T CERTAINLY sounded yesterday morning as if at least some members of the Supreme Judicial Court think the Legislature has precipitated a constitutional crisis by spurning the voter-approved Clean Elections Law.
''Here you have a clear constitutional violation'' by the Legislature for not appropriating money to implement Clean Elections, Justice John Greaney said.
Even the lawyer defending the case, Assistant Attorney General Peter Sacks, did not argue that the Legislature had acted properly, only that there was no sanction available outside of the political one at the ballot box.
''Haven't the people been to the ballot box?'' asked Chief Justice Margaret Marshall.
If the high court issues a ruling in this case that treads on territory the lawmakers feel is their own, they have only themselves - leaders and backbenchers alike - to blame.
Since Jefferson, it has been fundamental to American democracy that the people can and should change their frame of government from time to time. In Massachusetts, reformers did just that. When the Legislature failed to act, they offered Clean Elections to the voters, who approved it nearly 2-1 in 1998. The Massachusetts Constitution gives the Legislature one last chance to trump popular will: It may repeal an initiative law. But, says the constitution, it must either repeal it or fund it, even if that means raising taxes.
At yesterday's hearing, several justices seemed to view the Legislature's stubborn inaction with understandable fury. ''There could not be a clearer constitutional mandate that a law be funded no matter what,'' said Justice Martha Sosman.
Yet there was evident uncertainty over what to do. To preserve the separation of powers, courts are reluctant to make direct orders to legislatures to appropriate money. In fact, the state Office of Campaign and Political Finance - not the Legislature - is the official defendant in this case. Marshall asked the plaintiff lawyer, John Bonifaz of the National Voting Rights Institute, whether an order to the office wouldn't be trying to do ''by the back door what you cannot accomplish by the front door.''
Still, the justices seemed frustrated with the idea that they are powerless to act. And there is urgency. Gubernatorial candidate Warren Tolman has qualified to receive $811,050 this Friday.
The court could order the office to distribute funds and see what the Legislature does. In other cases, courts have ordered that jails and mental institutions be made habitable, without ordering appropriations directly. The SJC could order the governor's secretary of administration and finance to come up with the money. Or it could also stop the 2002 elections until Clean Elections is implemented.
Any of these would be drastic action, necessitated by the Legislature's drastic inaction.
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