Friday, December 29, 2006

The Bloom Is Off This Ivy

In the most recent instance of political correctness run amok on the campuses of America's finest universities, one Josie Harper, the Dartmouth College Athletic Director, has taken it upon herself to apologize to the Dartmouth College student body due to the upcoming men's hockey face-off between Dartmouth and the University of North Dakota's Fighting Sioux:

Josie Harper, Dartmouth's athletic director, wrote a letter to the student newspaper, The Dartmouth, last month about the game, saying: "I must offer a sincere apology to the Native American community and the Dartmouth community as a whole for an event that will understandably offend and hurt people within our community."

Dartmouth, in Hanover, N.H., has decided to set up a committee that will consider whether the school should refuse to compete against teams that use Native American nicknames and mascots....

...Harper called the University of North Dakota's use of a Native American symbol "offensive and wrong."

No word on whether or not Harper is, herself, a member of the Sioux Nation, but it doesn't seem to matter to her that the Fighting Sioux's emblem was designed by a Native American and that, at least in North Dakota, the Sioux don't have any problem with it. Does anyone else really have any say in the matter?

This incident follows the original controversy in which that ever-reliable bastion of diversity, the NCAA, instituted its policy against the "hostile or abusive" use of American Indian names, mascots and imagery:

"But as a national association, we believe that mascots, nicknames or images deemed hostile or abusive in terms of race, ethnicity or national origin should not be visible at the championship events that we control."

See the problem? Deemed by whom to be hostile or abusive? The non-Native American athletic director at Dartmouth? Any fan? Or does one have to be a member of the "abused" tribe to have standing to "deem" the emblem offensive?

I wonder if Ms. Harper sought the input of any members of the Sioux Nation before she sought to defend their sensibilities.

If I were a Dartmouth graduate, I'd be mortified by this nonsense.

Thursday, December 28, 2006

As Good As It Can Get

The Supreme Judicial Court of Massachusetts has rendered an opinion which states that the legislature of the Commonwealth of Massachusetts is in violation of Article 48 of the Massachusetts Constitution if it recesses the current Constitutional Convention on January 2, 2007 without voting on the gay marriage amendment. Unfortunately, it holds as well that there is no defined remedy for the people of Massachusetts other than the ballot box, and that it does not have the constitutional authority to order another branch of government to do something (i.e., vote).

While there are undoubtedly others who (in abject ignorance) assert that the SJC's latest action is "hypocritical," the Court's opinion, rendered unanimously, goes as far as it can and is entirely consistent with all prior precedent on the issue (of which, incidentally, there is far more than ought to be the case -- see below). The question that one must ask himself is, how many times can the legislature spit in the electorate's face before they ascend on the State House with torches and rocks??

The Court's opinion regarding the obligation to vote on the merits of each initiative amendment could not be clearer"

The members of the joint session have a constitutional duty to vote, by the yeas and nays, on the merits of all pending initiative amendments before recessing on January 2, 2007.

No wiggle room in that declaration. And it is well-founded in the historical documents:

The Constitutional Convention of 1917-1918, at which the procedure for the adoption of a constitutional amendment by popular initiative was proposed, confirms the plain meaning and purpose of the above text. See 2 Debates in the Constitutional Convention 1917-1918, at 16, 39 (1918) (quoting two proponents as stating that purpose of art. 48 is to "provide[ ] the machinery by which the will of the voters of this Commonwealth may be made effective" and "enable the people to have some say ... with regard to constitutional amendments"). We have stated that the framers crafted art. 48 as a "people's process. It was intended to provide both a check on legislative action and a means of circumventing an unresponsive General Court.... It projected a means by which the people could move forward on measures which they deemed necessary without the danger of their will being thwarted by legislative action." Buckley v. Secretary of the Commonwealth, 371 Mass. 195, 199 (1976). We have also stated that "art. 48 was adopted in the expectation that all officers concerned would perform the duties required of them at the proper times." Opinion of the Justices, 334 Mass. 745, 758-759 (1956).

It is not surprising, therefore, that the records of the drafters' debates indicate that they did not intend a simple majority of the joint session to have the power effectively to block progress of an initiative. See 2 Debates in the Constitutional Convention 1917-1918, supra at 629 (expressly rejecting such a proposal). [FN6] Specifically, words spoken during the debates by one Mr. Quincy of Boston, raised the prospect of what would happen "if the mandate of the Constitution is disregarded and somebody declines to carry it out?" Id. at 685. Mr. Quincy answered himself: "I do not believe we need to consider seriously that contingency or a defiance of the provisions of the amendment by either of these two branches of the General Court." Id. See LIMITS v. President of the Senate, 414 Mass. 31, 35 n. 6 (1992).

Mr. Quincy of Boston must be spinning in his grave. For what would not be "considered seriously" in 1917 -- that a body of elected representatives would blithely ignore their Constitutional obligation -- has become de rigeur with the contemporary body. And it is not just the Democrats, either. Both the former and future Senate Minority Leaders (Brian Lees and Richard Tisei) are in support of the current strategy of ducking the vote.

The legislature's recent history is appalling in this regard:

In 1976, the legislature attempted to subvert an initiative petition with regard to gun control by proposing an "alternative" that gutted the intent of the petitioned law. The Court stated:

In short, we cannot countenance the emasculation of the initiative petition by the attempt to substitute a measure with objectives at variance with those which the plaintiffs have proposed. To do so would be to fly in the face of the evident intent of the distinguished members of the Constitutional Convention who prepared the way for the passage of art. 48 by the people. To allow 1976 House Bill No. 5081 to go on the ballot with the initiative petition here in question would interfere with the ability of the people to declare their position on the basic question originally proposed.
[Buckley v. Sec. of State, 371 Mass. 175]

In 1992, the supporters of an amendment to institute term limits for legislators and constitutional officers were rebuffed in their attempt to force a vote. As is its modus operandi, the Constitutional Convention employed a series of parliamentary maneuvers to duck the issue:

The joint session considered the initiative amendment on Wednesday, May 13, 1992, and voted to place it at the end of its calendar. The joint session has reconvened and recessed on numerous occasions since May 13, 1992, without taking final action on the initiative amendment. Several attempts to bring the initiative amendment forward for further consideration have failed because, under the governing rules, an objection to such action has been successfully raised. The joint session met on December 16 (after the record in this action was prepared), took no final action on the initiative amendment, and recessed until December 21. On December 21 the joint session adjourned without taking final action on the initiative amendment.

Justice Wilkins clearly articulated the legal principles that prohibited the Court then from intervening -- the same principles that apply in this case:

There are more fundamental problems with the plaintiffs' requests for relief. The courts should be most hesitant in instructing the General Court when and how to perform its constitutional duties. Mandamus is not available against the Legislature. Lamson v. Secretary of the Commonwealth, supra. Cf. Rice v. The Governor, 207 Mass. 577, 578-580, 93 N.E. 821 (1911) (mandamus does not lie against the Governor). The reason for this rule rests on separation of powers principles expressed in art. 30 of the Declaration of Rights of the Massachusetts Constitution. Those principles call for the judiciary to refrain from intruding into the power and function of another branch of government, in this case, the joint session of the Legislature held under art. 48. See **1310 Babets v. Secretary of Human Servs., 403 Mass. 230, 233, 526 N.E.2d 1261 (1988). It follows that a judicial remedy is not available whenever a joint session fails to perform a duty that the Constitution assigns to it. Restraint is particularly appropriate here where art. 48 gives the Governor a role in seeing that a joint session carries out its constitutional obligations, but gives to the courts no enforcement role. When the purpose of art. 48 has been frustrated, the only remedy may come from the influence of public opinion, expressed ultimately at the ballot box.
[LIMITS v. President of The Senate, 414 Mass. 31]

There it is again, that pesky ballot box.

These are only the most obvious examples, because they are the instances where the proponents of a measure had sufficient organization and critical mass to afford taking the matter all the way to the Supreme Court.

In fact, it is typical that the Constitutional Convention doesn't actually convene at all -- except for the purpose of adjourning from time to time. During my six years in the legislature, I cannot think of more than a cople of times in which a vote on the merits was ever afforded the membership.

I recall witnessing my first "ConCon," which always takes place in the House Chamber. The center doors are opened (they are opened only for the ConCon and to admit the Governor), the Senate Sargeant at Arms announces the members of the Senate, they straggle in to the jocular hoopla of the House members. The Senate President ascend to the Speaker's Rostrum, authoritatively slams the gavel and instructs the body the "the Constitutional Convention will come to order!"

Half of the members, milling about, continue to engage in their casual conversation, joking and story telling.

Some time passes without incident.

The Senate President is heard once more:

"Motion is made that the Convention recess until November 17th at 2:00 p.m." The ayes have it. The Convention recesses, the Senators straggle out.

I think I voted on one amendment during six years. It was offered and championed by teh Senate President himself, William Bulger. His amendment made it to the ballot on each instance, and was soundly defeated by the voters (for the record, I was one of its staunchest allies).

So given the sordid history of this process, one must take comfort where it can be had, and in closing, I turn to the final paragraph of Justice Greaney's opinion:

We conclude with these observations. Some members of the General Court may have reasoned, in good faith, that a vote on the merits of the initiative amendment in accordance with the directives of the pertinent provisions of art. 48 was not required by the constitutional text and that their duty could be met by procedural (or other) votes short of a vote by the yeas and nays on the merits. Today's discussion and holding on the meaning of the duty lays any doubt to rest. The members of the General Court are the people's elected representatives, and each one of them has taken an oath to uphold the Constitution of the Commonwealth. Those members who now seek to avoid their lawful obligations, by a vote to recess without a roll call vote by yeas and nays on the merits of the initiative amendment (or by other procedural vote of similar consequence), ultimately will have to answer to the people who elected them.

Would that such a prospect brought about some concern in the hearts and minds of the Great and General Court.

Tuesday, December 26, 2006

The Real Thing?

Wednesday, December 20, 2006

Sorry Baby, Wrong Number

Well here's an item in today's paper that I am certain hit a nice tonal chord with most readers:

Michael W. Morrissey, the Senate chairman of the Joint Committee on Telecommunications, Utilities, and Energy, is putting forth legislation to impose new regulations on cellular phone companies to make them more responsive to consumers.

The bill, drafted by Morrissey, would force the companies to issue semiannual public reports detailing their signal strength, their dead zones, and gaps in coverage, along with the number of dropped calls.

In addition, the legislation would allow customers with poor service to terminate their contract with their cellphone company without having to pay hefty penalties.

What could be wrong with that, especially coming from the ever-reliable protectors of consumer rights, the Massachusetts legislature?

As usual, there's more to the problem of unreliable service than meets the average legislator's eye (and Morrissey is no average legislator).

As a general rule, by now most every cell service provider is offering pretty reliable service along every major arterial corridor east of Springfield. All of the interstate highways, the Mass Pike, Route 128, most of the major arterial routes through most of the suburbs. That is true in most every instance in which the local municipalities are reasonable in their land use permitting of wireless carriers.

But if you live in Weston, you're pushing your luck if you think you can hold a call along Route 20 (formerly the major route between Boston and New York). If you live in Wayland, you've got no service at all. NONE.

Lincoln (parts of Route 2 only), Concord (slowly improving, after two federal court losses), Carlisle? Good luck. Wellesley? As if. Even on Route 9, you're praying for service.

Senator Morrissey knows this.

This is why people have complaints about service. Some local zoning boards and politicians make it practically impossible to site new facilities to eliminate service problems. For instance, some communities prohibit a wireless installation within any residential zoning district, even if the entire town is zoned residential and the installation is a stealth installation inside of a church steeple. A carrier must therefore seek a series of zoning variances, face strident neighborhood opposition, be denied by the board and file a federal law suit, in which case the Court itself orders the issuance of all development permits necessary to permit the facility to be built.

Several years ago, when the wireless carrier Nextel Communications sought to have local zoning authorities cut out of the process by having wireless classified as a "public utility," it prevailed in department regulatory proceeedings. The response was swift and merciless. Legislators quickly filed legislation to undo DPU's ruling, leaving local zoning authorities free to toss roadblocks in the way, even though federal law was clear that they could not effective prohibit wireless services. Senator Morrissey was in the middle of that very legislative wrangling.

At the impetus of Mass Municipal Association and the wireless industry, a working group was formed to work out a compromise piece of legislation that preserved municipal zoning authority but further defined what local zoning boards could do with particular wireless proposals. For instance, recognizing that the primary opposition to wireless antennas was their unsightliness, the draft legislation required that such installations could proceed without the need for extraordinary zoning relief such as heigh or setback variances. Preference was placed on installations that utilized existing structures (churches, power stanchions, silos, rooftops), and the stringent regulation was left to new tower installations. The compromise legislation was agreed to by all sides; but when the MMA took the bill back to its members, they squealed like they were Ned Beatty in Deliverance, and the bill went nowhere. Since that time, MMA has not deemed the issue to warrant its attention.

In the meantime, the town of Wayland has been chastised by a federal court for its "fixed opposition" to wireless, been sued successfully a second time, and doesn't appear to have been chastened in the least. If you live in Sudbury and commute from Boston, either take the Pike to Natick or take Route 20 and listen to Howie Carr, because a phone call you will not make.

A few years back in Carlisle, one tower provider proposed a monopole structure in the back of a lot on which an auto salvage business was conducted (after the zoning board had expressed its opposition to one other site and encouraged the providers to go to the auto salvage site). Under pressure from a handful of rabid (and utterly mannerless) abutters, the zoning board denied the application, stating that the applicant had not adequately investigated the alternative site across the street -- a combined 75 acres of undeveloped farmland and meadow, abutting the Concord River and a national wildlife refuge, listed on the town's Open Space Master Plan as property that was very important to protect the town's scenic and natural beauty. After three more years of permitting and litigation rigamarole, the riverside cell tower will soon emerge on the landscape to the great dismay of one and all. Now that's progress!

This sort of recalcitrance is not atypical here in Masaschusetts and other New England states. The average cost of permitting a wireless facility, and the average time for permitting, are the worst in the country. As a result, service is worse and the iincremental costs of improving it means all customers pay more across the board.

What is diabolical about this proposal is that (and perhaps Senator Morrissey knows this) there is one provider out there that has a built-in advantage under a legislative scheme such as his. If it were to exploit it under the law he proposes, wireless competition in Massachusetts could be severely impaired, and the immediate result would be a catastrophe -- because no carriers have perfect service and they will not, until the recalcitrant towns get out of the way.

So if you are an environmentalist and you are canoeing on the Concord River when you come upon one of "those things," you'll have the town of Carlisle (and the legislature) to thank.

And if you live in any town where your cell service stinks, call your provider and ask them what they are doing to improve it. If they have plans to seek additional service, support them. Write a letter, or better yet, show up at the hearing and get into the fray. Lawd knows that the opponents of this technology are sure to be there, tin hats firmly atop their heads. And the boards are likely to be listening to them.

Not the Best Ambassador

I have a daughter who is in the midst of applying to colleges. When we were discussing "safety" schools, I suggested that she look at U. Mass. Amherst. I would never have considered this twenty years ago (I shunned the place myself), but they've made a great deal of progress, their reputation among publics has risen, and they have a good Honors College program. This doesn't entirely erase my reluctance to have her exposed to the everpresent mass of humanity inhabiting the campus who will forever preserve for it the nickname ZOO MASS. But I could overlook it, perhaps.

I have to be circumspect, however.

In the wake of the well-publicized rioting of several hundred students following U. Mass's loss to Appalachian State in the Division 1-AA championship game, the university's vice chancellor, Michael Gargano gamely vows that the university will hunt down by any means all of the responsible students and deal with them harshly. They're talking expulsion and prosecution. Bully for them.

Then we have this. One "Mishy Leiblum," a student trustee and undoubtedly the apple of her father's eye, coming to the defense of the oppressed students in their sufferance of a near-police state:

Mishy Leiblum , a student trustee, said the more the university has clamped down on students, the worse students' behavior has become. "Who cares if you bash your windows if you feel like you live in barracks?" asked Leiblum, who noted that she does not condone the rioting. "Why would you have a vested interest in your building?"

Ms. Leiblum is apparently dissatisfied with the quality of her housing and thinks that it is appropriate to express one's dissatisfaction by destroying public property (although she draws the line at rioting). Maybe they should get bigger rooms or something.

Well she has apparently had a change of opinion, because she was higly critical of the recently completed dorms on North Campus, which featured exactly that:

According to Marisha Leiblum, the newly elected Student Trustee the housing space could have been doubled if it had been constructed in a fashion similar to the other housing on campus.

"Everybody knows that these dorms were built to attract a new, creamier crop of students to UMass. While originally the University was considering building new dorms that would house twice as many students as these new suites (for essentially the same cost), they opted for luxury for a few over affordability for many. Unfortunately, this represents the general administrative philosophy on campus today."

In another breath, she calls for providing free access to courses and lowering tuition -- that'll help with the dorm rooms, Mish.

Ms. Leiblum, a graduate student in Labor Studies, has a way with words. During a March, 2005 meeting of the Faculty Senate in which the subject was a draft action plan for increasing university diversity, Ms. Leiblum confronted Chancellor Lombardi thus:

Undergraduate Student Marisha Leiblum asked for a point of clarification. She asked the Chancellor if they were going to be talking to the wall or if there was going to be some kind of response to these questions at some point.

Chancellor Lombardi responded that the purpose of the exercise is to gather opinions, comments, and suggestions for
improvements to the draft. He is listening very carefully so that he can take advantage of people’s perception of what is right
and wrong about the draft and then incorporate it when they revise it.

Ms. Leiblum responded that that did not answer her question. She asked if the Chancellor was going to give any feedback.

Chancellor Lombardi responded no.

Ms. Leiblum then asked if that meant that for the whole meeting he was not going to speak back.

Chancellor Lombardi again responded no.

And then there's this little bit of Utopian thinking:

After their demonstrations failed to convince the trustees to reject student fee increases, she had this to say:
“We see this as a step towards starting a dialogue about the role of public higher education in Massachusetts,” said student Marisha Leiblum, who was one of the demonstrating students and a member of the Free Higher Education movement. “We plan to continue to lobby for more public money for UMass throughout the spring and beyond.” As for the scope of the fight for funding for UMass, she stated, “Ultimately we think higher ed is a right, and should be free to all.”

I hate to be a pessimist, but as long as radical fools like this are given titles like "trustee," U. Mass will never shake the ZOO monkier.

Friday, December 15, 2006

Paying for Parties

Well now that I've picked a fight with my fellow bloggers over the subject of paying for inaugurals, perhaps we can back away from the conflagration and take a closer look at the whole issue of paying for parties.

The proposition has been made that it is hypocritical of Deval Patrick (and, as it were, Mitt Romney) to assert that he is an "outsider" while he solicits contributions to his inaugural committee, in significant chunks, from well-connected corporate and political interests.

I think we need to start on common ground with the supposition that every incoming Governor is entitled to define the breadth, extent, and therefore cost, of his own inaugural celebration. To the extent that (as is the case in a relatively few jurisdictions) public funds are available for some portion of an inaugural ceremony (e.g., a swearing-in), those funds cannot (and should not) confine the Governor-elect from establishing events outside of that on his own (would anyone argue that a Governor cannot have a ball? Would anyone argue that it should be paid for with taxpayers' money?)

So, if we agree that an inaugural celebration is a proper event for the raising of private funds, the next question is, how much, and from whom? Here's where the rubber meets the road.

Naturally, the extent of the plan defines the amount of money to be raised. To the extent that one eschews the raising of money from within the political establishment, one must then either confine one's plans to a modest event (how does one succeed in raisiing money from people with no connection to politics?) or raise the ticket price the events so that ticket income alone fully covers the cost of the event. This alternative virtually guarantees that popular events would be beyond the reach of the "common man" and thus subject to criticism, if not simply poor attendance.

Setting all of that aside for a moment, the criticism in this controversy, coming from both left (via Common Cause) and right (the Republican Party) is that, by soliciting funds from corporations and their lawyers, lobbyists, etc., the Governor-elect taints his reputation as an "outsider" by creating potential official obligations to the donors.

Both critics contend that it creates an "appearance" of hypocrisy, conflict or impropriety for those with a real, apparent or potential interest in the policies forthcoming from the Patrick administration to be funding his inaugural events. By doing so, critics suggest, the donors create a relationship of undue favor or influence over the incoming administration's future actions.

This argument is falacious, as it ignores the natural and embedded dynamic of how political pressures work.

First, any incoming Governor has a well-founded understanding of, and appreciation for, those most responsible for his victory. They are representatives of the issues and causes to which the Governor-elect was most solicitous and has the greatest affinity. For these individuals and interest groups, contributions to his inaugural events are already superfluous, as they have already "delivered" (to use a term unduly susceptible to abuse). Their participation in any inaugural festivities does nothing to influence the relationship between them and the new administration -- it already exists.

For those businesses or political interest groups that would otherwise be antithetical to the Governor-elect's perceived agenda (for instance, that the opponents of Cape Wind --heh heh), do we presume that their refusal to sponsor some portion of the festivities would place them in a less advantageous position than they may have been? Or that, despite the Governor's natural opposition to their cause, the giving of money to an inaugural committee will somehow soften that opposition? (for instance, it is interesting to note that the largest single contributor ($410,000) to Bill Clinton's second inaugural was Marriott International, whose founder, Willard Marriott (the genesis of Mitt Romney's first name) was a Mormon.)

Must we assume in these instances that there is nothing at work here but a "quid pro quo" environment where all key players are focussed solely on political gain? I cannot be that cynical.

One must recognize that, in politics, the value of money alone is not that high. Politics is very much a social exercise in governing. It requires the interaction of individuals and groups to persuade decisionmakers. Success depends on both the message and the manner of its delivery. These are the keys to policymaking, not money itself. To the extent that money does "open doors," it is money given to campaign causes, not to fund a party at a convention center.

And it is axiomatic and logical that the people who make contributions to politically-related causes are those who are most connected to the political community. I would argue that even the most prudent of political outsiders would (and should) hesitate to risk insulting a significant segment of the political establishment by not asking, or refusing to accept, their participation in such an event.

If Patrick comes out of the gate in his first year and starts raising campaign money by the truckload from unions and other PACS, then by all means, fire away.

It is apparent that the "controversy" (manufactured as it is) over raising funds for inaugural balls is not unique to Deval Patrick or Massachusetts. It is being played out in much the same fashion in other states as well.

Wisconsin Democrat Jim Doyle's inaugural has a maximum contribution of $50,000 -- but in Wisconsin, the inaugural is run by the Boys & Girls Club of Kenosha, which gets to keep unused funds. That's a clever way to insulate the Governor; but can you imagine the donnybrook in Boston among those elbowing to become the new inaugural sponsor?

In Connecticut, Governor-elect Jodi Rell is having a problem because of tough new laws passed in the wake of John Rowland's legal problems. Rowland paid for his previous inaugural celebrations in the same manner -- privately raised funds, principally coming from his political contributors.

The State of Texas provides for an inaugural committee by statute, and an inaugural fund to which anyone may contribute free of limitation. The financial reports are public information (unlike current private funds here). Excess funds are retained in an "endowment fund" and used for future events.

Here's an interesting look at the history of the California inaugural committee, alon g with a list of Aronold Schwartzenegger's inaugural sponsors. Apparently, Arnold's biggest controversy is the fact that he has named
Willie Brown as the emcee. Talk about insiders (is Arnold still an "outsider" or has he crossed over?)

Thursday, December 14, 2006

Hypocrisy Among the Partisans

Those who do not know me will certainly wonder if I've lost my mind, but lately I have become quite impatient with the partisan demagoguery coming from fellow Republicans here in Massachusetts.

In 2002 when Mitt Romney was elected Governor, his Inaugural Committee set about raising $1.3 million -- a record for inaugural spending until then -- much of it from Big Wig corporations (Reebok, Mass Mutual) and their chieftains (Bill Bain, Joe O'Donnell) and lawyers (Ropes & Gray), in $25,000 chunks. During his campaign, he portrayed himself (accurately) as an outsider and reformer, and pledged to "change state government" and not to be beholden to special interests. Surely, when he began collecting money for his three-day-long inaugural celebration, none of his Republican supporters would have failed to defend him against partisan accusations of "appearance of conflict of interest," since these same corporations and their chiefs were in a position to seek assistance from the Governor's office. Surely!

Romney's inaugural program also sought to present an all-inclusive, common man theme. From his campaign's website:

...Emphasizing the inaugural theme of inclusion and public service, Romney and Lieutenant Governor Kerry Healey were greeted upon their arrival at the State House by a "Citizens Welcome" of Girl Scouts, City Year Corps members and Beverly High School Band students. In Nurses Hall, they autographed inaugural post cards for school children, then saluted veterans in the Hall of Flags and shook hands with members of the public at the foot of the Grand Staircase.

Faces of citizens were on display throughout the inaugural events, photographed by high school students across Massachusetts. Romney and Healey started the day by serving breakfast to homeless veterans in Boston and later participating in a basketball game with middle and high school students at the Colonel Daniel Marr Boys and Girls Club in Dorchester.

In a departure from the past, Romney and Healey held the traditional prayer service the previous evening at the New Covenant Christian Church in the predominantly minority neighborhood of Mattapan.

Tomorrow, they extend the festivities to western Massachusetts by visiting a Springfield elementary school.

To a man, we puffed out our chests and said "that's our man!! Way to go!!"

Well now the shoe is on the other foot. Deval Patrick, a man who grew up far, far from the cloistered neighborhood of Grosse Point in the slums of South Side Chicago, is pursuing plans for an inaugural that is much along the same lines as Romney's blueprint. Another record-setting private fundraising drive, targeting the A-list of Massachusetts business and society (along with a multitude of "little people"), and a five-day program that seeks to reach out to the geographical and cultural corners of the state. Bully for him.

But what do we hear from my fellow Republican bloggers?

Scorn. Ridicule. Contempt.

First, there's Matt and Aaron Margolis, publishers of Hub Politics, who slam Patrick's inaugural plans, positing that "all the reasons Deval Patrick gave for you to elect him are being refuted--by himself--all before his inauguration," and demonstrate that he is just an ordinary politician. (This is after a solid week of trashing Leslie Kirwan, the former Weld administration budget professional who was tapped as Secretary of A&F.)

Then Optimistic Patriot, my rhetorical foe at New England Republican, rolls out some of his best snark with this:

Ever notice how everything Governor-elect Patrick does is for the people? That’s the latest from Camp Patrick as more negative attention is focused on his special interest funded, budget busting inauguration. But he doesn’t want you to get the wrong idea by the $50,000 per special interests are plopping down to fund the bash because he’s making government more accessible to you through these parties. It’s your bash, Massachusetts.

But the idea that Patrick is making government more accessible to the people by charging them $50 a head for the privilege of attending his inaugural is laughable. But in a small nod to the populace’s distaste for his extravagance, Patrick is grabbing a fig leave by throwing some boots and shoes to poor children. This man gives till it hurts.

[Ed.: Can someone explain to me how an inauguration that hasn't happened yet can be "budget busting?" I know, I know -- hyperbole. See infra.]

Now I wasn't blogging back in December 2002 but I have to suspect that in December of 2002 there were plenty of lefty blog posts ridiculing Romney for being "for the people" and taking money from corporate fat cats. When they do, we bristle and smoulder and erupt in our best partisan snarking, and the debate (such as it is) immediately devolves into a Yo Mama contest between left and right. It's tawdry, juvenile and pointless.

So I ask my fellow Republican bloggers -- why is it okay for Mitt to put on a "people's inauguration" and raise money from corporate sources, but it is an act of sheer hypocrisy for Patrick to do the same?

I can hear O.P. already (actually, to quote him directly):

Deval Patrick set the bar very high. He promised a new direction and tone for state government. He positioned himself as the outsider. So the expectations are very high, but he set them, not me. And when you examine his actions so far, they don’t match his rhetoric. He’s meeting with Billy Bulger. He’s shuffling the same old people around. The same special interest groups running the state into the ground now funded his campaign and are throwing him the largest inauguration ever.

Hmmm. Change a few nouns, substitute a few names, maybe doesn't sound so different from Mitt.

And why is that a surprise. Isn't being "for the people" and "aganst special interests" what every (successful or unsuccessful) candidate is? Is the rhetoric so much different? Naah.

There used to be a tradition in the time and tide of electoral politics. It was called "The Honeymoon."

The opposition party would take a step into the background for a bit, allow the incoming victor the courtesy of a few months to select his team, execute his inaugural party, go through the transition process and submit his first budget. The Honeymoon might be long (Weld's) or short (Romney's), but it was granted. (Without doing any exhaustive research, my fuzzy memory says that even Mike Dukakis received a reprieve from his most avid opponents following his reprise primary victory over Ed King and subsequent trouncing of my dear friend, John Sears.)

But now it seems to be an all-out sprint to the front line at the inaugural parade route: the rabid participants, faces contorted despisingly, bullhorns perched lipward, tomato-pitching arms cocked at the ready, partisan minds convinced that their worst predictions are certain to be validated tomorrow.

So I suggest to those with a frothing cynicism (however born) of this particular aspect of Patrick's transition, CHILL OUT.

We Massachusetts Republicans have been advised by the vast majority not among us that our manner and method of communicating our ideas is nothing less than an abject failure. We cannot afford to wave our big swollen bruised egos around, lest they continue to strike unintended objects and cause further antipathy to those who otherwise might listen.

The man won an election with stunning ease. Pack your ammo and hold it for something that matters.

For the time being, remember what the value of magnanimity in defeat is to the spectator who might support your cause but objects to the message or the messenger. There are plenty of them out there.

Wednesday, December 13, 2006

P.C. Donnybrook!

Bro's caricatures really can't be beat. Look at those TEETH!!

More Junk Science from Anti-Tobacco Crowd

Just when I was beginning to hope (irrationally) that the anti-tobacco people would stop using junk science to support their precious political cause (i.e., turning smokers into social pariahs), Professor Robert Proctor seizes upon the tragic poisoning of Alexander V. Litvinenko to further the agenda.

In his NYT op-ed entitled "Puffing on Polonium," Proctor discloses that "the industry has been aware at least since the 1960s that cigarettes contain significant levels of polonium." Significant levels. **GASP** As if the tar and nicotine fears weren't enough, now smokers have to worry about losing their hair before dying a slow and painful death.

How much is "significant?" After some fast calculations, he concludes:

"London’s smokers (and those Londoners exposed to secondhand smoke), taken as a group, probably inhale more polonium 210 on any given day than the former spy ingested with his sushi." **GASP** It's in the air around us?!?!?!? (Cue the widespread panic)."

If this statement is ominous but not blunt enough, his conclusion is:

"I suspect that even some of our more enlightened smokers will be surprised to learn that cigarette smoke is radioactive, and that these odd fears spilling from a poisoned K.G.B. man may be molehills compared with our really big cancer mountains."

Wow. Cigarette smoke "is radioactive," and the polonium poison of Litvinenko is a molehill compared to the polonium poisoning of all of us by cigarette smoke. Wow.

What about Professor Proctor? According to his page on the Stanford University website, he is a Professor of the History of Science, and has been quite active in the anti-tobacco cause for years. No surprise there. If you care to review the nature of "where he is coming from," his report entitled A HISTORICAL RECONSTRUCTION OF TOBACCO AND HEALTH IN THE U.S., 1954-1994 , is a good place to start.

As to his findings on polonium and the threat that it's presence in cigarettes causes, Charles W. Magee, Jr., author of Lab Lemming Lounge, provides the following mathematics:

"For analogy lovers, here’s a more correct one that what Professor Proctor has dished out: Potassium, which is a vital nutrient, has a slightly radioactive minor isotope, 40K. With an isotopic abundance of .01% and a half-life of 1.25 billion years, a banana with 450 mg of K will kick out 14 decays every second. So a banana is over nine thousand times more radioactive than the polonium in a cigarette.

Now, how many cigarettes would it take to get a lethal dose? Well, the LD 50 for ingestion is around 8 million becquerels (decays/sec). So with 1.48x10-3 Bq per fag, you would need about 5.4 billion of them to accumulate a lethal dose of polonium. I reckon the nicotine would get you first.

Professor Proctor writes, “London’s smokers (and those Londoners exposed to secondhand smoke), taken as a group, probably inhale more polonium 210 on any given day than the former spy ingested with his sushi.” Can this be true? Well, with a lethal dose 5.4 billion times greater than that of a fag, and assuming that 5.4 million Londoners smoke, they’d have to suck down a thousand cigs a day (50 packs) in order for the figures to be correct. Muscovites may think a 50 pack day is cold turkey, but Londoners? I doubt it."

As Magee says in a comment to his own post, "here are plenty of sound reasons to discourage smoking; we don't need to discard them for sensationalized scare tactics."


UPDATE: Far surpassing Magee in both mathematical precision and eloquence is one Russell Seitz, who adds even more clarity and irony to the issue:

The human body excretes polonium 210 about three times faster than the isotope decays . Since the 0.04 picoCurie Proctor invokes works out to half a million atoms ingested by a pack -a-day smoker, the equivalent annual dosage is ~3 × 10^-8 J/kg day) times 365 = ~ 10 microsievert per year, or 1/240 of average background radiation of 2.4 millisievert. So a cigarette adds about one part in 1.7 million to a smoker's radiation exposure.

If counts count , reckoning polonium's place in the hierarchy of hazards is scarcely a two-pipe problem -- smoking a Camel scarely rivals hanging around Professor Proctor for an hour.

It's a great read.

(H/T Overlawyered)

Friday, December 08, 2006

Abject Disgust

That's one way to describe the feeling I get reading this.

Walter Olsen at Overlawyered makes a point of tracking the legion of outrages that arise out of the disability law field, especially in California, where the odious Unruh Act turns "victim's rights" into a weapon of extortion.

But unlike some of the more ridiculous examples (such as this), this fella David Allen Gunther (sounds like a serial killer, dunnit?) has used the California's preposterous Unruh Act as his vehicle to amass a personal fortune.

Here's the teaser to the article linked above:

With all the deviants running around these days, you can only imagine what could happen in an Orange County public restroom. David Allen Gunther, a fellow who knows depravity well, said he was traumatized by his Nov. 11, 2003, experience at the Anaheim West Car Wash. Gunther, who is wheelchair-bound, found a bathroom mirror mounted a few inches too high for him to “preen” himself. In a legal complaint, he insisted the experience caused him “anguish, anxiety, humiliation, anger, frustration, distress, embarrassment, apprehension and disgust.” He demanded that the owner of the business pay him $4,000. Would you believe that Gunther has the law on his side?

He did indeed get his money (and his attorney got his too). He's collected more than $400,000 over three years.

I recommend the whole article -- but I warn you, it may cause a paroxysm of anger.

Oh those wacky people in the California legislature.

Thursday, December 07, 2006

More Positive to Report on Wind Farms

Tasty Politics reports that an eight-year long study of Denmark's two largest wind farms is good news for Cape Wind. The report concludes that:

Danish experience from the past 15 years shows that offshore wind farms, if placed right, can be engineered and operated without significant damage to the marine environment and vulnerable species.

The comprehensive environmental monitoring programmes of Horns Rev Offshore Wind Farm and Nysted Offshore Wind Farm confi rm that, under the right conditions, even big wind farms pose low risks to birds, mammals and fish, even though there will be changes in the living conditions of some species by an increase in habitat heterogeneity.

The monitoring also shows that appropriate siting of offshore wind farms is an essential precondition for ensuring limited impact on nature and the environment, and that careful spatial planning is necessary to avoid damaging cumulative impacts.

Due consideration to limiting the impacts on nature together with positive attitudes towards offshore wind farms in local communities and challenging energy policy objectives at national and international levels mean that pros-
pects look bright for future offshore expansion.

The report did not address the alleged deleterious effects on multi-million dollar summer homes in Nantucket, Martha's Vineyard and Hyannisport.

No word on whether members of the Alliance for the Preservation of Nantucket Sound are yet being treated for apoplexy.

A Good Start

Deval Patrick made his first cabinet appointment yesterday, and it's a very good start (and a good sign as well).

Governor-elect Deval Patrick has named a seasoned state manager to fill one of his administration's most significant and powerful posts.

Leslie Kirwan, who has served in state government since the Weld administration, will become secretary of administration and finance, the state's top budget aide

Kirwan is now director of administration and finance and secretary-treasurer of the Massachusetts Port Authority, a position she has held since 1999. In that role, Kirwan leads an 80-person administration and finance team managing a $500 million budget.
Before joining Massport, Kirwan served as undersecretary and chief of staff at the Executive Office of Administration and Finance under Governor William Weld. She began her professional career at the Massachusetts Department of Revenue, becoming deputy commissioner for the Division of Local Services in 1991.

Kirwan holds a master's degree in public policy from the John F. Kennedy School of Government at Harvard University and received her undergraduate degree from Radcliffe College.

A&F Secretary is the toughest and most influential position in the cabinet. It will be especially so with Patrick having to balance a budget and deal with two legislative leaders who are used to calling the shots.

The fact that he turned to a seasoned Republican budget professional is an excellent sign.

Tuesday, December 05, 2006

Razing the Bar

The Massachusetts School of Law in Andover was founded in 1988 in order to provide a law school education at an affordable cost to many who could not otherwise afford the education. Its design and curriculum were influenced by the medical school educational model -- scholars, lawyers, and judges working side-by-side in educating students how to become practicing lawyers. The tuition at MSL is less than half of typical law school tuition.

In 1990, the Massachusetts Board of Regents of Higher Education authorized MSL to grant the Juris Doctor degree. MSL subsequently applied for American Bar Association approval while simultaneously challenging some of the ABA's accreditation standards, arguing that those standards are of questionable educational value, may violate antitrust laws, and needlessly increase tuition costs. MSL refused to comply with these standards, and the ABA denied approval of the school's accreditation. The lack of the ABA imprimatur means graduates are unable to take the bar exam in numerous states, preventing them from practicing law in those places. MSL has been fighting with the ABA since.

Among those standards were several related to student-faculty ratio. Under its standards in effect at that time, the ABA refused to count most of MSL’s full-time professors who practiced law, or any of MSL's 85 expert lawyers and judges who comprised MSL’s adjunct faculty members in computing its student-faculty ratio.

...In 1995, the Department of Justice and ABA reached a consent agreement -- prompted in part by a Massachusetts School of Law lawsuit that accused the ABA of antitrust violations -- in which the association agreed to overhaul its accreditation process....

...Yesterday, in their continuing clash with the ABA, school officials appeared before a US Department of Education committee in Washington, D.C, to denounce the association's "monopolistic" accreditation policies, which they say hinder minority, immigrant, and working-class enrollment. They also asked that the ABA be stripped of its right to accredit the nation's law schools.

Well it is certainly the case that MSL has picked a fight with the schoolyard bully, but I am rooting for them.

I have been a lawyer now for a quarter-century, and there are very few absolutes that I can assert about lawyers in general, but this is one of them:

The best lawyers that I have encountered during my career are those who came from meager or modest means and graduated from middle-tier law schools. Many of them are still paying off their loans, and are involved in areas of practice that are essential to the well being of society -- they work in the district attorneys' offices, the legal aid services, the public sector. They put out shingles in small towns are write wills for their middle class neighbors. And many of them run for (and win) public office.

I graduated from one of those top tier law schools. I received a superb legal education -- but it was book learning. When I graduated, it took me at least five years to learn how to actually be a lawyer -- what the practical application of my knowledge was and how to use it.

If MSL has designed a method of incorporating the practical into theoretical, and do it at a fraction of the cost, I think it behooves the American Bar Association to begin to think of its role in a different way. It ought to be enabling schools like MSL to make a legal education more accessible to people of modest means.

Who knows, perhaps in another fifty years, the public might actually respect the profession.

Friday, December 01, 2006

Searching for Scandal in All the Wrong Places

I'm a little late to the dance with this story in which the Boston Globe goes to enormous lengths to disclose that **GASP** Governor Romney's lanscape maintenance vendor **GASP** employed ***GASP** illegal aliens ENTIRELY WITHOUT HIS KNOWLEDGE!!!!

Read the story end to end several times, and answer the following multiple choice question (opponents of MCAS are disqualified from participating):


A. The owner of Community Lawn Services With a Heart doesn't check the immigration status of its employees; or

B. Mitt Romney's wife is kind to the lowliest of service workers; or

C. Illegal aliens are all around us (even ardent anti-immigrant politicians) without our knowledge; or

D. The Boston Globe does not want Mitt Romney to be President of the United States.

(answer below)

Here's what my perusal shows (all quotes directly from news article):

1. The Globe "received a tip in July alleging that Romney was using illegal immigrants to landscape his property."

2. Acting on this tip, the Globe assigned THREE reporters to investigate ("This story was reported by Jonathan Saltzman and Maria Cramer of the Globe staff and by Globe correspondent Connie Paige and was written by Saltzman").

3. Reporters staked out Romney's house and "observed the lawn service workers outside Romney's house more than a dozen times, sometimes as frequently as twice a week." (WOW, his grass grows so fast!!)

4. The Globe reporters "tracked down four current and former employees of the company at their homes in Chelsea and in Guatemala." All but one admitted they had been (or were) in the country illegally.

5. These workers said that although he had occasionally greeted them with a "buenos dias," Romney "had never expressed any curiosity about their status."

6. Two of Bill Clinton's nominees for attorney general were forced to withdraw when it was discovered that each had employed illegal aliens as nannies, and Michael Huffington lost his U. S. Senate race after making a similar admission.

7. "Ann Romney was friendly and brought [the workers] water on one particularly hot day."

8. Mitt Romney supports efforts to crack down on illegal aliens in this country.

9. When confronted at the Republican Governor's Association meeting in Florida (now why would they chose that venue to confront him??), Romney said "Aw jeez," and walked away.

I think the gist of this explosive blockbuster story is the following:

"The situation underscores the extent to which illegal immigrants permeate the US economy. Even as Romney travels the country, vowing to curb the flood of low-skilled illegal immigrants into the United States, some of those workers maintain his own yard, cutting grass, pruning shrubs, and mulching trees."

And there you have it. The Globe assigned three reporters to run down a tip iinvolving Romney. They spent weeks and weeks staking out Romney's home, tracking the arrival and departure of numerous hispanic-looking workers. They obtained these workers' identities, hunted them down in their homes -- even traveling to Guatemala to interview them. They assembled the "story" (such as it is) over a course of four months, and traveled to Florida to confront Romney at the Republican Governor's Association conference (his last as Chairman).

The previous post has to do with the subject of cynicism IN the media and cynicism OF the media.

It's an understatement that his story does nothing to abate the latter.

(Answer: C. If you are employed by the Boston Globe, the answwer is D.)

Pardon My Cynicism

An interesting story in today's Globe says a good deal about both Deval Patrick and the people who publish and edit Massachusetts newspapers.

Addressing the Massachusetts Newspaper Publishers Association, Patrick had the chutzpah to criticize unnamed reporters employed by them:

The former Clinton administration official also said some reporters "were openly contemptuous" of his campaign, and he suggested newsroom budget cuts have affected the quality of political reporting.

"Whether it was skepticism, distraction, or the cynicism so many of us try to pass off as sophistication, some of your reporters missed 'it,' " Patrick said. "And 'it' is a bedrock democratic principle: To make any difference in our common reality, people must see their stake again in their neighbors' dreams and struggles, as well as their own. Massachusetts government cannot move forward without Massachusetts people."

He then exhorted those who have raised cynicism to a Life Force:

"Put your cynicism down. Don't trivialize optimism and hope. It built this country. It built my life," Patrick told about 75 people attending the annual meeting of the Massachusetts Newspaper Publishers Association.

"Don't glorify the naysayers when the yeasayers have been at the center of progress since the beginning of recorded time," he said.

So what was the response from the audience?

The remarks were greeted by silence and most of the follow-up questions -- asked after prodding by Patrick himself -- focused on his support for a media shield law, as well as his defense of closed-door meetings with legislative leaders after pledging to run an open administration.

Heh heh. Translation: "Don't you dare touch our cynicism, and who the f**k do you think you are?"

I find it quite interesting that Patrick would go into a meeting of newspaper bigwigs and criticize the quality of their reporting, expecially since most of the newspapers endorsed him. As cynical as I am inclined to be about may politicians and events, I like the guy for having the guts to do that.

That said, I can understand how the crowd would choose silence when asked to respond to the notion that they somehow become cheerleaders for his new administration. As much disdain as I have for some of them, I still prefer that the news media be as tough on the new administration as intellectual honesty permits. Of course that last clause is a zinger, there is no such thing in the news business. (But that would tag me as a cynic.)

I must also say that if I were in the room and an editor asked Patrick about his "defense of closed-door meetings with legislative leaders after pledging to run an open administration," I might have been compelled to give the man a good slap, just for my own sanity. Talk about the height of cynicism and intellectual dishonesty. And the question's juxtaposition to that inquiring into his support for a "media shield law" suggests that someone's timing is a bit off.


This story reminds me of my one encounter with this esteemed group of powerful men (all men, at the time). When I was serving in the legislature, I had engaged in a bit of late-night budget hijinx.

At the time, the Boston Globe editors were rabid advocates for a budget amendment that imposed a tax on some sort of industrial waste in order to fund some Commission or other. It was a typical liberal goo-goo proposal that hadn't a chance in hell of being adopted, but the Globe was pushing, pushing, pushing for it and many members resented having to waste time on this amendment's debate in the middle of the night.

In order to inject some good humor into the debate, I scribbled out a proposed amendment to the amendment which deleted the entire text and substituted something else -- it proposed to REPEAL THE SALES TAX EXEMPTION ON NEWS PRINT AND INK (oh, you didn't know that newsprint and ink were not taxed?? How could that have happened!) and dedicated the sales tax revenue from those products to a new environmental fund to be known as The GLOBE Fund (GLOBE was an acronym for Greater Landfill Operations for a Better Environment).

I showed the amendment to Speaker Keverian, who was holding court at the Speaker's Rostrum. He read it, laughed out loud and said "gee, if I support this, I might I might get some bad press!"

The next day as the budget debate droned on further, I was visited by a fellow member who had teh day before attended the annual luncheon of the New England Newspaper Publishers Association. He was at a table at which the publisher of the Cape Cod Times (my district's paper of record) was also sitting. It seems that news of my proposed amendment had leaked out, and was being taken seriously.

Seriously, these fatheads thought the amendment was on the level. When someone at the table asked the Cape Cod Times publisher, "isn't he from your district," his response was "yeah, well don't worry, we'll take care of him."

With the member standing before me, I said "watch this," picked up a house phone and got the publisher on the line, so as simply to confirm that I had been given accurate information as to the facts, you see.

"Did you really say "we'll take care of him?" I asked.

It was the first time I had ever heard a newspaper man blubber, stutter and harrumph.

So you see how one can be cynical of those who are cynical of one who is not cynical.

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