Massachusetts Legislature Flouting Rules of Direct Democracy?Gail Heriot
Jeff Jacoby’s column today–“A Mockery of the Rules“–is interesting. It’s about the attempt by Massachusetts legislators to avoid a vote on the Massachusetts Protection of Marriage Amendment, which has already garnered a record-breaking 170,000 signatures–more than enough to get it on the ballot.
Evidently, however, under Massachusetts law, a proposed initiative that would amend the constitution must also be put to a vote in the Massachusetts legislature and must garner at least 25% of the vote in two consecutive sessions before it can be put to a vote of the citizenry. That seems like a sensible enough rule to me. It slows down a process that otherwise is sometimes inclined to hotheadedness, and it ensures that at least some people in the legislature think it’s a good idea. (You wouldn’t want to require a majority here, since the whole point of the initiative system is that sometimes the state legislature cannot be depended upon to reflect the will of the majority (e.g. term limits). But in Massachusetts, the majority is trying to thwart the process by preventing a vote altogether. And that seems inconsistent with both both with the mandatory language of the constitutional provision establishing the initiative process and the spirit of the rule requiring only 25% of legislators to endorse the initiative. Says Jacoby:
[I]t takes an incredible amount of work and dedication to get an amendment to the ballot. Citizens who accomplish it demonstrate an admirable faith in the democratic system. That doesn’t entitle them to win, of course. But it does entitle them to be treated fairly. If the petitioners have to play by the rules, the Legislature does, too.
And what the rules say about the marriage amendment is that the Legislature must put it to a vote. The Massachusetts Constitution could not be clearer on the point. Article 48, which establishes the right of initiative and referendum, specifies that when amendments proposed by initiative petition come before the Legislature, a roll call is mandatory. They “*shall be voted upon*” as written, the Constitution directs (unless amended by a three-fourths supermajority). Moreover, the Legislature is permitted to take action on them “*only* by call of the yeas and nays.” (Italics added)
Lawmakers are not given a choice in the matter. The Constitution requires them to vote. If it didn’t, initiatives opposed by the legislative leadership could always be aborted by simply refusing to bring them up for a vote. Instead of operating as a check and balance on the Legislature, Article 48 would then be a toothless sham.
But for weeks now, same-sex marriage advocates have been telegraphing their intention to kill the marriage amendment through just such an unconstitutional ploy. “Every possible option is on the table,” says the head of MassEquality, a powerful coalition opposed to the amendment. Among the tactics being discussed: adjourning the joint session before the amendment is brought up, or arranging for enough legislators to stay away in order to prevent a quorum.
Some members brag openly about their plans to flout the Constitution. “Legislators won’t be hiding in Oklahoma,” House majority leader John Rogers told Bay Windows, a leading gay newspaper. “In fact, they’ll be standing right in front of the State House steps, probably singing freedom songs and hugging one another in plain sight, not cowering.” And by the way, Rogers added — whether from ignorance or fraudulence isn’t clear — “that is perfectly acceptable as constitutional behavior.”
Those intoxicated with their own moral superiority often find it easy to believe that it is “perfectly acceptable” to make a mockery of the rules that ensure fairness for those they look down upon. Homosexual marriage is widely supported by Massachusetts elites; few of them are likely to lose much sleep if the proposed amendment is derailed by an illegal parliamentary maneuver. In a newspaper ad appearing this week, 165 Massachusetts business executives and civic leaders endorse same-sex marriage and urge the Legislature to reject any amendment “that would take away rights.” But the ad says nothing about the right of 170,000 Massachusets citizens to have their petition put to a vote on Beacon Hill.