A FEW QUESTIONS FOR JOHN BONIFAZ

“A Few Questions For…”  is an occasional feature of The Indy, aimed at helping our readers get to know the folks who are making things happen in our town.   We’ll be featuring members of our town government, key town employees, people who lead civic organizations, civic activists, local educators, prominent volunteers, and residents who are not necessarily well known.  This week, we feature Amherst attorney and voting rights activist John Bonifaz.

Amherst attorney John Bonifaz is a constitutional lawyer and national leader in fighting for voting rights and our democracy.  His organization, Free Speech for People (https://freespeechforpeople.org) was an early leader in arguing for the necessity of impeaching Donald Trump and for organizing around that cause.  When The Indy spoke with John back in June we were interested in hearing how the struggle for impeachment touches our lives here in Amherst and about how he (or we) can go about connecting our local lives and actions to national (or global) issues that shape our lives. Since that time, the question of impeachment has only gained more resonance.

At about the same time as our conversation with John, he did an interview on the podcast Gaslit Nation with Sarah Kendzior, an expert on authoritarian regimes. You can find that interview here.

INDY:  Would you tell us a little but about your educational and work background?

BONIFAZ:  I graduated from Brown University in 1987 and from Harvard Law School in 1992.  At Brown, I majored in development studies – an interdisciplinary program that focused on the developing part of the world and combined economics, sociology and political science.  I spent my junior year in India focusing on a Ghandian village development project and then, for my senior thesis in college, compared that project to the Freedom Quilting Bee of Wilcox County, Alabama, a African-American women’s cooperative started during the Civil Rights Movement. I am a constitutional attorney focusing on democracy and voting rights issues.  I’ve been doing this work for 25+ years.

INDY: How long have you lived in Amherst?

BONIFAZ: I grew up in Southeastern Pennsylvania. In 2007, my wife, our daughter, and I moved to Amherst so we could be closer to my family who live in this area.

INDY: What do you like best about living in Amherst?

BONIFAZ: I love Amherst’s open space and diversity of thinking that doesn’t feel constrained .

INDY: You are President and Co-Founder of Free Speech for People (FSFP).  Can you tell us about the work that you do?

I co–founded FSFP with Jeff Clements, who served as Assistant Attorney General for Massachusetts.  We founded it in 2010 on the day of the US Supreme Court’s ruling in Citizens United which, as you know, equates corporations with people and assigns them political speech rights. It swept away a century of precedent with respect to corporate money in our elections.  Our focus for the last nine years now has been on challenging big money in politics and putting a check on corporate power and on corruption in government.   And after the 2016 election we began addressing the unprecedented corruption coming into the White House with President Trump’s refusal to divest from his business interests. which placed him on a collision course with the two anti-corruption emoluments clauses of the Constitution. And indeed, the day he took the oath of office we saw him in direct defiance of those two constitutional provisions.

INDY: I was at your original meeting that you held at the BlackSheep in 2017 to promote impeachment.  It seemed like at the beginning there was a groundswell of grassroots support.

BONIFAZ: At the beginning there was a lot of support.  We had 17 communities, including Amherst that passed supporting resolutions and we reached one million signatures supporting impeachment pretty quickly.   But then there was kind of a resignation that set in – a kind of acceptance that this was the kind of behavior that we were just going to have to learn to live with. Nonetheless, since then we have expanded our call for impeachment and brought in many allies, and we firmly believe that this president must be held accountable and that the way to do this is through the impeachment process.

INDY: So, initially your approach was grassroots mobilization?

BONIFAZ: That’s still our approach.  Initially, our limited capacity required us to identify partners who could help us in this work.  We’re a small organization with a small staff.  For example, we don’t have a field organizing staff and we didn’t have the kind of resources necessary to continue to press the issue at the national level – if we had, we could have easily gotten to over 100 communities around the country supporting our resolution, but we just couldn’t sustain that level of engagement on our own.  Since then Tom Steyer has entered the picture  (in October of 2017) with his Need to Impeach campaign, that has created a whole new source of energy.  To date he has generated more than 8 million signatures to his organization’s petition.   And then recently – other groups, like MoveOn and Indivisible and CREDO Action have joined the effort.

INDY: At this point, what’s the role of FSFP in the drive to impeach?

BONIFAZ: We are still very involved in taking on big money in politics and confronting unchecked corporate power and we still bring our legal expertise to the broader impeachment movement.

We co-authored a book (with Ron Fein and Ben Clements) which is entitled: The Constitution Demands It and which lays out eight of the legal grounds for impeachment that we identified and three more emerged after the book came out.  We think that those legal grounds that we spelled out are helpful to the broader activist work that is taking place.   We delivered (in collaboration with Need to Impeach) copies of our book to every member of congress and we, in collaboration with a bunch of other groups, delivered to Congress 10  million signatures calling for impeachment.  So we’re seeing a lot of coalition support right now.

INDY: When you were pushing local resolutions – was Amherst one of the first?

BONIFAZ: Amherst was one of the first.   It originated out of the Black Sheep event and a bunch of local people joined together to get the necessary signatures and put it on the town meeting warrant and promote a healthy discussion within the town and amongst town meeting members.   We had a lot of support from Amherst Town Meeting.

INDY: So where is this going?  What’s your assessment of where things are right now? 

BONIFAZ: Well the polls have varied. Some have shown only 30% support for impeachment, some a lot more.  I think that where we are is where we were back in January 2017 – that is, impeachment will have traction when we the people demand it.   Elizabeth Holtzman – a former member of congress from New York City and a member of the House Judiciary Committee during  the Watergate era,  and someone who voted for articles of impeachment for Richard Nixon –   she has been explicit that those impeachment proceedings did not commence because of a special prosecutor’s report or some kind of smoking gun evidence but because people demanded it and I think that at the end of the day that is what will have to happen if this is going to go forward – that people will have to rise up and demand that their members of congress uphold their oath of office and start impeachment proceedings now.  We have to recognize that we currently face real resistance in the House in Nancy Pelosi’s leadership.  She has said more than once that she does not see impeachment as something that is worth pursuing.  She says it is divisive and it requires bipartisan support to succeed. 

All of those arguments, if they had been adopted by the House leadership in 1973-74, it would have meant that the process that led to Nixon’s leaving office never would have happened and he would have served his full term.  There was not bipartisan support at the start of those proceedings and you could say that impeachment was divisive then.  And right now our country is getting more polarized with the president acting as divider in chief.  And keep in mind that 30% of the public still supported Nixon when he took that famous helicopter ride after he resigned the presidency.  We don’t need a 100% consensus in the country on whether the president should be held accountable for his abuses of power and his violation of the public trust.  We do need some people to rise up and demand that Congress do its job.

INDY: Do you have any sense of how we can get people to rise up – to become engaged, to move this process forward?

BONIFAZ: I think that we have to further educate ourselves on the threat that this president poses on a daily basis to our Constitution and our democracy.  Read the Mueller Report!  Beyond that, take a look at the grounds for impeachment that we have spelled out on our Impeachment Project web site.

The cruel and unconstitutional imprisonment of children at the border, separating them from their families alone could be grounds for impeachment.  I think we have to recognize what’s at stake.  Democracy is at stake. And we can’t wait for the 2020 elections to resolve this.  There are plenty of scholars of totalitarianism that can show you that autocratic regimes routinely hold sham elections.  The fact that we are going to hold an election and trust that it will be free and fair – remember, this president is very dangerous – that is not a process for holding a president accountable.  The framers explicitly put into the Constitution the impeachment clause for this very kind of crisis that we are now facing.  And we need to use that power.

INDY: Given the normalization of Trump’s assault on democracy that you talked about earlier – how do we get people to rise up and make the necessary demands.  If babies in cages won’t get people to take action, what will?

BONIFAZ: Well again,  people seem to be looking at/to the election cycle as the solution.  I’m not saying that we shouldn’t pay attention to elections or that we shouldn’t exercise our right to vote.  We should.  And we should be engaged in the electoral process.  But I do think that the work that we need to be doing now is to address explicitly the direct and dangerous threat that we face on a daily basis.  You know,  there are people who say,  there’s just not enough time (before the election in NOV 20).  But we have overwhelming evidence of the President’s abuses of power  for issuing articles of impeachment.  And some might say – but the Senate would never convict – and you know – we have multiple responses to that.

1. Senator Warren has said that we need to force this vote in Congress – so that every member will be on record on whether they will hold the president accountable for his crimes and whether they support the Constitution and the rule of law.  And those who do not support holding the president accountable – we need to force them to run on that record.

• Frank Rich (former New York Times reporter) wrote in New York Magazine that it’s a fiction that during Watergate there was substantial Republican opposition to Nixon once his criminal activity was revealed.  Most Republicans stuck with Nixon to the bitter end – even after the smoking tape evidence came to light.  The votes to convict were certainly not there at the beginning and so the argument that we can’t proceed until we have the votes lined up goes counter to that history.

• When we start the impeachment process ,the public will become educated and so will the senators and I think it is not outside the realm of possibility that GOP senators will see their own chances for election diminished by continuing to defend the president.
  
  
• As Senator Warren reminds us, this is a point of principle over politics.  We can’t be looking to polls to tell us what is the right thing to do.  

We need to issue the charges now.  We need to start the process with an impeachment inquiry that will bring to light the evidence of Trump’s abuses of power.  We need to be clear that this kind of conduct REQUIRES that kind of process.  If we just wait for the election without any impeachment hearings,  we will be setting a very dangerous precedent for future administrations regardless of whether Donald Trump is on the ballot.

INDY: You sound pretty confident that those arguments are going to win the day.

BONIFAZ: Let me say that I am confident that we are on the right side of history.  I’m not going to predict that we will prevail, but I am confident that we need to be doing this and we need to be standing up for our Constitution.

INDY: So what about us folks far removed from the struggle in DC – who are deeply concerned but don’t know what to do?  You suggested that we can educate ourselves about the constitutional threat and that seems like a good place to start.  What else?

BONIFAZ:  Here in Amherst –people need to go to our member of Congress- Jim McGovern and urge him to get behind Rep. Rashida Talib’s resolution to start formal  impeachment proceedings.   He’s been quiet on this and he needs to be asked by his constituents to step up.  He voted in January 2018 for Rep. Al Green’s articles of impeachment (along with 65 other members of congress) to advance those articles.  So what has changed?   The evidence of malfeasance hasn’t gone away – indeed it has piled up.  The change is that he is now chair of the rules committee and my understanding is that chairs of committees have lined up behind Speaker Pelosi who opposes impeachment.  So he needs to be asked – are you following Speaker Pelosi’s wishes and no longer supporting the position you took in  2018?  I’ve been with Rep. McGovern on lots of issues but on this one he’s missing in action and his constituents need to press him to step up.

This is a concrete thing that we can do locally.  Show up at his town meetings. Ask him where he stands and ask him to explain why his position has changed. Let him know how you feel and why you think this matter is urgent.

[Editor’s note: since this interview took place, Rep. McGovern has voiced his support for an impeachment inquiry and joined Bonifaz and others at a Northampton rally on June 15 as part of a national day of action for impeachment.  Bonifaz introduced Rep. McGovern at that event.]

We can also encourage people outside of our district to reach out to their own members of congress.  State Senator Jo Comerford introduced a resolution in the legislature that we  helped to draft that would put Massachusetts on record as the first state calling for impeachment.  Having a state legislature on record would serve to move this forward as well.  State Rep. Mindy Domb is on board. We can get our friends elsewhere in the state to work with our reps and their reps to advance this resolution.

And people can join us at impeachmentproject.org.  They cansign up to get updates and get informed.

But the first thing that we need to do when we want to create change is to try to imagine a different reality.  And we don’t need the support of the majority of people around us but we do need to identify those colleagues, friends and family, who are willing to stand together.  You know – a small group can spark a broad movement.

When we started this in January 2017, we didn’t have a lot of people behind us and then all of a sudden we had all of those petition signers and now we have many national organizations on board.  What that tells me is that this is a fight that requires uniting people and it requires some people, even a small group, standing up at the outset, even if it doesn’t feel like a national thing.

INDY: You were the founder of the National Voting Rights Institute (NVRI) and I believe that you won a MacArthur genius grant for that work.

BONIFAZ: Our primary effort at NVRI was to identify campaign finance as a voting rights issue of our time.

INDY:  There’s a whole gang of writer/researchers out there (e.g. Ari Berman, Jenny Cohn,  Marilyn Marks, ) who argue that free and fair elections are gravely endangered,  and who have documented how the triple threats of aggressive voter suppression, foreign interference, and hackable voting machines became a reality in 2016. They argue that there is a slim chance that we will have free and fair elections in 2020 without dramatic intervention.  

BONIFAZ: I share their concern and this is a danger that we have to be addressing.

Let me say first that one thing that we don’t do in this country is verify our elections except for a few states that have embraced strong mandatory audit laws.

For the most part – we don’t verify results.  What that means is that we end up trusting the machine tallies that get reported right after the polls close.  We get these reports within minutes of the polls closing whereas in other democratic countries like Canada, where they hand count paper ballots, they sometimes have to wait days to learn the outcome.  And so we have this culture of the 24 hour news cycle where we have to know instantaneously who has won.  Now, machine tallies can be correct.  And they can also be incorrect.  The reason why you verify is the same reason that you verify the accuracy of your bank deposit.  We routinely verify all kinds of transactions to insure that they are correct but we don’t verify election results at the federal level and indeed, not very commonly in state elections either.

So, in order to ensure that we are accurately and fairly counting every vote,  we need a verification process.  Now, what does that mean in terms of the voting technology that we use?  It means that we can’t be using these junk machines that allow for only electronic voting.  Happily, these are not used in Massachusetts but they are used in several swing states.  What is ideal is hand marked paper ballots which can then be properly audited or recounted.

Michigan has an auditable paper ballot and I was a legal advisor to the recount there in 2016.  But the GOP dominated state supreme court shut it down, stopping the vote recounting.  I’m not saying that a completed recount would have changed the electoral college outcome but let’s be clear – it was a 10,000 vote margin that gave Trump Michigan’s electoral votes and had we been allowed to complete the recount and had it changed the outcome, then many folks would have wondered – what other results were wrong?

We need a paper ballot based system in every state.  We need rigorous audits of the votes. And we need a new culture that emphasizes getting it right rather than getting it instantly.  This is doable in every state.  (Editor’s Note: The House passed an elections security bill on June 27 that would require, among other things, the use of paper ballots in federal elections.  According to Republican sources, the bill has little chance of being taken up in the Senate or, if passed, being signed by President Trump).

INDY: Why do you think that our legislators are so uninterested in election security? (At the time of this interview only Oregon Senator Ron Wyden, had taken a stand on election security.)

BONIFAZ: I think that people who have raised this issue have often been viewed as being part of a tin foil hat crowd – crank conspiracy theorists.   But every reputable cyber security expert who has studied this has said that the threats to election security are very real and need to be addressed., That our existing voting systems are frighteningly hackable and unreliable and that we need paper ballot based, auditable systems. We now know that there was a massive effort on the part of a foreign government to interfere with our election.  And the Mueller report chose not to go into this question of the attack on our election infrastructure.

And even after the last presidential election with all of its craziness, we had former constitutional law Professor and and then current-President Barack Obama assure the nation that our elections are secure and that everyone’s vote was counted.  And we had assurances from several authorities that to the extent that there was interference, that our intelligence community would take care of it.  But in fact, nothing has been done.  Even though no forensic analysis has yet been done on the 2016 election, we are assured that nothing significant happened that could have affected the outcome.   I can’t say confidently that we know what the real results were.

I have heard the argument made in some quarters that talking about this issue suppresses the vote – that if people think that there is chance that the process is rigged that they won’t bother.  But the studies we have suggest that this is not true.

I’m not going to suggest that getting more people to go out and vote is sufficient to overcome these problems.  But we need to do that too.

I ran for Secretary of State in Massachusetts in 2006 on a voter bill of rights platform advocating a broad set of voting reforms, some of which have been adopted in other states, like same day registration.  But you know – some folks in power – Democrats and Republicans alike, don’t like same day registration  (not all but some) because it brings out new voters who they haven’t targeted and whom they don’t know and don’t trust.  It’s hard to target voters who register on election day so politicians don’t like it.  But when Jesse Ventura was a surprise winner of the governorship in Minnesota in 1999 he was helped greatly by same day registration.   We need these kinds of reforms and not the new restrictive voter-id laws that we are seeing.

INDY:  In recent months we have seen a tidal wave of  crazy voter suppression laws.  e.g.  New Hampshire is trying to prevent out of state college students from voting. And Tennessee has proposed a law that prohibits transporting more than one non-family member to the polls.  These new laws are clearly unconstitutional.  But can they put this stuff into effect and then run out the clock for 2020 while the challenges are tied up in the courts?

BONIFAZ: That’s why we have injunctions –to stop rogue legislators from preventing people from voting.  And ultimately it will have to be resolved by the judicial branch as it has been historically,  But we will also need to be vigilant at the grass roots level and forceful in calling this out.  

Here in Massachusetts we can be a model of democracy for the country and I appreciate that we are seeing some positive voting reforms.  But we could be doing a  lot more. For example, in Massachusetts, voters passed public funding of  state elections in 1998 but House Speaker Tom Finneran (D) rejected the voter mandate.  I ended up being the lead counsel on the case and brought it before the State Supreme court which told the legislature that they must comply with Article 48 of the state constitution and that they must either fund or repeal what the voters passed.  Finneran then completely ignored the ruling. We came back into court and they allowed us to seize real property from the state to fund state elections and we took funds via sales of property from the lottery commission and other sources and Jamie Eldgridge [D), (state senator, Middlesex and Worcester District] and Warren Tollman [D), (former state representative, 32nd Middlesex District, and former state senator, Middlesex and Suffolk District] were able to run on these public funds for the Massachusetts House and the Massachusetts governorship respectively. And then, afterwards,  Finneran asked the legislature to repeal the law and they did.   Similar laws now exist in some other states and we should be trying to bring this back in Massachusetts.

And here’s something that hasn’t been tried in any state except Minnesota (in 1990) and a way that we can lead.  Let’s publicly fund our congressional elections in Massachusetts as well.

INDY.  Thanks so much.  Is there anything else you want to share?

BONIFAZ: At FSFP we remain passionate about supporting a 28^th amendment to the Constitution that would overturn Citizens United and reclaim our democracy.   We need to end this regime of unlimited campaign spending and the idea that corporations are people with constitutional rights. We have proposed two amendments to the Constitution, The Democracy for All Amendment which would end big money dominance of elections and The People’s Rights Amendment which overturns the notion of corporate personhood.