Direct Legislation by the People
Some definitions.
The Initiative and Referendum: What they are.—The machinery of direct legislation consists of two political devices which usually go together and are known as the initiative and referendum. By the initiative is meant the right of a stated percentage of voters in any state or other political division to propose a law and to require that if this proposal is not forthwith adopted by the regular law-making authorities it shall be submitted to the people for their decision at the polls. The initiative usually covers constitutional amendments as well as laws. To put it in less technical language, if anyone believes that a new law or ordinance should be passed, he draws up the law or ordinance in such form as he desires; then he gets a certain number of voters to sign a petition asking for its passage. If the legislature enacts it, well and good; if it does not enact it the question whether the law will be adopted goes on the ballot for the voters to decide.
The referendum, on the other hand, is an arrangement whereby a measure already passed by the legislature or city council may, under certain conditions, be withheld from going into effect until the people have had an opportunity to accept or reject it at the polls. The conditions usually are that a certain number of voters shall present a petition asking that the measure be withheld from going into force. The referendum, as a rule, cannot be invoked in the case of emergency measures.
Their Progress in America.—It is only about a quarter of a century since the initiative and referendum, in this form, made their appearance in America, the first state to establish them being South Dakota in 1898.[[30]] Other states soon took up the idea and today nearly half the entire number of states have made provision for direct legislation in one form or another.[[31]] |Spread of direct legislation.| From the states the movement spread to the cities, a large number of which now have provisions for the initiative and referendum inserted in their charters. The extension of the system to the national government, by means of an amendment to the constitution, is now being urged by some organizations, including the American Federation of Labor.
Reasons for this rapid extension.
How is the rapid spread of this movement for direct legislation in the United States to be accounted for? Two reasons for it, at least, may be given. One is the decline of popular confidence in lawmaking by legislators. The work of the legislatures in many of the states, and of the city councils in most of the cities, has been unsatisfactory to the people on a good many occasions. It has given vogue to the idea that the people themselves could not do much worse and might do a great deal better. The second reason may be found in the habit of waiving responsibility which many legislatures and city councils have acquired in recent years. When difficult questions come before legislatures, the legislators frequently find an easy solution, so far as they themselves are concerned, by “putting the matter directly up to the people”. In other words they agree to place the questions on the ballot at the next election. In many states this practice of passing measures with a “referendum clause” has become very common. It has paved the way for direct legislation on a wider scale.
The Initiative and Referendum in Practice.—In actual practice the initiative and referendum do not provide a simple and easy means of making laws. Their use is hedged about by all sorts of formalities and conditions. In no two states are these conditions exactly alike, but in a general way the practical workings of direct legislation are somewhat as follows:
The petition.
As the first step, those who desire a new law make a draft of it in writing. Then they write out a brief petition to accompany it and obtain as many signatures as they can. The usual requirement is that a certain percentage of the qualified voters must sign the petition before it will be accepted by the authorities. These signatures are secured by holding meetings, or by a house-to-house canvass, or by placing copies of the petition in banks, stores, and other public places where voters can sign them. When enough signatures have been obtained, the petition, accompanied by the draft of the proposed law, is presented to the proper official at the state Capitol or city hall and this official checks the names with a copy of the voters’ list. |The scrutiny.| If he finds that all the requirements have been fulfilled, he endorses on the petition a statement to this effect and makes provision for placing the question on the ballot at the next election or, in some cases, at a special election held for the purpose. Meanwhile, the legislature or city council may enact the measure, in which case the question need not be placed on the ballot. |The voting.| To inform the voters concerning the various initiative measures which are to be voted on, some states have provided that a pamphlet shall be prepared and mailed to every voter previous to the election. These pamphlets contain the texts of the proposed laws and also, in some cases, a summary of the arguments for and against each proposal. At the election the voters mark their ballots with a cross opposite the words Yes or No and the proposed law is adopted or rejected in accordance with the will of the majority.
In the case of the referendum a petition is also drawn up and a designated number of signatures obtained. When enough signatures have been secured, usually the same number as is required for the initiative, the petition is presented, checked up, and certified in the same way. The law in question, although duly enacted by the legislature, is then withheld from going into effect until the voters ratify it at an election.
In some states the initiative and referendum have been used quite freely; in others hardly at all. In Oregon, during the decade 1906-1916, no fewer than ninety-one measures were submitted to the voters at five elections; in Massachusetts only four measures have been initiated by petition in five years. Much greater use has been made of direct legislation in the Far West than in the East.
The arguments in favor.
Merits of Direct Legislation.—The reputed merits of the initiative and referendum may be summed up under four heads. 1. It makes government more democratic. In legislatures the influence of some class, section, or partisan element among the people has often determined the nature of the laws. By the use of direct legislation the whole people can make their will effective. 2. It has an educative value. People who are called upon to vote upon measures will learn something about them before going to the polls. When the legislators alone make the laws, the individual voter takes no interest in the lawmaking. But when the questions go on the ballot there is a general public discussion of the arguments for and against. In this way the whole body of the voters becomes informed on public problems. 3. It gives the ordinary citizen a chance to make his influence felt. The legislature, in doing its work, does not hear much from the plain man who attends to his own business. It hears chiefly from the “vested interests”, the corporations, and capitalists on the one hand, or from labor organizations or the farmers on the other. It is also subjected to pressure by politicians and party leaders. But a considerable part of the population is made up of men and women who are neither capitalists, union workers, nor politicians. Direct legislation gives this silent section of the electorate a chance. 4. It keeps legislative bodies on their good behavior. The initiative and referendum are not intended to supplant lawmaking by legislatures. Most of the laws will continue to be made by the old process. Direct legislation is merely a remedy in the hands of the people for use when the regular lawmaking bodies fail to carry out the popular will. Knowing that the voters have this weapon ready for use, the legislators are more careful about what they do. They know that an appeal may be taken to the voters and their own decisions overturned. This is an incentive to better work on their part. Hence the initiative and referendum will really strengthen rather than destroy our system of representative government.
The arguments against.
Defects of Direct Legislation.—But there are arguments on the other side as well; and these also can be arranged under four headings. 1. Direct legislation weakens the civil rights of the individual. These rights are embodied in the state constitutions for the purpose of preserving them. But if a majority of the voters can change these constitutions at any time, there is no longer any distinction between constitutions and laws. This means that there is no special protection for the rights of property, for free speech, or for freedom of worship. A majority can ride rough-shod over a minority at any time. 2. Direct legislation is usually the work of a majority in name only. Not more than eighty per cent of the people regularly cast their ballots on election day; the proportion is often much smaller. Of those who go to the polls many do not vote on all the questions. The result is that measures are frequently ratified by the votes of only thirty or forty per cent of the whole electorate, in other words by a distinct minority. The alleged “rule of the majority” thus becomes a fiction, not a fact. 3. Direct legislation results in appeals to public prejudice and leads to demagogism. When measures are submitted to the people the discussion is not confined to the merits of the proposed laws. The supporters and opponents alike appeal to the prejudice and the self-interest of the voters. The demagogue uses his opportunity to the fullest extent, thus inflaming bitterness between different classes among the people. There is no opportunity for calm deliberation or compromise as in the legislative halls. The voters can only say Yes or No. They must take the measure as it stands or reject it entirely. As a rule, moreover, the man who is ready to say Yes or No to any public question can be set down as one who has given very little thought to the subject. 4. Direct legislation tends to break down the whole system of representative government. It divides the responsibility for lawmaking, encourages the election of less efficient representatives, and places upon the people a task which they cannot intelligently perform. The voters will not, and cannot, fully inform themselves about the merits and defects of ten, twenty, or thirty different questions on the ballot. It is absurd, the opponents of direct legislation declare, to submit a long list of questions to the voters when thousands of these voters are not even able to read or write.[[32]]
Which are the stronger?
The Relative Weight of these Arguments.—The fore-going paragraphs give the arguments, both for and against direct legislation, as they are commonly put forth by the two sides. The supporters of direct legislation are inclined to magnify its merits; the opponents are equally prone to overstate its defects. Due allowance should be made for this in weighing their respective arguments. Direct legislation has not put an end to the power of political bosses or destroyed the party system or made all the laws righteous. On the other hand it has not led to lawmaking by demagogues or impaired the fundamental rights of the citizen. Laws passed by means of the initiative and referendum have been, on the whole, no better and no worse than laws passed by legislatures. The strong probability is, if one may venture a prediction, that less use of direct legislation will be made as time goes on. This does not mean, however, that the system will be valueless. It still remains a highly important weapon of last resort which the people can use if they need it. At any rate no one need hesitate to make up his own mind as to the relative merits and defects of the initiative and referendum, for he will find himself in pretty good company whichever side he takes.
The Recall.—The recall is the right of a designated number of voters to demand the immediate removal of any elective officeholder and to have their demand submitted to the voters for decision. A petition for removal is drawn up and circulated for signatures; when enough signatures have been obtained it is presented to the proper authorities who thereupon hold an election to decide the matter. The petition usually states the reasons for demanding the officeholder’s removal before the expiration of his term. If a majority of those who vote on the question are in favor of the removal, the officeholder vacates his post at once; if they reject the demand for a recall, he continues in office. Provision for the recall was first established in Los Angeles (1903), and during the past twenty years it has been adopted in many cities in different parts of the country. Ten states have also provided for the recall of elective state officers. Several city officials have been removed at recall elections, but only one state officer has yet been ousted from office by this procedure.[[33]]
The purpose of the recall is to ensure the complete and continual responsibility of public officials to the people who have elected them. It enables the establishment of longer terms of office without incurring the danger of autocracy on the part of officeholders. On the other hand, the recall is a weapon which may easily be perverted to wrongful use. If attempts were made to oust an officeholder whenever his work gives offence to any influential element among the voters, the recall procedure would soon become an intolerable nuisance in that it would be continually bringing the people to the polls. It would likewise deter independent and capable men from accepting office at all. But as a matter of fact the recall has not been widely used. For the most part the people have held it in reserve for emergencies. It is like a fire-escape on the outside of a building, not to be used at all under ordinary circumstances, but exceedingly valuable when an emergency comes.
General References
James Bryce, Modern Democracies, Vol. I, pp. 151-164 (Public Opinion); Vol. II, pp. 417-434 (Direct Legislation by the People);
A. L. Lowell, Public Opinion and Popular Government, pp. 113-232 (Methods of Expressing Public Opinion);
A. B. Hart, Actual Government, pp. 270-273 (Appointing Power); 276-294 (Civil Service);
W. B. Munro, Government of the United States, pp. 501-521 (Direct Legislation and the Recall);
E. M. Phelps (editor), Initiative and Referendum (Debaters’ Handbook Series);
Delos F. Wilcox, Government by All the People (The Arguments in Favor), pp. 104-128; 149-163;
Arnold B. Hall, Popular Government (The Arguments Against), pp. 120-143.
Group Problems
1. What is public opinion? How is it formed? Influence of the press. News columns and editorials. The press and propaganda. Influence of advertisers. The large measure of independence in the press. Resolutions of organizations. Communications to legislators. Relative importance of the various channels of public opinion. References: A. V. Dicey, The Relations between Law and Public Opinion in England, pp. 17-47; James Bryce, American Commonwealth, Vol. II, pp. 251-266; Ibid., Modern Democracies, Vol. I, pp. 92-110; 151-164; A. L. Lowell, Public Opinion and Popular Government, pp. 4-56; G. H. Payne, History of Journalism in the United States, pp. 347-359 and passim; Arnold B. Hall, Popular Government, pp. 25-44; Walter Lippman, Liberty and the News, passim.
2. The initiative and referendum in their practical workings. References: J. D. Barnett, The Operation of the Initiative, Referendum and Recall in Oregon, pp. 101-125; Illinois Constitutional Convention (1920), Bulletins, No. 2; Massachusetts Constitutional Convention (1917-1918), Bulletins, No. 6; A. L. Lowell, Public Opinion and Popular Government, pp. 169-239; D. F. Wilcox, Government by All the People, pp. 229-320; Arnold B. Hall, Popular Government, pp. 120-143.
3. The civil service system: its progress, aims, and methods. References: A. B. Hart, Actual Government, pp. 276-294; C. A. Beard, American Government and Politics, pp. 222-230; P. S. Reinsch, Readings in American Federal Government, pp. 683-702; W. B. Munro, Government of American Cities, pp. 271-290; C. R. Fish, The Civil Service and the Patronage, passim; J. T. Young, The New American Government and its Work, pp. 592-608.
Short Studies
1. The responsibility of public officials. F. A. Cleveland, Organized Democracy, pp. 394-409.
2. The function of a representative. J. W. Jenks, Principles of Politics, pp. 77-84; J. S. Mill, On Representative Government (Everyman’s Library), pp. 202-218; 228-241.
3. The election vs. the appointment of public officials. John M. Mathews, Principles of American State Administration, pp. 173-190.
4. The spoils system. James Bryce, American Commonwealth, Vol. II, pp. 136-145; James A. Woodburn, Political Parties and Party Problems, pp. 254-265. See also W. D. Foulke, Fighting the Spoilsmen, passim.
5. Training for public service. W. H. Allen, Training for the Public Service, pp. 164-200.
6. How civil service tests are given. L. F. Fuld, Police Administration, pp. 75-97.
7. The public service as a profession. A. L. Lowell, Public Opinion and Popular Government, pp. 264-305; W. H. Allen, Training for the Public Service, pp. 164-181; E. A. Fitzpatrick, Experts in City Government, pp. 71-104.
8. The recall of public officers. Arnold B. Hall, Popular Government, pp. 203-241.
Questions
1. How many “organs” of public opinion can you name? How does each exert an influence? Which one do you consider the most influential?
2. Is public opinion always the sentiment of the majority? If it is not, explain why. Give a concrete illustration.
3. Do you agree with Edmund Burke’s ideas as to the proper function of a representative?
4. When the question of woman suffrage was before the United States Senate, and only one additional vote was needed to pass it, a certain senator declared that while he was personally in favor of granting the suffrage to women the people of his own state had just voted against the proposal and he therefore felt bound to follow their judgment. Was he right or wrong in taking that attitude?
5. Make a list of the administrative officers of your state and community, indicating which ones should be elected and which appointed. Can you think of any proper exceptions to the rule that all administrative offices requiring skill or experience should be filled by appointment?
6. What arguments were put forward in behalf of the spoils system?
7. What sort of civil service tests ought to be applied in selecting persons for the following positions: truck-and-ladder driver in the fire department; gardener in the public park service; bookkeeper in the office of the state treasurer; member of the United States life-saving service; railway-mail clerk; analyst of food and drugs; inspector of wires and lamps; woman police officer; probation officer; draftsman in the state highway department.
8. In a city of 100,000 population what positions would you exempt from civil service rules?
9. Is good government more important than popular government? Can a government be both democratic and efficient? Do you regard appointments by competition as undemocratic? Why or why not?
10. Work out a plan by which promotions in the police department could be made under the merit system (consider the possibility of giving credits for punctuality, acts of courage, number of arrests, etc., and of making deductions for neglect of duty, etc.).
11. What is the strongest argument for direct legislation and what is the weakest? Which argument on the other side impresses you the most and which the least?
12. Is it more dangerous to subject judges to the possibility of recall than other officials?
Topics for Debate
1. A congressman should obey his conscience rather than his constituents when he cannot obey both.
2. Heads of state and city administrative departments should be chosen under civil service rules.
3. The initiative and referendum should be extended to national lawmaking.
CHAPTER VII
SUFFRAGE AND ELECTIONS
The purpose of this chapter is to explain who have the right to vote, how the voters nominate public officials, and how elections are held.