort of position, but that breaks down pretty fast if you think it through.  Plus, that wouldn’t make much sense coming from a guy whose biggest résumé items are federal government jobs (US Attorney and acting head of ATF) – it’s not like he’s some kind of federal power skeptic.  So, I’m just confused.

Here’s the Globe, reporting on a straw poll that was held this morning at the Danversport Yacht Club:

Winslow, the winner, slipped out of the Danversport Yacht Club before the votes were tallied, to spend the afternoon campaigning on the North Shore. But before he left, he said he thought the event sent the wrong message.

Winslow was absolutely desperate to dispel any impression that he and yacht clubs have ever had anything to do with each other.

“They gave us three minutes to speak today; three minutes is longer than I ever wanted to spend in a yacht club,” Winslow said. “I am not a tea and crumpets Republican. I am here because there are activists here. I am running a grassroots campaign.”

See?  Dan’s a regular guy, just like you – he hates yachts, yacht clubs, and anything yacht-related.

Oh, except for serving as a director of the Pamet Harbor Yacht & Tennis Club, which Winslow listed on his 2011 Statement of Financial Interests.

#FAIL

Dan Winslow: well known to BMG audiences, Winslow touts more than just about anything his bipartisan-y goodness and his delight in working across the aisle – heck, he’s even willing to entertain President Obama’s plan to deal with the sequester.  He is pro-choice and favors same-sex marriage, and I think it’s fair to say that in general he is the furthest to the left of the three candidates.  Despite his work in the Romney administration, it’s not clear to me that anyone in the party apparatus is actually behind Winslow, and his website remains a placeholder so there’s no posted list of endorsements anywhere I can find.

Gabriel Gomez: Gomez is playing the outsider card.  Every chance he gets, he tells people he’s not a politician and he doesn’t even understand politician-speak.  He has an appealing bio – first-generation immigrant, Navy SEAL, successful business guy.  He says he’s personally pro-life but isn’t out to change the law, and he favors same-sex marriage.  He favors “common sense” gun control measures like universal background checks and improved mental health reporting.  He famously donated to Obama in 2008.  Party bigs Kerry Healey and Ron Kaufman are already in his corner.

Mike Sullivan: Sullivan has, as I’ve already noted, the most broad-based set of qualifications of any of the candidates.  It’s impressive that he got more signatures than the other two Republicans, even though he was the only one who didn’t pay to collect them.  Sullivan is pro-life and opposed to gay marriage; he is the only candidate running as a social conservative.  He says he is “very proud to be a Republican,” which sets him apart from Scott Brown and other MA GOP types who sometimes seem to want nothing more than for voters to forget which party they are affiliated with.  It remains unclear how he intends to focus his campaign, but I’d certainly anticipate a law-and-order emphasis given his background, and I’d also look for him to emphasize his differences with the other two GOPers on social issues.

We have, in other words, three reasonably solid candidates, each quite different from the others.  But, importantly, we have two candidates who are running more or less as liberals on social issues, and only one who is staking out the so-con position.  There is, therefore, the prospect of Republican primary voters (including the unenrolled voters who vote GOP) with liberal social views splitting their votes between Winslow and Gomez, while Sullivan gets most of the votes of the social conservatives.

The big question, then, is this: can Sullivan win by getting all the so-con GOP primary votes if Winslow and Gomez split the rest?  Are there enough social conservatives in Massachusetts for that to happen?  I’d like to know the answer to that question, and on April 30 we may well find out.

Cape and Islands Senator Dan Wolf, saying “it’s time to have an honest conversation about investing in a healthy economy, healthy communities  – and by the way, what it means to be a Democrat,” today called on state political leaders to focus on the real issue before us:

Finding the balance between a healthy economy and healthy communities, supporting a vibrant middle class that is threatened by the increasing disparity between those few at the top who have benefited most, and working families and people in need.

“As a successful entrepreneur who founded an airline nearly 30 years ago,” Wolf said, “as a business leader, and as a Democrat, I’m disappointed to hear Treasurer Steve Grossman pandering to elements in our business community who would undermine revenue reforms, rather than offering a true vision for rebuilding our communities, our working families, and our future.”

Wolf was responding to comments by Treasurer Grossman at a Greater Boston Chamber of Commerce forum a day earlier.

“Governor Patrick’s proposals may not be perfect, but let’s be clear about what they are,” said Wolf. “They allow us to invest in education, transportation, infrastructure, and our common goals. They do so without raising taxes on those who can least afford it. And they begin to address the way wealth has concentrated in fewer and fewer hands over the past 30 years, often at the expense of the middle class.

“What’s more, for Treasurer Grossman to allow the conversation to turn once again to the few people on public assistance who may be abusing EBT cards is nothing more than blaming the victims, blaming the most vulnerable, and turning us away from the real issues we face. It has absolutely nothing to do with how our communities have been undermined over the past 30 years, nothing to do with helping so many people who, through no fault of their own, have become the working poor.

“This country has two political parties,” Wolf continued. “One party aspires to represent working people, people in need, and a government that stands up for their interests. That is the Democratic Party, and that’s my party. We need to stand for our values, get that message out, and win the battle for our future.”

Seems clear that Wolf is trying to position himself as the candidate of the Democratic wing of the Democratic party, and Grossman as the DINO who is too willing to accede to the low-tax, low-regulatory-burden demands of business without taking into account the negative impact of those sorts of policies.

Verrrry interesting!

How can this be?  Did the town of Amherst really have a history of denying African-Americans or anyone else the right to vote?  Here’s the story (from an AP report published in the Globe in 1983) of how the curious inclusion of nine Massachusetts towns in the list of covered jurisdictions came to be:

Because of a quirk in US Census procedures, nine Massachusetts communities appear to discriminate in their election laws, Atty. Gen. Francis X. Bellotti says….

All nine communities have an artificially high number of students or military servicemen, who are listed in the federal census as residents of the community but continue to vote in their hometowns. As a result, less than 50 percent of the adult population of those nine towns voted in the 1968 presidential election.

The communities also used a literacy test or similar voting prerequisite at some time in the past.

Under the 1965 Voting Rights Act, communities that used a literacy test and had less than 50 percent turnout must clear any changes in their local election law ahead of time with federal officials and prove through extensive documentation that there are no unreasonable obstacles to voting.

“It is my position that Massachusetts has never maintained election practices that have the effect of denying individuals of this commonwealth access to the ballot box or the right to hold elective office on account of race or color,” Bellotti said in a written statement.

“Because the act has been applicable in these nine communities as a matter of form rather than substance, it is appropriate to seek its termination,” he said.

Needless to say, Bellotti’s suit (filed under the “bailout” provision of Voting Rights Act section 4) was successful.

Interesting, no?  I love stuff like that.  :-)

The preclearance requirement has long been hated by the right, and its invalidation would (correctly) be seen by them as a huge victory.  Nothing sticks in a wingnut’s craw more than the idea of some 20-something lawyer in the Justice Department’s Civil Rights Division preventing a state from changing its laws as it sees fit.  And, indeed, section 5 was an extraordinary and (I believe) unprecedented remedy – which, needless to say, was justified by the extraordinary lengths to which certain jurisdictions were going to deny some of their citizens the right to vote.

A couple of years back, the Supreme Court had the opportunity to rule on section 5, but it declined to do so, instead issuing an 8-1 opinion by Chief Justice Roberts that unquestionably laid down some markers for the next case (which is the one argued today) while deciding the case itself on narrower grounds.  Here are some key excerpts from that 2009 opinion:

Things have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.

These improvements are no doubt due in significant part to the Voting Rights Act itself, and stand as a monument to its success. Past success alone, however, is not adequate justification to retain the preclearance requirements.  It may be that these improvements are insufficient and that conditions continue to warrant preclearance under the Act. But the Act imposes current burdens and must be justified by current needs.

The Act also differentiates between the States, despite our historic tradition that all the States enjoy “equal sovereignty.” … [A] departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets….

The evil that §5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions. For example, the racial gap in voter registration and turnout is lower in the States originally covered by §5 than it is nationwide…. The Act’s preclearance requirements and its coverage formula raise serious constitutional questions….

That last point – that other jurisdictions may be as bad or worse than the covered jurisdictions – is an important one, and recent events such as the voter ID fiasco in Pennsylvania (among other places) are pretty good evidence in its favor.  Whether that means that section 5 should now be found unconstitutional, I am less certain.  It would be a sad irony indeed if recent voting-related shenanigans by Republicans in non-covered jurisdictions contributed to the invalidation of a key provision of the Voting Rights Act on the grounds that things suck everywhere now.

In any event, the prediction here (and in many other places) is that the Supreme Court will invalidate section 5 by a 5-4 vote in an opinion authored by Chief Justice Roberts.  When that happens, look for many of the same people who, in the wake of the Obamacare decision, were absurdly falling over themselves to declare Roberts the savior of the Court (if not the entire Republic) and the greatest statesman currently in public life, to castigate him in equally harsh terms.  To those people – I’m looking at you, Larry Tribe, Chris Matthews, Jeff Rosen, Gillian Metzger – I say this: you got snookered.  Roberts, IMHO, knew exactly what he was doing with respect to Obamacare, and it had very little to do with statesmanship or any other high-minded purpose.  It had everything to do with preserving the Court’s “political capital” for what Roberts considers to be more important battles.  Gutting the individual mandate (which, as we’ve discussed, is not really a mandate at all) was not really worth the brouhaha it would have caused.  But finally realizing a career-long dream of gutting the Voting Rights Act – now that would be worth it.

Is this important?  Yes, actually, I think it is, for a couple of reasons.  First, Mike Sullivan, as his résumé indicates, is an accomplished guy whose qualifications for the Senate can’t really be questioned (unlike the two other Republicans running).  He’s held elective office in Massachusetts, he’s been a top-level state and federal prosecutor, and he’s been the head of an important federal agency in Washington – and, interestingly, one of the reasons he could never get confirmed by the Senate as head of ATF is that he managed to piss off a lot of gun rights groups, a fact that should play pretty well here.  In fact, I think it’s fair to say that he has the most wide-ranging set of qualifications of any of the candidates in the race, of whatever party.

Second, also unlike the two other Republicans, Sullivan did not pay to gather his signatures.  It was an all-volunteer effort.  Given how late he got that effort up and running and how feeble the Mass. GOP’s infrastructure is, it’s actually fairly impressive that he seems to have pulled it off, and it bodes well for his ability to assemble a decent grassroots campaign.

Third, Sullivan is an affable guy with a gentle Boston accent.  He hasn’t forgotten how to connect with the regular folks who sent him to Beacon Hill for the first time all those years ago.  He’s sorta like Scott Brown, except with some actual accomplishments.  Don’t underestimate him.

• Dred Scott and Citizens United: As you probably know by now, Ed Markey issued a call to overturn the Supreme Court’s Citizens United decision with a constitutional amendment.  Then he elaborated:
  

  And the Constitution must be amended. The Dred Scott decision had to be repealed – we have to repeal Citizens United.

  That was, IMHO, an unwise comparison. However much one may dislike the Citizens United case, it surely does not compare to a decision that allowed actual human beings to be treated as property, and that led to a civil war.  On the other hand, it’s also not as if Markey was apologizing for slavery or anything.  Seems to me that Reverend Talbert W. Swan II, the president of the Springfield NAACP who was part of a group of clergy who met with Markey earlier the same day, got it about right:

  “I don’t think I would have compared any Supreme Court decision to the Dred Scott decision that subjugated a whole race, but I do understand the parallel between the two cases,” Swan said. “The Dred Scott ruling denied rights to human beings and made them property. The Citizens United case took property and gave it human rights. I don’t think he had an ill intent making the comparison, but it’s an ill-timed statement, with it being black History Month. I think he should probably be more sensitive to the long-standing effect slavery has had on African Americans.”

  I don’t think Markey especially helped matters by issuing a follow-up statement declaring that “[t]he Supreme Court had the horrific judgment to issue the Dred Scott decision, and people rose up to challenge it. Today we’re faced with another egregious decision that needs overturning – Citizens United.” I mean, “people rose up to challenge” Dred Scott – yeah, there was a civil war. Is that really what Markey is calling for in light of Citizens United? Surely not. I don’t believe for a moment that that is what Markey meant, but he needs to realize that every little comment he makes from now until he wins or loses this race is going to be examined under a high-powered microscope in a way that he maybe is not accustomed to.

• Scot Lehigh: Everyone’s favorite Globe pundit weighed in on Markey’s campaign today and gave it decidedly mixed reviews.  Some of what he said strikes me as fair; some, not so much.  Take this, for instance:
  

  Markey’s issues are pretty much standard progressive fare: Action on climate change. Tougher gun laws. Immigration reform, with a path to citizenship. Equal pay for women. Clean energy. Protecting abortion rights and the rights of the gay, lesbian, bisexual, and transgender communities. And passing a constitutional amendment to overturn the Supreme Court’s Citizens United decision.

  No, I don’t think that’s fair. It’s true that most Democratic candidates at least pay lip service to climate change. But Markey is a genuine leader on that issue. He doesn’t just talk about it; he means it, and that’s pretty unusual among candidates running for statewide office anywhere. There’s a reason that folks whose top issue is climate change are so excited about the possibility of a Senator Markey.

  This, on the other hand, strikes me as closer to the mark:

  Markey is an accomplished, substantive, energetic congressman with a proven record of effectiveness. But at least in the early going, he’s running a careful, bland front-runner’s campaign for the US Senate.

  And if this report from NECN is correct, the slow start that I (among others) worried about may not have speeded up all that much:

  Markey dismissed the criticism, saying he has been out all over the state, including Brockton earlier Wednesday and a stop in Lowell later that same night.

  “Over the last several days, I’ve been in Lawrence and Lynn, in Beverly, in Somerville and I am going 24 hours a day, seven days a week and I will be throughout the whole course of this campaign,” Markey says.

  But these are mostly private gatherings of key supporters and donors – which are not announced to the public or the media.

  Am I panicked?  No.  But I continue to think that Markey has been oddly slow to introduce himself to the public.  He needs to forget the endorsements of John Kerry, Vicki Kennedy, and the DSCC (who was it, again, that cared about any of that?) and run like he’s losing.  A “front-runner strategy” is almost always a terrible idea, and this race is no exception.

• Gomez hits the streets.  Republican hopeful Gabriel Gomez, like every other candidate, is in the midst of gathering the 10,000 signatures he needs to get on the ballot.  But he, along among the candidates (as far as I know), used his signature drive as an opportunity to make quite a charming video:Of course there’s not a word in there about what Gomez actually thinks about any issue, but that’s not the point – the point is to show him as a family man, a Navy SEAL, a guy who speaks fluent Spanish, a guy who is easy to talk to, a guy who enjoys pressing the flesh at Mul’s Diner, a guy who just knows he can “change Washington.”  Not all that many people will actually see this video (current views are under 7,000, according to YouTube), but I do think it’s pretty well done and gives us a clear look at the kind of campaign Gomez would like to run.  And don’t miss the pointed bit where he is actually shaking hands and getting signatures outside Fenway Park while talking about how cold it is.  No accident there, I’d say.

See the pattern?  Me neither.  Now, maybe that is in part a failing of the federal criminal code – different statutes are at issue in some of these cases.  Nonetheless, one would think that the amount of money misappropriated in a case would have some bearing on the magnitude of the punishment, yet that seems not to be the case.  McLaughlin is alleged basically to have stolen over half a million dollars, yet he is apparently going to walk in exchange for helping Ortiz try to bring down Tim Murray (several letters in today’s Globe take issue with that deal), while DiMasi, Wilkerson and (especially) Turner got years in prison for taking a lot less.  It’s still hard to articulate exactly how the allegations against O’Brien rise to the level of a federal crime, to say nothing of a crime meriting two decades in prison.  We’ve discussed the Swartz case at length.

And don’t forget the civil forfeiture case Ortiz brought against a motel owner in Tewksbury in which she tried to seize the motel based on a handful of drug transactions that had occurred on the premises over many years.  She lost that case badly after generating a good deal of national criticism (and local as well) over how she handled it.  It’s interesting that the Tewksbury case, while it was ongoing, garnered national attention from the Washington Post and other national outlets including the AP, but as far as I can tell has never been reported on or editorialized about by the Boston Globe, except for a single Metro story, written by a “correspondent” (i.e., not a staff reporter), that was published after Ortiz lost the case.  (To be fair, there was one earlier story in the “North” regional edition of the paper, which readers in Boston proper or in the West or South regions would not likely have seen.)

WBUR aired a report this morning that considers some other, lower-profile cases that have raised questions about how Ortiz is running her office.  But I think it’s fair to say that our own EB3 has been trying to call out Ortiz, along with the Globe’s evident fondness for her prior to the Swartz debacle, long before most people, including anyone in the mainstream media, were interested in hearing about it.

Anyway, Maria Stephanos recently conducted Brown’s first extended post-election interview, and she asked him about his late-night Twitter frenzy.  Here’s what he had to say:

STEPHANOS: How about that tweeting thing?

BROWN: Anyone ever hear of a pocket tweet?  Pocket dial?  It was pretty simple, you know.  I have an iPhone 5, actually, where is it – if anyone has an iPhone 5, OK?  The keys are small.  It’s very, very sensitive.  Ayla was teaching me how to obviously get on Facebook and Twitter, and there were some areas I didn’t really understand.  It was after her concert, and we were here right in the living room.  And I responded to a couple of people, and then put it in my pocket.  The next thing, I wake up, and I said…

STEPHANOS: It becomes a news story, Scott!

BROWN: It trended worldwide.  Worldwide trending, on a pocket tweet.

STEPHANOS: So you’re saying it was just a mistake?

BROWN: Well, what else would it be?  What, am I just randomly pressing numbers and throwing it out there?  It just shows you, though, as a public figure, someone is waiting for – especially because I was considering running, so it was like, “oh, haven’t heard from him,” and now allegedly I’m drunk-tweeting.  First of all, I rarely drink.  The last time I was ever drunk was at my bachelor party.  That was, what, 28 years ago?  27 years ago?  So, I guess no one has ever pocket dialed or pocket tweeted before.

Now, with all due respect to ex-Senator Brown, that is a ridiculous explanation.  You can conceivably put your phone in your pocket and then accidentally dial someone’s number (the “pocket dial”) or accidentally post a tweet; such a tweet would probably consist of a couple of nonsense characters like “asdf” that accidentally got pressed.  But sticking your phone in your pocket whereupon it accidentally types “bqhatevwr” and then posts to your Twitter account – no, that is not possible (or, more precisely, the probability of such a thing happening is vanishingly small).  And the fact that “bqhatevwr” was immediately followed up by the correctly-spelled “whatever” shows that, in fact, a “pocket tweet” is not what happened.  So, ex-Senator Brown is … embellishing, shall we say.  Gizmodo goes into more detail about how “bqhatevwr” could not possibly have been a “pocket tweet” (key condition that would have had to be met: “Scott Brown has a very bony butt”).

What really happened is almost certainly this: Brown, irked by whatever it was that “Michael,” “Bud Parsons,” and “Matt” had to say to him, decided to respond by saying “whatever” to each of them.  He hilariously mistyped that response to one of them, resulting in the now-famous “bqhatevwr” tweet (it’s unclear who he was talking to, since not only did he misspell “whatever,” he also did not include an “@” to make the tweet part of a conversation with another user), and then continued with his weird series of tweets, culminating in the grammatically-incorrect “Your brilliant Matt.”  Whether or not he was drunk, I have no idea – he says he wasn’t.  But he surely was not pocket-tweeting.

I have no idea why Brown went to so much trouble to concoct a story that obviously makes no sense.

The Lynch/Markey document is very similar to the Brown/Warren one, with one vast improvement: it includes direct mail (apparently robocalls are still not within the agreement’s scope).  Also, there is a provision whereby if a candidate who is required to make a donation fails to do so within three days, the amount doubles to 100% of the ad buy.  Five days later, the amount increases again.

Very well done of both candidates.  I trust we can expect Dan Winslow and Gabriel Gomez to sign on shortly – right Dan?

Amusingly, Gomez has hired Lenny Alcivar to run his campaign. Veterans of the 2010 races may recall that Alcivar briefly managed Charlie Baker’s campaign for Governor, until Alcivar decided that it would be a good idea to hassle Tim Cahill’s daughters on Twitter. He was fired shortly thereafter.

I do love this bit, from Gomez’s “Why I’m Running” page:

I’m not a politician, and there will be times when folks will ask me questions about the inner working of politics that I don’t know about. I’m a quick study, I’ll figure all the political jargon out, but I’m not going to adopt it. I’m not saying governance or being a Senator is easy, nor am I saying I don’t have some things to learn – I am saying I am up to the task. And let’s look in the other direction – maybe Washington has something to learn – they clearly need some new ideas and sending career politicians would be the same old same old.

That’s laying it on a bit thick, no? Reminiscent of Phil Hartman’s “Unfrozen Caveman Lawyer” sketch from Saturday Night live:

Ladies and gentlemen of the jury, I’m just a caveman…. Your world frightens and confuses me! Sometimes the honking horns of your “traffic” make me want to get out of my BMW and run off into the hills, or whatever. Sometimes when I get a message on my fax machine, I wonder, “did little demons get inside and type it?” I don’t know. My primitive mind can’t grasp these concepts. But there is one thing I do know. When a man like my client slips and falls on a sidewalk in front of a public library, then he is entitled to no less than $2 million.

To Gomez’s credit, though, at least his website has a “Why I’m Running” page, as well as a bio. Which is more than can be said for any other candidate in the race, Democratic or Republican. *sigh*

UPDATE: The snow has stopped, and the sun is even making an appearance!  We are pretty well dug out, though not planning to go anywhere even though the travel ban expires at 4 p.m.  I’d also like to take this opportunity to nominate Arthur Sicard, the guy who invented the snowblower, for the Nobel Prize.

Anyway, the same reporter relates that Dan has donated $100,000 to his campaign to get things rolling.  And they will need to roll quickly: he has less than three weeks to collect 10,000 signatures, all of which must be from registered Republicans (are there even 10,000 in the state?) or unenrolled voters.  Further, the timing of what could be one of the largest snowstorms ever to hit Massachusetts couldn’t be worse: forecasters are predicting that by Saturday, the entire state will be covered in at least a foot of snow, with possibly record-setting amounts exceeding two feet in the Boston area.  (If you’re keeping track: the highest snowfall ever recorded in Boston was 27.6 inches in February, 2003, with the famous Blizzard of 1978 in second place at 27.1 inches.)

Among other things, the possibly epic snowstorm means that Team Winslow will have that many fewer days to mount a serious signature-gathering effort.  Of course, so far he has no opposition in the primary, so maybe it won’t matter that much (if he has no primary opposition, he needs only to obtain 10,000 write-in votes on primary day to make it to the general election).

Oh, by the way, this is a really big storm.  Make sure that you and your family are ready, and try to stay off the roads Friday once the snow starts falling!

But when we got to guns at the end of our conversation, the differences were stark.  Here’s the essence of the debate; you can listen to the whole thing at this link.

Rob: An armed citizenry is the best defense against tyranny….

Me: … The notion that the American government is anything like tyranny, I’m sorry…

Rob: But it can get there.  It can get there.

Me: Rob…

Rob: And the reason it doesn’t get there is because people have guns.

Me: No, it’s not.

So the GOP is now deep into the junior varsity in terms of a statewide race.  State Rep. Dan Winslow (R-Norfolk) – a fine fellow and regular BMGer, but who is almost 100% unknown outside his state rep district and I’d wager 50% unknown even inside it – will reportedly announce tomorrow whether he will run.  A former Navy SEAL named Gabriel Gomez is reportedly considering getting in, but Gomez already has significant baggage due to his involvement with a rather questionable group called OPSEC that produced a 20-minute video questioning President Obama’s role in the Osama bin Laden operation.  He went on Hardball during the campaign and, well, let’s just say it didn’t go very well.  Perhaps most hilariously, a doctor and occasional Fox News commentator named Keith Ablow has magnanimously agreed to run – but only if the party agrees to unite around him without a primary.  Gosh, why wouldn’t the Mass. GOP take him up on such a generous offer?

Perhaps best of all, Tagg Romney is supposedly thinking about it.  But surely, the gods could not be so good to us.  UPDATE: And just like that, Tagg is out.  :D

The news of Brown’s decision not to run did not play well with those trying to digest the results of Hughes’s election.

what the hell was last night [the GOP chair election] for? 41 people voted to give him [Brown] what he wanted and the next day, he says he’s not running? WTF? I bet if there was anyone who voted for Hughes out of fear Brown wouldn’t run could have their votes back now.

To which our friend Paul Ferro (of the Marlborough Republican Town Committee) responded:

The breath of the understatement of this comment … is jaw-droppingly Epic.

I feel defeated

And it’s not because of Kirsten Hughes.

…

When I watched the chaos unfold last night over the “RG” contested ballot, my heart was broken. When [Mass GOP General Counsel] Vin DeVito looked at that room full of republican activists and defended his decision to discount that ballot, something inside of me died.

It was as if I joined this party for nothing, as if all of the apologies I accepted, all of the bridges I rebuilt, as if all of that was for absolutely nothing.

The difference between the incident in Tampa, and the feeling I have today, is that, in Tampa, I was genuinely confused for a little while. This morning, I am sincerely depressed. I am saddened. It is a unique and distinct kind of sadness.

The last time I felt this way was not on November 6th. No, the last time I experienced this feeling was on June 15th of this past summer, when I opened a letter informing me that I had been removed from the Massachusetts delegation to the Republican National Convention of 2012.

It’s getting really hard for me to defend my allegiance to this party, and that really does break my heart.

A fellow RMGer commented that “there are very many feeling exactly as Evan is feeling right now, and at many other various times in relation to this sort of treatment by the GOP.  To ignore it is to further disengage an already barely surviving party.”  Another says that he/she doesn’t know or care who is currently running the Mass. GOP, and advises that “you can lay the groundwork for a conservative/small government movement that the Massachusetts GOP should be doing (but is too lazy, fractionalized, agenda-less and otherwise f—ed up to do).”

It’s fair to say that Hughes has her work cut out for her, and that that work goes well beyond finding a plausible Senate candidate.

Nationally, today we read in the NY Times that the GOP’s big national donors are launching a concerted effort to fend off challenges to “establishment Republican candidates.”

In effect, the establishment is taking steps to fight back against Tea Party groups and other conservative organizations that have wielded significant influence in backing candidates who ultimately lost seats to Democrats in the general election.

If I were a national Republican power broker, I’d be worried too about people like Richard Mourdock, Christine O’Donnell, and Sharron Angle, all of whom lost eminently winnable races because, basically, they were not remotely ready for prime time.  And yet, Rand Paul and Ted Cruz won Senate elections, so one is hard-pressed to say that extremely conservative candidates can’t win.  And I would be really, really worried about setting up an internecine battle pitting the big-money establishment types against the grassroots, who tend to be more conservative.  Disagree with them if you want, but if the grassroots stay home, you can’t win an election.  And it seems to me that an excellent way to encourage the grassroots to stay home is to set up a big-money, Washington-based PAC to squash them with the apparent blessing of the national party.

So, whither the Republican grassroots, both here and around the country?  I don’t know … what do you think?

Middlesex District Attorney Gerard Leone tells the Herald he’s considering getting into the Democratic race for U.S. Senate, a move that could shock the party establishment and completely shake up the special election battle.

“I’m going to give it some thought,” Leone said in an interview, adding that he’s been besieged by calls from supporters urging him to get in the race — especially since former GOP Sen. Scott Brown announced yesterday he was not running.

I haven’t got time for further comment now, beyond saying that this would certainly shake up the race.

I’m mulling pulling papers on Monday as an Independent, which I changed to right after the November election!

Robinson, as you may recall, ran as a Republican against Steve Lynch several years ago.  His is already one of the more unusual stories in Massachusetts politics (who can forget “I just got in an accident“?) … certainly, his entry into this race would add another worthy chapter!

Scott Brown will not run for the U.S. Senate seat vacated by John Kerry, the Herald has learned.

“U are the first to know,” Brown texted the Herald.

Sources tell BMG that Brown added “Bqhatevwr” to the text, but that the Herald did not include that bit in its report.

That leaves Bill Weld and Richard Tisei as possibles … who else might jump in?

No, I think it’s more likely that Brown is out.  And, as I said in this promotion comment,

honestly, it’s hard to blame him – two expensive and hard-fought statewide campaigns in three years is exhausting, especially with the certainty of yet another one in 2014.

We should know shortly.

There really aren’t that many Repubs in Mass for the vote to take this long

…

massgop can’t even get vote straight on party chairman. And you wonder why ScottBrownMA lost in Nov.

…

ScottBrownMA must be looking at this messed up massgop party chair vote and thinking the private sector is looking pretty good

…

Thanks massgop for preventing me from watching 30Rock finale. You make Florida election officials look good.

Hilarious.  Also in the room was the Globe’s Stephanie Ebbert, who offered the play-by-play.

Fairly unbelievable what’s happening here in Natick at #magop meeting. A tie?

Kirsten Hughes was called the winner by one vote.

Then someone began screaming “Mr. Chairman!” and demanding to know whether there were any contested votes.

There was one contested vote, it turned out. The ballot had the initials of Rick Green, but his name was not spelled out.

They are now voting on whether to accept the contested ballot. If they do…I have no idea what happens next.

…

It has come to my attention that 2 state committee members did not vote. Why would you sit through this and not vote?

MassGOP is now counting the ballots from the second vote.

…

Kirsten Hughes, it is, by a 41-39 vote. The two silent state committee members have spoken.

Imagine if the two who didn’t vote the first time had split their votes!  Anyway, I do love the capstone of the evening, also from Ebbert’s Twitter feed:

“This was a long race even though it was the shortest one I’ve ever been involved in.” Newly named magop chairman Kirsten Hughes

I’m just not sure what to make of that.  But, in any event, Hughes is the winner, and so is Scott Brown, who reportedly was working the phones to install Hughes as Chair. I suspect this video is what put her over the top.

US Representative Stephen F. Lynch launched his campaign for US Senate by working the crowd this morning at a Springfield restaurant…. “It will be an uphill fight for me, but the fight is worth fighting. Shame on us to allow someone to clear the field, box out all the other candidates, and buy the election,” said Lynch, in an apparent reference to Markey, who has already received a number of endorsements in the race to fill the Senate seat left vacant by the departure of John F. Kerry.

“There’s a disconnect in the United States Senate. It’s a private club. I could close the gap between what’s happening on Main Street in Springfield and what’s happening in Washington,” he said at O’Brien’s Corner, an eatery that owner Brian O’Brien described as “the Irish capital of Western Massachusetts.”

He has also released a slick introductory video.

Ed Markey has his work cut out for him.

So we do indeed have ourselves a primary!  Start your engines, folks.

Also worth noting: Lynch indicated some time ago (before Markey’s announcement to that effect) that he would abide by a People’s Pledge, should he enter the race.  So the two leading Democrats are on board with that – excellent news.

That, of course, means that Kerry’s Senate seat is vacant (or will be as soon as the formalities of submitting paperwork are done).  Governor Patrick is expected to name an interim Senator tomorrow, and the special election now begins in earnest.  The dates are expected to be an April 30 primary, and a June 25 election.

I assume that we will know within a couple of days whether Ed Markey will face a primary opponent, whether it be Steve Lynch or a surprise entrant, and who, if anyone, will jump in on the other side of the aisle.

Ed Markey’s official kickoff event is this Saturday at 10 a.m. at the Malden Y – check it out if you can, and in any event, watch this space for all the latest!

Me neither.

But I read it on the interwebs, so it must be true.  This, from The Hill:

[US Senate candidate Ed Markey's] spokeswoman, Giselle Barry, indicated the campaign is building a grassroots following bigger than the one that boosted [Elizabeth] Warren to a win.

“Rep. Markey is building the strongest grassroots campaign Massachusetts has ever seen. Already, we have support from the environmental community, small businesses and many others who work every day with the people whose issues matter most in this race,” she said in an email.

Huh.  See, if Markey really were putting together the biggest grassroots campaign in MA history, you’d think that actual grassroots people who want to help would have a clue how to get involved.  You’d think that the easiest way of communicating at least basic information to a lot of grassroots types – a website – would be up and running.  Heck, you’d think that grassroots people who went to the trouble of signing up for emails from said website might have received, you know, an email.

And yet, none of that has come to pass.  So if Markey is indeed rolling out the biggest grassroots operation in MA history, he is doing it on the QT.  As of now, his campaign is so quiet that nobody can hear it.  Endorsements from a couple of interest groups and a bunch of elected officials are all great, but they do not – repeat, do not – constitute a grassroots campaign.

Yes, yes, I know.  Kerry is not confirmed as Secretary of State yet, so technically the seat is not yet open.  Well, he will be confirmed tomorrow, and maybe tomorrow everything will change.  Maybe we really will experience the “strongest grassroots campaign Massachusetts has ever seen” … starting tomorrow.

Tomorrow, like the song says: you’re always a day away.

Because at about 1 a.m. this morning, that’s what Scott Brown tweeted out of his campaign Twitter account.  There have been tons of hilarious responses – perusing the #Bqhatevwr search on Twitter is good for lots of laughs.  One of the best comes from Boston’s own Hillary Chabot:

With all due respect, it’s not the Kennedy seat. It’s the #bqhatevwr seat

Nobody really knows what the heck Brown was tweeting about, or if it was even Brown himself, or what accounted for his truly epic misspelling of “whatever.”  Unsurprisingly, he has not commented publicly, and he has now deleted the tweets.  Fortunately, numerous Twitterers took screenshots of the peculiar sequence, including yours truly.

US Representative Stephen F. Lynch plans to announce next week that he will challenge his congressional colleague Edward J. Markey for the Democratic nomination in the special US Senate election to fill John F. Kerry’s seat, according to people with direct knowledge of his decision.

Good.  No coasting (and please, no more of this).  Whoever serves as US Senator should earn it.

UPDATE: Well, as you know and as Charley mentioned in his promotion comment, it looks like someone in Lynch’s camp jumped the gun.  ”US Representative Stephen F. Lynch told the Globe this afternoon that he hasn’t yet made up his mind about running for the US Senate in the special election to fill John F. Kerry’s seat.”  Still, I’m sticking with my view that a primary would on balance be a good thing.

Lt. Gov. Timothy P. Murray will not run for governor in 2014, citing the demands of campaigning, serving in elected office and his desire to spend more time with his wife and two young daughters.

“I’ve decided that I am not going to run for governor,” the former Worcester mayor told the Telegram & Gazette this morning, ending speculation among many and hope among his supporters that he would try to succeed Gov. Deval L. Patrick next year.

Whatever the reasons, that sounds like a final decision, and it throws 2014 wide open.  Among other things, it opens up the backing of the sitting Governor, who would have backed Murray in a contested primary.

“If he chose to be a candidate, I was with him. He was my candidate. I’ve seen him in action. I’ve seen his intellect and heart, and I hope his time will come,” Mr. Patrick said.

So.  Steve Grossman is almost certainly in; today’s announcement makes his entry into the race even more likely.  Don Berwick said he was interested, and maybe he’s more interested now.  State Senator Dan Wolf also made noises of interest.  Martha Coakley, Mike Capuano, and Bill Galvin seem perpetually interested.  Carmen Ortiz already said she wasn’t running; the Swartz debacle makes that certain.

Who’s your candidate?

That is all great news, and hearty congratulations are due all around.  Today, Ortiz, Davis, and others got a big and well-deserved front-page Globe story out of the arrests (not the Herald, though, which is more worried about stirring up anti-tax fervor).  That kind of thing – the kind of thing that makes people’s lives better – is exactly what law enforcement, including the US Attorney’s office, should be focusing their attentions on.

And yet, if you turn to the Metro section, or the Editorial page, the continuing fallout from the tragic death of Aaron Swartz continues to dog Ortiz.  Metro columnist Kevin Cullen points out that, last week,

prosecutors from Ortiz’s office stood in a Boston courtroom and allowed a former state representative named ­Stephen “Stat” Smith to plead guilty to a misdemeanor for rigging absentee ballots in three elections. Swartz’s lawyers asked for the same consideration, that Swartz be ­allowed to plead guilty to a misdemeanor. Prosecutors refused.

So, given that Ortiz will not explain herself, we’ll just have to presume she believes that illegally manipulating the outcome of elections, which are the essence of our democracy, is less serious an ­offense than downloading an online archive of obscure academic articles.

Also on page 1 of Metro, a news story reports on the fact that, at the very press conference in which Ortiz announced the drug arrests noted above, reporters were more interested in talking about Aaron Swartz.  Ortiz reportedly “became emotional” in discussing Swartz’s suicide while at the same time declaring that the case was “reasonably and appropriately ­handled,” and that she “support[s] the process that was done here.”  Even worse for Ortiz, the Globe’s editorial page – generally a fan of Ortiz – rather than lauding her success against Boston’s street gangs, loudly declared that Ortiz “went way, way too far,” and urged Congress to “reassess the legal statutes that make such eye-popping prison sentences possible in murky cases of unauthorized computer use.”

Elsewhere in the news, Peter Gelzinis at the Herald noted that “[w]hat began as a victory dance for Carmen Ortiz yesterday afternoon ended with tears welling in the U.S. attorney’s eyes as she choked off a press conference with a caustic: ‘Does anyone else have any questions, because if not, I’m done.’”  And former federal judge Nancy Gertner really tore into Ortiz on WBUR, questioning not only the Swartz case but the practices of the office generally:

“What happens with the press, you don’t talk about the cases which really reflect this kind of poor judgment. You talk only about the cases that succeed,” Gertner said. “This is the example of bad judgment I saw too often.”

When asked if she was referring to the bad judgement of Carmen Ortiz, Gertner responded, “That’s right.”

Gertner is unusually outspoken for a former judge; still, that kind of thing is pretty rare.

And while we’re here, it’s important to note that the “deal” Ortiz reportedly offered Swartz – pleading guilty to felony charges in exchange for a recommendation of a 6-month prison sentence – was no guarantee of a 6-month sentence.  As Ortiz acknowledged in her first statement on the matter, “[u]ltimately, any sentence imposed would have been up to the judge.”  So even if Swartz took the deal, he was still potentially looking at a very long time in prison.

Those who say Swartz’s conduct fit the statutes and therefore he was charged appropriately are, IMHO, missing the point.  First, just because a defendant can be charged in a certain way does not necessarily mean that he should be so charged – that, I take it, is Ernie’s point in this post, with which I basically agree.  Second, Orin Kerr (a very knowledgeable guy on this area of law), who indeed wrote that Swartz’s conduct fit the statute, wrote in a subsequent post the following:

I think it’s important to realize that what happened in the Swartz case happens it lots and lots of federal criminal cases. Yes, the prosecutors tried to force a plea deal by scaring the defendant with arguments that he would be locked away for a long time if he was convicted at trial. Yes, the prosecutors filed a superseding indictment designed to scare Swartz even more in to pleading guilty (it actually had no effect on the likely sentence, but it’s a powerful scare tactic). Yes, the prosecutors insisted on jail time and a felony conviction as part of a plea. But it is not particularly surprising for federal prosecutors to use those tactics…. If you want to end these tactics, don’t just complain about the Swartz case. Don’t just complain when the defendant happens to be a brilliant guy who went to Stanford and hangs out with Larry Lessig. Instead, complain that this is business as usual in federal criminal cases around the country — mostly with defendants who no one has ever heard of and who get locked up for years without anyone else much caring….

[Also,] the Swartz case does point to a serious problem with the Computer Fraud and Abuse Act…. Felony liability under the statute is triggered much too easily. The law needs to draw a distinction between low-level crimes and more serious crimes, and current law does so poorly.

The argument, stated otherwise, is that federal prosecutors routinely run up huge, scary indictments against defendants, not because it’s appropriate, but because the statutes allow them to, which gives prosecutors immense leverage in plea deals.  That’s really, really ugly.  And it appears to be exactly what happened in the Swartz case.

I think it’s fair to say that any political career that Carmen Ortiz may have been contemplating is, as Margery Eagan wrote yesterday, “done. Finished. Forever linked to bringing the full and frightening weight of the federal government down upon a 26-year-old computer genius — and a suicide risk.”  Perhaps Ortiz could overcome that eventually, but it will take many many years for her to do so.

• cut the sales tax from 6.25% back not just to 5%, as I advocated two months ago, but to 4.5%, and “dedicate all the proceeds to a public works fund … sales tax proceeds would be off limits for any other purpose.”
• increase the income tax from 5.3% to 6.25% – and, “to make that increase fair to all according to their ability to pay,”
• double the personal exemptions, and eliminate some itemized deductions.

As Patrick says in his address, “there is no good time to raise taxes.”  But Patrick is right: we are in desperate need of transportation improvements, and persistent disparities in education are simply not acceptable.

Especially given the artificial constraints that wrong-headed court decisions have placed us under in Massachusetts, this is a pretty good stab at a truly progressive tax reform.  So, well done, Governor.  We look forward to the details, and to a thoughtful and respectful debate.

The Democrat party – the gentleman John Walsh, who chairs their party, and his union thugs – have created quite an organization.

Outrageous, right?  Apparently, all the behind-the-scenes work getting Democratic candidates to coordinate their voter ID efforts, the epic door-knocking campaigns, the GOTV operations, and all the rest of the stuff that actually worked (and that even Republicans, in more reflective moments, acknowledge that they need to emulate if they are to succeed) had nothing to do with winning.  It was the “union thugs” that made it happen.  I don’t even know what that is supposed to mean beyond the usual GOP demonization of working people.

Anyway, since Green’s comment is a patently ridiculous and inflammatory accusation, and since Rep. Dan Winslow (R-Norfolk) had previously “enthusiastically endorsed” Green to head the Mass. GOP, and since we know Winslow to be a reasonable sort, I asked Winslow about Green’s comments.  What transpired can be read in its entirety on Twitter; here is the main part of the back and forth:

BMG: still waiting to hear whether you agree with Rick Green that the secret to @JohnEWalshDem’s success is “union thugs”

Winslow: Do you concede that there any ANY thugs in #mapoli–people who use/threaten violence or advocate violence?

BMG: Like Kerry Healey’s orange jumpsuit guys? Come on Dan, you can do better than that. Answer the question.

Winslow: Like “blood on streets” or “blood & teeth on floor”? All bad. GOP or Dem I condemn all violence in politics.

BMG: What a pathetic dodge. Green claimed that @JohnEWalshDem relies on “union thugs” to win elex. Do you agree?

Winslow: Not a dodge. First want to agree on underlying premise of discussion. You agree there ANY thugs in #mapoli

BMG: Not playing that game. It’s a yes or no question: is Green correct in saying that @JohnEWalshDem relies on “union thugs” to win?

That was pretty much the end of it.  Winslow simply would not say whether he agreed or disagreed with Green’s statement.

There was one brief moment later when I thought we might make progress.  Another user had chimed in that maybe we had a definitional problem – maybe to Green, every union member is a “union thug,” so that any union participation in GOTV efforts would by definition involve “union thugs.”  So I asked Dan whether that was the case.

BMG: Maybe we can clear this up. Dan: do you use “union thug” as synonym for “union member”? Or does “thug” require more?

Winslow: I use “thug” to refer to someone who uses violence or intimidation or threats in politics. Hurts democracy. You?

BMG: At least we agree on that. Back to original question: is Green right re @JohnEWalshDem and “union thugs”?

After that, crickets.  Winslow has tweeted several times since then, but never addressed what is, in fact, a simple yes or no question.

The bottom line is this: I asked Winslow several times whether he agreed with Green’s comment.  He refused to answer.  From that, I think it’s fair to say that at the very least, he does not disavow it.

From someone who professes to value working together, civility, and civil discourse, I find that to be disappointing.

IN THIS CORNER … Scott Brown’s hand-picked choice: Kirsten Hughes.  Hughes was a mid-level staffer on Brown’s failed Senate campaign, and is also a sitting Quincy city councillor.  She recorded a video in which she outlines her qualifications and vision for the job of chair. Unfortunately, she misspelled “enthusiasm” in the video, detracting somewhat from the professional polish she’s trying to convey. UPDATE: that error was apparently deemed bad enough that the video has since been taken private; only this screenshot survives in the public domain. Hughes has since re-released the video without the misspelled words; you can see it at this link.

And yet, despite the misspelling, that video is a lot better than the first version she recorded, which is just embarrassing, yet for some reason remains visible on YouTube. UPDATE: I found version 1 earlier today on Hughes’s YouTube channel. Version 1 has since been taken down, but fortunately BMG’s super-high-tech video replicator (a/k/a my cell phone) got it first.

Brown has strongly endorsed Hughes, yet many elected officials (including some closely linked to Brown such as Rep. Dan Winslow (R-Norfolk)) and State Committee members have endorsed Hughes’s opponent, suggesting that Brown holds little influence within the party despite his high name recognition and approval ratings.

AND IN THIS CORNER … Rick Green, a businessman and head of the Mass. Fiscal Alliance (whatever that means). Green recently appeared on Jeff Kuhner’s show on WRKO, and pulled off what many would consider impossible: he made Kuhner sound like the reasonable one in the conversation. Check out this rant from the beginning of the segment – entirely unprovoked by any question from Kuhner.

Wow – “union thugs.” And the “Democrat party.” Talk about sticking to the bad ol’ Republican playbook of demonizing working people and blaming others for your own problems. Amazing – the more that strategy fails, the more committed people like Green seem to be to trying it again. Hey, knock yourself out, Rick – as long as you guys stick with the failed strategies of the past, you make our job much easier. UPDATE: I asked Dan Winslow via Twitter whether, since he has endorsed Green, he also endorsed Green’s “union thug” theory of Democratic superiority in Massachusetts. So far no reply, despite Winslow’s usually swift Twitter response time, but I’m sure he’s been very busy of late. You can read our back-and-forth at this link; basically, Dan has refused to answer the question.

So, those are your choices. It’s going to be close – as of now, Green’s and Hughes’s endorsement pages show an exact 28-28 tie among the listed State Committee members. If you had a vote, which one would you pick?

And yet, Markey’s campaign website remains a placeholder two weeks after he announced – the only two things it does are let you sign up for emails, and contribute money.  I signed up for emails when the site went live, but I haven’t gotten any since New Year’s Day when he belatedly told his email list that he was running (the news hit the papers on Dec. 27), and asked for a donation to meet his goal of 500 donors by Friday the 4th.  (Did he make it?)  And I’m not aware that Markey has taken any other steps toward actually, you know, campaigning.  Did I miss something?

And today, we read the following in National Journal:

For now, the only Democrat officially running is the delegation’s dean, Rep. Edward Markey, whose campaign is being guided by well-seasoned advisers including John Martilla (who held a senior role in Joe Biden’s 1972 Senate election), Larry Rasky (Jimmy Carter’s deputy campaign press secretary in 1980), and Chuck Campion (a special assistant to Vice President Walter Mondale).

Wow.  When was the last time one of those guys was actively involved in a hard-fought campaign – much less one that was a winner?  Chuck Campion was a senior staffer for Mondale in 1984.  Larry Rasky is an ex-Markey staffer who also worked for Joe Biden’s 1988 and 2008 presidential campaigns.  And John Marttila is also an old Biden guy; his website reports that he “managed strategy and advertising for Biden’s upset victory” in – wait for it – 1972.  He also was apparently an “informal adviser” to Deval Patrick’s 2006 campaign, but was not deeply involved.

Let’s just say that that’s not a lineup that inspires a great deal of confidence that Markey is assembling a team equipped to run a state-of-the-art grassroots operation of the kind that recent progressive winners in MA have found to be effective.

I like Ed Markey, as I’ve said before (though I’m not as ready as Charley to declare that he’s the guy).  But he hasn’t had to run in a seriously contested election for many, many years, and that lineup of advisers suggests to me that he may not be entirely in tune with what has worked well in Massachusetts recently (or, worse, that he may not be up to it or interested in doing it).  And, just as a reminder, a poll taken in mid-December shows Scott Brown still holding astronomical (58/28) fav/unfav ratings despite his recent crappy campaign and loss to Elizabeth Warren, and shows him beating Markey by a whopping 48-30, probably in large part because 60% of MA voters either have never heard of Markey, or have heard of him but have no particular opinion about him.  Assuming that Scott Brown runs, I don’t think we can count on him to run as lousy a campaign as he ran against Warren.   And if he doesn’t, the Democrat will really have to win it, rather than hoping that Brown loses it.  (To be clear: overall I think Warren ran a very good campaign.  But Brown assuredly helped her out.)

Don’t get me wrong, I think Markey could win.  But he’s got a lot of work to do before he gets there, and he needs the right philosophy and the right team in place to do it.  So far, I can’t say I’m impressed.

In a notice published Wednesday [Jan. 2, 2013] in the Federal Register, the National Institutes of Health said that after “careful consideration” it has concluded that Boston University’s National Emerging Infectious Diseases Laboratories, which will work with some of the world’s deadliest germs, “poses minimal risk to the community surrounding the facility.” …

Opponents said federal regulators’ final report did little to assuage their concerns that officials have thoroughly considered health risks in such a densely populated neighborhood…. “We still believe there are gaps in the assessment,” said Mina S. Makarious, an attorney at Anderson & Kreiger, a Cambridge law firm representing South End neighbors who have sued to block the lab.

I have thought for years, going back to the very early days of BMG, that building this kind of “Level 4″ research laboratory in the South End made very little sense.  When the report on which this final assessment is based came out a few months ago, criminologist James Alan Fox found its approach to dealing with potential disasters to be unpersuasive:

[T]he coverage of so-called “malevolent acts” is questionable, at best, having been grounded in unsupported assumptions concerning the likelihood of such misdeeds…. No one can say with any degree of certainty whether “they will come,”– whether launching Level 4 research activities will be irresistibly attractive to intruders or insiders wishing to create havoc by releasing pathogens into a highly congested area. BU scientists may wish to experiment with dangerous biological agents, but they shouldn’t experiment with the safety and well-being of the millions who live or work in the surrounding area.

A research lab devoted to the most dangerous of viruses does not belong in Boston, or any urban area. Maybe they should move it to that isolated ballpark in Iowa — a “Field of Nightmares.” After all, the old time ballplayers there are already dead.

Well, we are a big step closer to seeing that lab become fully operational, though pending state and federal lawsuits must still be resolved.  I will simply restate a question I asked eight years ago (yes, BMG has been around for eight years): “If someone were proposing a level 4 research facility for super-scary biological agents in, say, the Harvard biolabs outside of Harvard Square, do you think this ever would have happened?”

But of course, Jacoby is exactly wrong.  The point of the Pledge wasn’t to guarantee that everyone would abide by the Marquess of Queensberry rules, or that the race wouldn’t be expensive.  The point, rather, was to force the candidates to own their garbage – and that is exactly what happened.  Scott Brown chose (inexplicably) to base his campaign on the notion that Elizabeth Warren was an untrustworthy liar, rather than on any positive view of what he might actually want to do in the Senate.  But because of the pledge, Brown had to make that case himself rather than having Karl Rove do it for him.  He tried his darnedest to make his case stick, but his ads kept getting debunked, and he kept being goaded into saying stupider and stupider things, until finally the people of Massachusetts realized that Brown wasn’t quite as likable as maybe they thought he was.

So I submit that, contra Jacoby, the Pledge worked beautifully in two ways (almost a year ago, Jacoby opined that “there is not the slightest chance the deal will actually keep independent ads off the airwaves or the Internet between now and November’s election,” but of course he was wrong about that too).  It spared us the onslaught of third-party TV ads that voters in other states had to suffer through, and it forced the candidates to decide exactly what case they wanted to make to the voters, both positive and negative, because nobody else was going to make it for them.  As a result, we learned a lot about both candidates, and, IMHO, we made the right decision.

Of course, Jacoby is right that “[s]ince the candidates hadn’t included direct mail, printed flyers, and door-to-door drives in their pledge, political groups right and left were using those options to besiege voters with negative messages and incendiary images.”  I’d add robocalls to that list.  But that surely is not an argument against the idea of the Pledge; it is, rather, an argument for expanding it to include those obnoxious items as well.  If a bit of water seeps through a leak in a dike, the solution isn’t to blow up the dike; the solution is to fix the leak.

Jacoby’s final point is this:

The “People’s Pledge” was never legally binding on the people and groups it was intended to stifle. But in spirit it was arrogant and antidemocratic, an affront to the marketplace of ideas.

Rubbish.  Jacoby gives away the store by his first sentence, in which he concedes that the Pledge did not have (and could not possibly have had) any legal force vis-a-vis the third parties at which it was aimed.  If Karl Rove, or the League of Conservation Voters, wanted to drop a few million bucks into TV attack ads against Warren or Brown, they always remained entirely free to do so.  They just had to do it with the knowledge that their action would carry negative consequences for the candidate they were trying to help.

Frankly, I doubt that the reason Rove et al. stayed out of the race was the financial penalties to which Brown and Warren agreed – after all, even in paying the penalty, a candidate would have essentially gotten a 50% discount on advertising against the other candidate (since, under the Pledge, the penalty was 50% of the value of the ad buy), which is a pretty good deal.  Rather, I think the groups stayed out because in this race, unlike any other in the country, both candidates sent a genuine and unmistakable message that they really did not want those groups to advertise in the race, preferring instead to make their case on their own.

Candidates routinely say that they’d rather third-party groups stay away, but usually they don’t mean it.  In this case, they meant it, and the groups respected their wishes.  And, importantly, the groups didn’t have to respect the candidates’ wishes; they chose to respect their wishes.  Nothing “antidemocratic” about that.

1. To vote.  This was especially important after Senator Kennedy’s death, since the balance of power in the Senate at the time was such that the existence or non-existence of a vacancy in the MA delegation could have meant the difference between 59 and 60 votes on the president’s health care bill (among others potentially subject to filibuster).
2. To keep the machinery of the office running until the winner of the special election arrives.  Under Senate rules, an office must be closed if it is vacant for 60 days; an interim prevents this from happening and can keep constituent services and other routine (though important) business running smoothly.
3. To advocate effectively within the Senate on matters important to Massachusetts and the nation.  The argument here is, essentially, “this is what Senators are supposed to do, so an interim as well as a regular Senator should do it.”

Reason 1, though obviously important, is frankly pretty easy: anyone left-leaning person reasonably up to speed on the issues of the day could do it in a manner that most Dems would find acceptable.  Furthermore, unlike in 2009, the current balance of power in the Senate (55-45 for the Dems) is such that the MA interim’s vote is unlikely to be the deciding one (though it’s certainly possible if the stars lined up in an unusual way).  There is no shortage of people who could readily carry out this part of the job.

Reason 2 is something that anyone with some basic management experience could handle.  A Senate office is not very large, and one assumes that the interim will keep in place most if not all of the current staffers.  They all know their jobs, and there’s a chief of staff to help the interim understand how the place works.  So, again, reason 2 doesn’t help us narrow down the field of potential appointments very far.

But reason 3 is a different matter.  The Senate operates largely on seniority, and the interim will be no. 100 in a group of 100, so exercising influence will be difficult.  In addition, as I said in this very long thread,

[the Senate] is weird; it operates on a bizarre and arcane set of rules and customs; someone new to the Hill simply cannot master them in time to get anything substantial done in 4 months.

To me, those considerations drastically narrow down the number of good candidates for the job.  Regardless of how smart someone without congressional experience is, regardless of how exceptional their accomplishments in other fields, regardless even of how much knowledge they may have that bears directly on important issues before the Senate, their lack of seniority coupled with their lack of familiarity with the Senate’s operation will make it nearly impossible for them to be truly effective during their short stint in the Senate.  Consider our last interim, Paul Kirk.  He knew a lot of the players personally, and although he had never held federal office, he had more familiarity with the ways of Washington than most people do.  But did he accomplish anything beyond reasons 1 and 2?  Not that I can recall … he gave a floor speech backing a public option in the health care bill, but he was obviously unsuccessful in making that happen, and I don’t remember anything else of note from his tenure (perhaps I’ve forgotten something – feel free to remind me).

The only person I can think of who has any chance of overcoming the built-in weaknesses of the interim spot, and who is also a plausible candidate for the job, is Barney Frank.  The reasons are fairly obvious (does anyone know how the Hill works better than he does?), and have been stated by many including me in this thread.  Furthermore, though it’s usually impossible to forecast when particular big issues will come before the Senate, in this case we know that big “fiscal cliff” issues (debt ceiling, sequester, etc.) will be front-and-center during the time that the interim will be in office (assuming Kerry is confirmed quickly, as everyone expects).  Frank’s many years of service on the House Financial Services Committee make him uniquely qualified to work on those issues, and to exercise outsized influence for an interim.  Frank could also provide invaluable support and guidance to the person who will by then be our senior Senator, Elizabeth Warren, and the two of them would be a truly formidable team when it comes to financial issues.  Warren herself seems enamored of the idea, and her views should certainly be taken into account.

I understand and respect the desire of Doug Rubin and others to bring “new talent and ideas to the Congress.”  Indeed, I heartily support that goal under the right circumstances (Elizabeth Warren being Exhibit A).  I just don’t think the interim post is an appropriate circumstance, for the reasons I’ve already stated.  The “talent and ideas” that most candidates would bring to that job, however exceptional on their own merits, will simply not get any traction in a five-month interim appointment, given the nature of the Senate.  So, for me, Barney Frank is the obvious choice.  It may be that nobody can be truly effective in that job, given the institutional constraints under which the interim will necessarily operate.  But if anyone can do it, I’d think he’d be the guy.

Of course, there are other reasons to appoint someone interim Senator.  ”Senator” is a lovely honorific that would serve as a fine capstone to a distinguished career in another field; the job is a nice reward for exemplary and loyal service; and it’s a relatively high-profile gig that could be used to enhance someone’s prominence, thereby perhaps helping them win a different office down the road.  But none of those reasons strikes me as particularly attuned to what’s best for the people of Massachusetts, so I don’t think they should be given much if any weight in deciding who should be our next Senator for five months.

Brown claims that the People’s Pledge was his idea, and whether or not that’s actually true, he absolutely deserves credit for agreeing to it, and for sticking to it even when he started slipping in the polls.  A lot of people thought the Pledge wouldn’t hold up when the going got tough for one of the candidates, but it did.  Even in running a generally lousy and ultimately failed campaign, Brown did accomplish one very important and positive thing by taking concrete and successful action to keep many millions of dollars of third-party attack ads out of Massachusetts in the last cycle.

If Brown decides to run again, but won’t agree to a similar pledge this time, it would look like an admission of weakness.  Which, in fact, is exactly what it would be.  He would be saying, in effect, “I realize now that I can’t win without the help of Karl Rove and the other guys who would have dumped gajillions of dollars into my race if only I had let them.  So this time around, bring it on!”

But that only weakens Brown if the Democratic nominee does the right thing.  So how about it, Ed, Mike, Steve, Ben, and whoever else might get in?  Let’s have all the Democrats commit that they’ll sign on to a People’s Pledge – hopefully revised to eliminate the robocall and direct mail loopholes – if the GOP candidate will do the same.  Massachusetts voters can be trusted to make their choice based on what the candidates themselves have to say.  They don’t need Karl Rove & Co. (or, for that matter, outside groups that are more Dem-friendly) to tell them what to think.

Anyway, to my knowledge, the two major candidates for the post are Kirsten Hughes, a Quincy city councillor and former Scott Brown mid-level campaign staffer whose candidacy Brown has enthusiastically endorsed, and Rick Green, a business owner and GOP state committee member who also runs an outfit called the “Massachusetts Fiscal Alliance.”

Interestingly, Brown’s endorsement of Hughes appears to having almost zero impact among the GOP’s elected officials.  Green has just announced a number of endorsements from Republican elected officials, whereas Hughes’s sole endorsement from a sitting elected official (aside from Brown, who won’t be sitting for long) is State Senator Richard Ross.  Even more interestingly, one of Green’s endorsements is noted BMGer Rep. Dan Winslow (R-Norfolk), who served as Brown’s chief campaign counsel and who was advertising Brown as a headliner at his fundraiser just a couple of weeks ago.  Et tu, Dan?

It would seem that the state’s most prominent elected Republican and “de facto leader of this party” doesn’t hold much sway over his less famous colleagues.

Negative reaction to the NRA’s comments is pouring in.  There’s something in it for everyone to hate – even small-government conservatives were surely taken aback by the proposal for many millions of federal dollars spent on new guns for “retired police, active, Reserve, and retired military, security professionals, certified firefighters, security professionals, rescue personnel.”  And, as many have already pointed out, there were two armed guards in Columbine High School who tried to stop the shooters.  They failed.

Representative Chris Murphy (D-CT), who represents Newtown in the House and who will soon be sworn in as Connecticut’s next Senator, had this to say, and he’s exactly right:

He called it “the most revolting, tone-deaf statement” he’s heard.

“While Newtown continues the horrifying work of burying twenty children and six adults, the NRA has the gall to say that the solution to this problem is more, not fewer guns.

“The NRA has now made itself completely irrelevant to the national conversation about preventing gun violence, by saying that the answer to the tragedy in Newtown is to put more deadly semi-automatic assault weapons on the streets and into our schools.”

Also worth a read is the New York Times’ editorial:

we were stunned by [NRA executive VP Wayne] LaPierre’s mendacious, delusional, almost deranged rant.

Mr. LaPierre looked wild-eyed at times as he said the killing was the fault of the media, songwriters and singers and the people who listen to them, movie and TV scriptwriters and the people who watch their work, advocates of gun control, video game makers and video game players.

The N.R.A., which devotes itself to destroying compromise on guns, is blameless. So are unscrupulous and unlicensed dealers who sell guns to criminals, and gun makers who bankroll Mr. LaPierre so he can help them peddle ever-more-lethal, ever-more-efficient products, and politicians who kill even modest controls over guns.

One imagines that the Members of Congress who for years have been cowed by the NRA’s supposed prowess in the electoral realm are today shaking their heads and thinking, “geez, these are the guys we were all so scared of?”  As Alec MacGillis at TNR writes:

this was the first time many in Washington and across the country had actually focused squarely on him and his organization in a long time, and this newfound focus, combined with the post-Newtown context in which LaPierre was speaking, was enough to make the NRA seem utterly, surreally amateurish and out of touch.

Here’s hoping that the country will, at long last, stop listening to LaPierre’s rantings and instead start listening to Tom Menino, Michael Bloomberg, and others in positions of actual responsibility who have to deal with gun violence.

UPDATE: Dang, check out the New York tabloids telling it like it is.  Why can’t the Herald do it right?

Senator Scott Brown has reversed his position after the massacre at a Connecticut elementary school and now says he supports a federal assault weapons ban.

“What happened in Newtown where those children were subject to that level of violence is beyond my comprehension,” Brown said in an interview today with the Springfield Republican newspaper. “As a state legislator in Massachusetts I supported an assault weapons ban thinking other states would follow suit. But unfortunately, they have not and innocent people are being killed. As a result, I support a federal assault weapons ban, perhaps like the legislation we have in Massachusetts.”

Brown had long said he opposed any new federal restrictions on guns and believed the issue was best left up to the states. He reiterated his opposition to tighter federal gun laws after previous attacks at an Aurora, Colo., movie theater and at US Representative Gabrielle Giffords’s meet-and-greet with constituents in Tucson, Ariz.

“I’m not in favor of doing any additional federal regulations relating to any type of weapons or federal gun changes,” Brown told the Globe shortly after the Tucson attack last year. “I feel it should be left up to the states.”

First, let’s state the obvious: Senator Brown is, for whatever reason, now on the correct side of this issue, and bravo to him for getting there.  We need all the votes we can get, and it’s heartening to see Republicans as well as conservative Democrats being willing to reconsider previously-held positions.

Now, it must also be said that it’s difficult to take Brown’s explanation at face value.  He cannot possibly have seriously thought that the best way to get assault weapons banned across the country was to have relatively liberal states like MA enact state-level bans and then figure that conservative, much more pro-gun states would follow suit.  Obviously, that was never going to happen.  So there’s something else afoot here.  Maybe it’s as simple as seeing Newtown as a game-changer that demands federal action; maybe it’s more complicated with considerations of a possible Senate race playing a role.  But whatever got Brown to where he is now on this issue, it’s an improvement over where he was before, and that’s a good thing.

But that’s exactly the point, isn’t it?  You never know what peculiar string of circumstances will come together in precisely the wrong way to lead to a horrific event like Newtown.  So what is foreseeable – and I think perhaps this is Bob’s point, if I may be so bold – is that if weapons designed to kill many people quickly and efficiently (and that’s what these weapons are) are readily available and legal for private individuals to own, then inevitably they will fall into the hands of people who really shouldn’t have them.  And when that happens, very bad things result.  It’s nearly impossible to predict exactly which person will be next to act in the way that the Newtown shooter or the guy in Tucson or Aurora did, or which school or movie theatre or mall will be next, but the easy availability of powerful weapons like those used in Newtown, Tucson, Aurora, and elsewhere makes it far more likely that something like what happened there will happen somewhere else.

In other words, this is all about probabilities.  There are a lot of people in this country, and it’s not possible to predict which one is going to be the next one to want to go on a shooting rampage, nor is there any way to determine which school, mall, theatre, or other location will be hit next.  So what we should do is take whatever steps we can to make it less likely (a) that people ever get to that stage (i.e., improve mental health services); (b) that people who do reach that stage have access to dangerous weapons (i.e., make them illegal for private ownership); and (c) that such people who somehow get a hold of a weapon can squeeze off a lot of shots in a row (i.e., ban large clips and certain types of ammunition).  I’m sure there are many more steps along these lines that could be taken.

As President Obama said last night in his superb speech (which you should watch if you haven’t already), no step we can take will guarantee that the events in Newtown or elsewhere wouldn’t have happened.  That’s certainly true of the steps I suggested.  But they would, I’m pretty confident, make such events less likely.  Indeed, the fact that CT’s gun laws prevented the Newtown shooter from buying a weapon did, in fact, make it less likely that he could do what he did.  Unfortunately, he had another option because his mother owned a lot of guns – but perhaps the next guy like him won’t have that option, and so that guy won’t be able to shoot up a school.  And, of course, if semiautomatic weapons had been illegal when the mother was gun-shopping, she wouldn’t have bought them, which would have removed that option as well, further decreasing the likelihood that Newtown could have happened at all, or that it would be as bad as it in fact was.

It’s about probabilities.  So that, it seems to me, is where we should start.

Many people spoke Friday of praying for Newtown and of holding their children tight. Both of those acts are important. But let’s not leave it at that.

It is time for the majority to take on and win this debate, in the names of all the victims who ought to be alive, in the names of the children who went to school Friday but didn’t go home.

Vennochi:

In the aftermath of the Sandy Hook horror, Obama said he and his wife, Michelle, would do what parents across America will do — hug our children, tell them we love them, and remind them how deeply we love each other.

If that’s the best we can do for Sofia Lebinski [a child who survived the shooting] and the children of America, it’s not nearly enough.

President Obama has done some good things for this country, but dealing with gun violence has sadly not been among them.  That has to change, and it has to change now.  What to do?  Well, the latest reports indicate that the shooter killed his mother and then took three semiautomatic guns that belonged to her – purchased legally, as far as we know – to the school.  Bob is right that “crazy people” shouldn’t have access to weapons.  But we should go further, IMHO – more restrictions on mentally ill people buying weapons apparently wouldn’t have had any effect on what happened in Newtown.  Nobody outside of the military and law enforcement needs to be able to buy the guns that were used yesterday.  We need the assault weapons ban back, and there’s a bunch of ammunition that should be banned as well.  That won’t solve all the problems, but it would be a start.

Let your representative in Congress know what you think.  Let Senators Brown and Kerry, and Senator-elect Warren, know.  And tell the President while you’re at it.  They work for you, not for the NRA.

Meanwhile, stories of incredible heroism are emerging from accounts of the horror inside that school.  Both the school’s principal, Dawn Hochsprung, and one of its teachers, Vicki Soto, died yesterday in the course of trying to protect the students in their care from harm.  More such stories may well yet emerge.

Sandy Hook Elementary School Principal Dawn Hochsprung

Town officials in Connecticut say the principal who died in the rampage at an elementary school was killed while lunging at the gunman as she tried to overtake him.

Dawn Hochsprung was gunned down in Friday’s massacre in Newtown. Board of Education chairwoman Debbie Liedlien says administrators were coming out of a meeting when the gunman forced his way into the school and ran toward him.

Attorney General Coakley should let this one go.  I don’t know enough about the new law under which he was prosecuted to say anything about it in general, but this wasn’t a good case.  A possible five years in prison for running TV ads touting the lottery out of … the lottery’s advertising budget?  Sorry, but I don’t see it.

The bigger question here, of course, is whether the “physical presence” test makes any sense in this age of online retailing.  The test derives from a slew of confusing and at times contradictory Supreme Court cases going back well over half a century that attempted to deal, first, with traveling salesmen, then with the question of transporting goods made out-of-state, then with mail-order businesses, and most recently (1992) with the dramatic increase in mail-order businesses over the last time the Court had faced the issue (1967).  Through that morass of cases has emerged the following “bright-line rule”: there is

a safe harbor for vendors “whose only connection with customers in the [taxing] State is by common carrier or the United States mail.” …[S]uch vendors are free from state imposed duties to collect sales and use taxes.

The basis of that rule is the so-called “dormant Commerce Clause,” that is, the judge-made rule that the Commerce Clause not only authorizes Congress to regulate interstate commerce, but also by negative implication disables states from burdening it.

Now, of course, online retailing has created a new “connection with customers” that none of the previous cases could have foreseen.  Unlike mail-order houses, which targeted customers by mailing catalogues to some residents of a state, an online retailer makes its entire inventory readily available to every resident of a state that has access to the internet.

I would not be embarrassed to argue in court that, despite the “bright-line rule” of current Supreme Court cases, an online retailer with no “physical presence” in a state but with a website to which virtually every resident of a state has access may constitutionally be compelled to collect and remit sales tax on purchases made by that state’s residents.  And perhaps Massachusetts or some other state will bring that case against Amazon or some other online retailer.

But the much better solution is for Congress to solve this problem once and for all by authorizing states to collect sales tax on online purchases.  The dormant Commerce Clause cases are unusual in that they are both constitutional (as opposed to statutory) but also subject to congressional revision.  As the Supreme Court has noted,

No matter how we evaluate the burdens that use taxes impose on interstate commerce, Congress remains free to disagree with our conclusions…. Congress is now free to decide whether, when, and to what extent the States may burden interstate mail order concerns with a duty to collect use taxes.

The proliferation of online retailers like Amazon has created a real problem for states.  Many billions of dollars of sales transactions are now conducted in a manner that was inconceivable only a few years ago, and because of a legal doctrine that has failed to keep up with advances in technology, they are conducted free of sales tax, costing states a staggering amount of money.  Of course, the online exemption from sales tax has also proven extremely troublesome for “brick and mortar” retailers, who, because they must collect sales tax, are in effect selling the same products for more money – rarely a winning competitive strategy.  Congress could solve this problem simply by giving states permission to do what they have always done: apply their sales tax to stuff that their residents buy.  It’s high time Congress did so.

Also, you never know who is going to show up as the special celebrity narrator of “‘Twas the Night Before Christmas” – yesterday it was State Auditor Suzanne Bump.

This is good news on both fronts, IMHO.  Certainly, the Senate will be a better place without DeMint, whose extreme brand of wingnuttery did much to enhance the Senate’s dysfunction – the NYT reports that “[p]rivately, so as not to inflame him, several Republicans also said Mr. DeMint’s departure would produce few tears among them.”  But this development should also make it clear to those journalists who in the past have looked to the Heritage Foundation for the “respectable” conservative side of things that they really should look elsewhere.

It’s also good news for DeMint.

The job switch should have substantial financial benefits for Mr. DeMint, whose 2010 net worth, $65,000, was among the lowest in the Senate. Edwin J. Feulner, the current head of the foundation, in 2010 earned $1,098,612 in total compensation.

Say no more!

Third, it promises some truly superb committee hearings, if past experience is any guide.  Pass the popcorn.  :)

I’m pretty sure that’s not the whole story.  What I think actually happened is that, in 1915, the people adopted Article 44 as a way of clamping down on tax avoidance schemes that were crippling the Commonwealth’s ability to enforce its tax laws and hence costing it a lot of money.  Unfortunately, some of Article 44′s wording is on the opaque side, so inevitably it ended up in the Supreme Judicial Court.  When it did, in 1921, the SJC relied on the Lochner era’s then-popular but now discredited understanding of the nature of contracts and property to rule that earned income was “income derived from property.”  And, because Article 44 requires that the tax rates on income derived from property must be uniform, it follows that we can’t have a graduated income tax.

In my view, this result was intended neither by the people who drafted Article 44, nor, most likely, by the people who voted for it at the ballot box.  Article 44, correctly understood, simply says nothing at all about a graduated income tax – doesn’t require it, but surely doesn’t bar it either.  So it wasn’t the people who drafted or voted for Article 44 who prevented us from having a graduated income tax.  Rather, it was five misguided Justices of the Supreme Judicial Court.  The constitutional doctrine on which they relied, which was the centerpiece of the period now known as the Lochner era, has long since been relegated to the dustbin of history.  But its detritus remains in the form of a judicial mistake that to this day hampers our ability to have a progressive tax structure in Massachusetts.

Details on the flip. #longreads

Let’s start, as always with inquiries like this one, with the text of the provision at issue.  Here it is, in full.

Full power and authority are hereby given and granted to the general court to impose and levy a tax on income in the manner hereinafter provided. Such tax may be at different rates upon income derived from different classes of property, but shall be levied at a uniform rate throughout the commonwealth upon incomes derived from the same class of property. The general court may tax income not derived from property at a lower rate than income derived from property, and may grant reasonable exemptions and abatements. Any class of property the income from which is taxed under the provisions of this article may be exempted from the imposition and levying of proportional and reasonable assessments, rates and taxes as at present authorized by the constitution. This article shall not be construed to limit the power of the general court to impose and levy reasonable duties and excises.

The key sentences are the second and third, which talk about income “derived from property” and “not derived from property.”  Here’s the crux of the matter: if earned income (by which we normally mean salaries and wages) is “income derived from property,” then it must be taxed at a uniform rate.  But if it’s not, then Article 44 places no restriction on how it may be taxed.

So, is a salary “income derived from property”?  Not in what I would take to be the ordinary meaning of those words.  ”Income derived from property” seems to me most naturally to apply to, for example, rents obtained from real estate, or dividends obtained from stocks, or gains realized by selling something whose value has increased over time, or other means by which one generates cash from something that one owns.  But one has to get pretty esoteric to stretch “income derived from property” to include a salary or a wage.

Unfortunately, that is exactly what the SJC did in 1921.  In a case called Raymer v. Tax Commissioner, helpfully called to my attention by BMGer Hester Prynne, a Harvard professor, one George Raymer, complained that his salary from Harvard was being taxed at a higher rate than income derived from annuities – unquestionably “income derived from property.”  Raymer argued that his salary was not “income derived from property,” and therefore that under the language of Article 44 (which says that “the general court may tax income not derived from property at a lower rate than income derived from property”), the tax on his salary was unconstitutional.

The SJC rejected Raymer’s argument by concluding that Raymer’s salary was “income derived from property.”  What sort of “property” might that be, you might well ask?  Here’s the SJC’s reasoning:

“Property” is a word of large import. It has been interpreted as including the right to make contracts for labor and for personal service. Decisions to that effect had been rendered by courts of the highest authority before the adoption of the Forty-fourth Amendment. It was said in Coppage v. Kansas, 236 U. S. 1, at page 14 (affirming earlier decisions in this particular), “Included in the right of personal liberty and the right of private property partaking of the nature of each – is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment, by which labor and other services are exchanged for money or other forms of property.” This was but a redeclaration of the principle of Adair v. United States, 208 U. S. 161. Cases to this point are collected and reviewed, in Bogni v. Perotti, 224 Mass. 152, 154, 155, where the same conclusion was reached. It is not open to question that contracts for labor and service are “property” within the meaning of that word in both the Federal and State Constitutions, and as such they are entitled to the protection of the numerous guarantees thereby afforded. It would be a strained and unnatural construction to hold that that which was “property” for the purposes of the protections afforded by the Constitution was not “property” for the purposes of the taxation of income “derived from property” authorized by an amendment to this same instrument.

Got that?  What the SJC is saying here is that a contract by which one agrees to perform some sort of labor in exchange for being paid is “property,” and therefore that the income you derive from that contract is “income derived from property.”

The lawyers and legal historians out there have probably just heard a loud bell going off in their heads.  Why?  Because the notion that a contract for labor or service in exchange for money is a form of “property” is a key feature of the Lochner line of U.S. Supreme Court cases.  That notorious line of cases held that, because contracts of that kind were “property,” state or federal regulations designed to protect workers – e.g., that limited the number of hours a baker could work, or that barred railroads or other employers from firing workers for joining a union – were unconstitutional because they impinged on both the employers’ and the employees’ constitutional right to enter into whatever contract they wished.  Thus, they violated the 14th Amendment’s guarantee that the government may not deprive individuals of life, liberty, or property without due process of law.

The SJC’s Raymer opinion is singularly unconvincing for a couple of reasons.  First, the Lochner line of cases was repudiated by the Supreme Court in 1934, and today nobody takes seriously the notion that there is a constitutional right to enter into contracts free of any state oversight.  One can’t expect the SJC to have anticipated a doctrinal shift that was at that point 20 years in the future, but at the same time, one might have expected the SJC to think for itself rather than adopt wholesale an unconvincing line of cases that were decided in a context quite different than that presented in Raymer.

Second, and perhaps more damningly, the SJC’s adoption of Lochner-style views on contracts rendered an important clause of Article 44 almost entirely meaningless.  The third sentence of Article 44 says that “[t]he general court may tax income not derived from property at a lower rate than income derived from property.”  Thus, the drafters of Article 44 thought that “income not derived from property” was an important enough species of “income” that it warranted special constitutional treatment.

But under the rule of Raymer, what sort of income would qualify as “income not derived from property”?  If every contract designed to generate some sort of income is “property” – and that’s basically what Raymer says – one is hard-pressed to come up with anything at all that would qualify.  Our resident tax whiz, power wheels, suggested that inter vivos gifts or money found in the street would qualify, and that’s fair enough.  But it’s hard to imagine that those trivial sources of income were deemed sufficiently important to receive a special constitutional provision.  Rather, one imagines that the drafters of Article 44 had something significant in mind when carving out a special rule for “income not derived from property,” and the most obvious candidate would be earned income.  It’s a cardinal rule of judging that one is supposed to avoid interpretations that render portions of the text being interpreted meaningless, yet that is precisely what the Raymer Court did.

The SJC itself has acknowledged this problem.  In a footnote to a 1981 Opinion of the Justices, the Justices observed as follows (emphasis mine):

The third sentence of art. 44 provides that the General Court may tax “income not derived from property” at a lower rate than “income derived from property.” This may have been intended to allow for a lower rate of taxation for earned income. See P. Nichols, Taxation in Massachusetts 471 (3d ed. 1938). But in Raymer v. Tax Comm’r, 239 Mass. 410, 413 (1921), the court held that the salary of a university professor was “income derived from property” within the meaning of art. 44, making the significance of the third sentence of the amendment unclear. What is important for our purposes here, however, is that it is generally agreed that the requirement of uniform rates of taxation in art. 44 applies to both earned and unearned income.

The Justices in that opinion had evidently not been asked, and thus were not prepared, to reconsider Raymer‘s interpretation of Article 44.  But I find it interesting that they went out of their way to point out its obvious deficiencies.

From all of this, it is clear to me that the Raymer Court’s interpretation of Article 44 was an unfortunate by-product of a misguided and now-discarded legal doctrine, and that earned income should never have been deemed to be “income derived from property.”  But what about the uniformity requirement for “income derived from property” – is there a good explanation for that, absent any consideration about a graduated income tax?

Yes there is – a very good explanation, actually.  I talked about this a bit in my last post on this general topic.  To summarize briefly, the original state Constitution conferred upon the state and municipalities the power to tax, as long as the taxes were “proportional.”  To again quote from Justice Cordy, who explored this question in a 2004 opinion, this rule

was repeatedly construed to require that municipalities (the principal collectors of taxes levied at the time) must apply a single rate of taxation to the total value of the property of all taxpayers in their respective communities, thereby ensuring that each taxpayer paid a share of the municipal burden proportional to his share of the wealth in the municipality.  While each municipality could apply a different rate of taxation on property in its community, the rate applied was required to be uniform for all property throughout that municipality.

The problems began when wealth, which previously had generally taken fairly tangible and thus easily-assessed forms (such as land), began increasingly to assume intangible, easily-moved and -concealed forms (such as stocks and bonds).  That development made it much easier for wealthy Massachusetts residents to move their assets from municipalities with higher tax rates and more efficient tax collectors (generally the large cities like Boston) to those with lower rates and less effective collectors, or to find ways of shielding them from municipal collectors all together.  It seems to have been an early 20th-century equivalent of sheltering your assets in the Cayman Islands.  According to a 1938 book on the subject (as quoted by Justice Cordy), this practice led to “hardly a fifth of the personal property in the commonwealth” being properly taxed.

So along comes Article 44.  And it solves this problem in one fell swoop: by (a) explicitly conferring on the state legislature the power to tax income of any sort, and (b) requiring that income derived from any particular class of property must be taxed at the same rate “throughout the commonwealth,” the drafters seem clearly to have been intending to end the practice of moving assets (“property”) around the state to obtain more favorable tax treatment.  The use of the phrase “throughout the commonwealth,” which seems mainly to be geographical, supports the interpretation that Article 44 was, essentially, a response to the increasingly creative and agressive use within Massachusetts of what we would now call tax shelters.

Now, what about the fact that the drafters of Article 44 apparently considered and rejected a version that would have expressly adopted some sort of graduated income tax?  I agree that that’s interesting, and I would like to know more about it.  In particular, I would like to know whether the rejected proposal involved graduated rates on earned income, or “income not derived from property,” or whether it focused on “income derived from property.”  If the focus was on “income derived from property” (and frankly I suspect that’s the case), then it’s simply not relevant to a discussion of whether Article 44 says anything about a graduated income tax on earned income.  And even if not, we still are faced with the fact – and I believe it is a fact, the SJC’s unfortunate mistake notwithstanding – that Article 44 simply does not say anything about a graduated income tax on earned income.  It doesn’t impose it, but it doesn’t bar it either.  It seems to me entirely reasonable to conclude that the drafters chose to leave to subsequent legislatures the decision whether or not to adopt such a tax structure.

Law geek that I am, I cannot resist making one further observation: Oliver Wendell Holmes is generally acknowledged to be one of the greatest Justices ever to sit on the Supreme Court of the United States.  Before he got that job, he was Chief Justice of the Supreme Judicial Court of Massachusetts.  Holmes dissented vigorously from the Lochner line of cases, including from the Coppage and Adair decisions upon which the Raymer Court unfortunately relied.  So the folks sitting on the Court that Holmes used to lead relied on cases that Holmes himself had rejected.  And in one of those cases (Coppage), Holmes looked back home, citing a couple of dissenting opinions he had authored on the SJC, and stating that “I still entertain the opinions expressed by me in Massachusetts.”  Sometimes, when you’re right, you’re right, even though nobody agrees with you at the time.  Good for Holmes for sticking to his guns for all those years.

So, where does all of this leave us?  Is it worth asking the SJC to reconsider Raymer?  Maybe … but it also must be acknowledged that Raymer has been the settled interpretation of Article 44 for a long time, and that in a couple of instances the people have been asked to change it via a ballot question, and they have declined the invitation.  Ninety years later, it does not seem unreasonable to conclude that, even if the original interpretation was wrong, it’s now generally understood, and it should be the people rather than the judiciary that makes a change.

Still, I think it’s worth understanding that the SJC’s original interpretation of Article 44 really was incorrect.  It was a result of the SJC’s unfortunate decision to apply an incredibly activist and anti-progressive line of Supreme Court cases, that have long since been abandoned, in a context where they simply made no sense.  Anyone who wants to argue that a flat income tax is good policy is free to do so, but in my view, they must do so without the history of Article 44′s genesis on their side.

Full power and authority are hereby given and granted to the general court to impose and levy a tax on income in the manner hereinafter provided. Such tax may be at different rates upon income derived from different classes of property, but shall be levied at a uniform rate throughout the commonwealth upon incomes derived from the same class of property. The general court may tax income not derived from property at a lower rate than income derived from property, and may grant reasonable exemptions and abatements.

I got into a modest back-and-forth on Twitter with Rep. Dan Winslow (R-Norfolk) as to why Article 44 is in the Constitution in the first place.  Dan’s thesis, apparently, is that a graduated income tax constitutes “divide/conquer of electorate based on income,” and was barred because Article 44′s drafters objected to “[p]laying classes against each other and dividing Americans by elevating personal interest over common good.”  I was dubious that this was really what was in the drafters’ mind at the time, so I looked to see if someone might have investigated this question.

And, indeed, someone has, namely, Justice Cordy of the Supreme Judicial Court.  In a dissenting opinion in a case called Peterson v. Commissioner of Revenue (441 Mass. 420 (2004), if you’re keeping score), Cordy felt that the majority’s conclusion wasn’t consistent with what Article 44 was all about, so he dug into its history a bit.  Here’s what he found (warning: some legalese ahead):

Before art. 44 was ratified in 1915, the Legislature derived its authority to levy taxes solely from the enumeration of the powers of the General Court in Part II, c. 1, § 1, art. 4, of the Constitution of the Commonwealth (art. 4). That article provides that: “full power and authority are hereby given and granted to the said general court, from time to time . . . to impose and levy proportional and reasonable assessments, rates and taxes, upon all the inhabitants of, and persons resident, and estates lying, within the said Commonwealth.” This provision was repeatedly construed to require that municipalities (the principal collectors of taxes levied at the time) must apply a single rate of taxation to the total value of the property of all taxpayers in their respective communities, thereby ensuring that each taxpayer paid a share of the municipal burden proportional to his share of the wealth in the municipality. See Opinion of the Justices, 208 Mass. 616 , 618 (1911). While each municipality could apply a different rate of taxation on property in its community, the rate applied was required to be uniform for all property throughout that municipality. See id.

Until the late 1800′s, the requirements of art. 4 posed no real problems for the Legislature or municipalities: because “all the personal property of each individual was tangible and visible and kept in the town in which he dwelt . . . it was an easy matter to assess such property.” P. Nichols, Taxation in Massachusetts 463 (3d ed. 1938). However, as intangible property (stocks, bonds, and other financial instruments) became a more common and important component of wealth, the taxation of all property at a single rate that varied from municipality to municipality posed two related problems: First, because some intangible property constituted indirect ownership of tangible property (i.e., a corporate bond of a corporation that owned real estate), taxation of the value of intangible property and taxation of the value of the underlying asset was thought to amount to double taxation. See id. at 463-465. Accord First Report of the Special Commission to Develop a Master Plan Relative to Constitutional Limits on the Tax Power, 1969 Senate Doc. No. 126, at 33. Second, because tax rates were different in each municipality, and the rates of the property tax in larger cities (with the greatest financial needs) were higher, “the burden of the tax on intangibles alone furnished strong motive for concealment of intangible property, and also for transfers of domicile from Boston and other cities to smaller communities having lower tax rates and less efficient assessors.” Id. As a result of concealment and domicil shifting, [Note 3: Because intangible property was taxed at its owner's domicil, the wealthy could lower their tax burden by shifting their domicils from cities, with high tax rates and sophisticated assessors, to homes in rural communities with low tax rates and less aggressive and knowledgeable assessors. As a consequence, tax rates in the cities where resources were needed grew even higher (to make up for the lost wealth), and tax rates in rural communities moved artificially lower, magnifying the differences in municipal revenues. P. Nichols, Taxation in Massachusetts 464-465 (3d ed. 1938).] ”hardly a fifth of the personal property in [the] commonwealth was subjected to taxation.” P. Nichols, Taxation in Massachusetts, supra at 465.

By the early 1900′s, the Legislature was actively exploring a number of alternative proposals to address the growing problems occasioned by the taxation of intangible property, including: exempting some or all intangible property from the property tax and levying a Statewide special “excise” on intangible property; taxing personal property at a single rate uniform throughout the Commonwealth based on the average local tax rate; and requiring that intangible property be assessed based on the income it generated, rather than on its asset value. It sought advisory opinions from this court evaluating the constitutionality of these legislative proposals, and the court found each of them to be in excess of the taxing authority granted by art. 4. See Opinion of the Justices, 195 Mass. 607(1908); Opinion of the Justices, 208 Mass. 616 (1911); Opinion of the Justices, 220 Mass. 613 (1915).

Article 44 was adopted by the Legislature and ratified by the people in this context. [Note 4: Before it adopted the ultimate text of art. 44 of the Amendments to the Massachusetts Constitution (art. 44), the Legislature also considered other amendments that might solve these problems, including: amendments that would have eliminated the proportionality requirement entirely, 1914 House Doc. No. 729 and 1914 House Doc. No. 1052; and an amendment that would have authorized a single Commonwealth-wide tax rate for intangible property, 1914 House Doc. No. 1560.] Its adoption came “after prolonged study by successive Legislatures of the legal and practical aspects of income taxes, and after the proposal and consideration of numerous plans.” Opinion of the Justices, 266 Mass. 583, 587-588 (1929). Among the plans considered at length but rejected was an amendment to the Constitution explicitly authorizing a graduated tax on income. See 1914 Senate J. 1613-1614. “The Legislatures of the political years 1914 and 1915 [being] not unfamiliar with taxes graded as to rates and progressively increasing in proportion to the amount of property involved,” id. at 587, adopted language that rejected this approach.

The purpose of art. 44 was “not so much to produce additional revenue for public use, as to provide a more satisfactory system for the taxation of intangible personal property than that which had been in use since intangible property had come into existence.” P. Nichols, Taxation in Massachusetts, supra at 463. To accomplish this purpose, art. 44 gave the Legislature greater power and flexibility to structure a system of taxation, including the power to tax income and the ability to set different rates for the taxation of income derived from different classes of property.  [Note 5: In the year following the amendment, the Legislature enacted the first income tax law. It "was intended to enable the state to impose a tax on intangible securities which was capable of enforcement with some degree of equality and without driving capital out of the state. So far as it applied to income from property it affected only the classes of intangible property which were previously taxable on their capital value at the local rate, and as to such property it reduced the tax from a variable local rate, which amounted frequently to from 30 to 50 per cent of the income, to a fixed rate of 6 per cent, but provided means for the strict and impartial enforcement of the tax." P. Nichols, Taxation in Massachusetts, supra at 467.]  It also eliminated the requirement of proportionality for the taxation of income, requiring instead that a single rate of taxation be set for each type of income that would not vary from municipality to municipality, but would be the same throughout the Commonwealth. See, e.g., Knights v. Treasurer & Receiver Gen., 237 Mass. 493 , 495 (1921), aff’d sub nom. Knights v. Jackson, 260 U.S. 12 (1922) (“Under this amendment plainly income taxes are not required to be proportional or equal as between different validly established classes. They need only be reasonable and uniform . . .”).

Interesting, no?  So, on the one hand, the drafters of Article 44 considered and rejected a proposal that would have explicitly authorized a graduated income tax.  But, on the other, they dramatically expanded the legislature’s overall power to tax, and they did so because clever tax avoidance schemes by people who could afford them had gotten things to the point where barely 20% of the wealth that should have been taxed actually was taxed.  Cordy’s description of how “the wealthy could lower their tax burden by shifting their domicils from cities, with high tax rates and sophisticated assessors, to homes in rural communities with low tax rates and less aggressive and knowledgeable assessors” suggests that moving property out of the cities and into rural areas was the 1915 equivalent of moving your assets to the Cayman Islands.  Article 44 was an aggressive effort to clamp down hard on that practice.

What seems to be distinctly lacking is any major concern about how non-uniform tax rates might constitute some sort of class warfare where the wealthy and less-well-off are pitted against each other.  I’d be interested in knowing more about the consideration given to the graduated tax plan, and the reason for its rejection, but my suspicion is that the kind of “class warfare” rhetoric that meets any present-day suggestion that the wealthy should pay a higher rate than the less well-off is a recent invention.  Rather, it strikes me as plausible that the “uniform rate” requirement was instituted precisely to prevent the kind of tax avoidance schemes that wealthy people had been engaging in prior to Article 44′s ratification in which they moved property “to smaller communities having lower tax rates and less efficient assessors.”  Of course, I’d be happy to be proven wrong, and I welcome further discussion and elaboration on this interesting topic.