Unpopular government in the United States

by Albert Martin Kales

Of course, in extraordinary and unusual situations, when the electorate is organized and led against some attempted act of the extra-legal government, the initiative and referendum may be used to defeat and discomfort the latter. But that is not a normal situation. It is the extraordinary and unusual occurrence. The real effect of the initiative and the referendum on the extra-legal government cannot be determined with reference to abnormal circumstances. It must be looked at in connection with normal everyday events. The usual and normal situation is that of political quiet. The extra-legal government governs from day to day and from election to election. The placing on the ballot at any election of a number of acts to be initiated or approved on a referendum adds more burdens to the already greatly overloaded voter. He must now read over the acts, study their details, and understand the ultimate effect or possibilities of certain clauses. The legislation to be considered by the voter may be of relatively small importance to the majority of the voters, or the desire of the majority for the general object may be so great that the means are not to be considered. The ballot may contain counter propositions and additional acts upon the same subject. Some reformers might present one act and the extra-legal government another on the same subject. When these occasions arise, one thing we may be certain of: the average voter will be most densely ignorant of what it is all about. Who, then, in the usual case will have the privilege of directing him how to vote? Why, of course, the same organization that directs the voter regularly how to cast his ballot for candidates for office. The power of the extra-legal government to advise and direct the politically ignorant voter how to vote will be just as effective in the normal election to carry or defeat an act on an initiative or referendum as it is to place men loyal to it in the offices of the legal government.

The initiative and the referendum, then, while they may at times give the righteous a desirable advantage, will in normal conditions place in the hands of the extra-legal government the opportunity to secure the passage of undesirable laws or to defeat good ones and to insist for a time at least that this is “the judgment of the people”; just as for years they have declared that when the system of frequent elections for many offices produced undesirable officeholders, it was the result of the will of the people.

FOOTNOTES:

[7] George Kibbe Turner, “The Thing above the Law,” McClure’s Magazine, XXXVIII, 575.

CHAPTER IX
THE RECALL

What has been said of the initiative and the referendum is almost precisely applicable to the recall.

The movement for the recall began just as soon as it was generally perceived that our system of frequent elections to fill a large number of offices did not prevent the extra-legal government from placing in office men loyal to it. The movement for the recall is the frankest admission that this system of elections has been a failure. The real cause for this failure was the fact that too much voting had overloaded the voter and his resulting political ignorance had delivered him into the hands of an organization which in effect cast his ballot for him. Again, however, this was entirely neglected, and the superficial and obvious remedy was put forward of having a new election whenever it was discovered that an officeholder was objectionable because of his subservience to an extra-legal government. The statutes, however, do not undertake to submit to the electorate the question whether the officers subject to the recall elections have been too subservient to the extra-legal government and that alone. Instead, the voters may cast their votes for the recall of an officer on any ground they please.

If there is an organized and effectively led revolt against extra-legal government, then obviously the weapon of the recall may be of great service. It will enable the attacking party to sweep out of office adherents of the extra-legal government who would otherwise have held until the next election, when the tide of popular sentiment in favor of the attack might have begun to ebb. But revolts are not at all frequent. There has always been an opportunity at regular elections for such movements through independent nominations by petition. A revolt of any consequence would have undertaken to use this method. In spite, however, of the opportunity thus afforded, the general revolt against extra-legal government in local districts is the occurrence of a decade, if not of a generation.

It is the effect of the recall under normal circumstances, when no revolt against extra-legal government is in progress, that must principally concern us. At such times the recall is more valuable to the extra-legal government than it is to the electorate at large. The recall is as available to the extra-legal government as it is to the electorate at large. In fact, the extra-legal government must of necessity become familiar with its use. Every officer of the dummy legal government must, therefore, at all times act with the knowledge that the extra-legal government may start a recall election against him. Imagine what this means to the host of subordinate officers that were put in apparently by the electorate, but of whom the electorate never had any knowledge whatever. They have no popular following. They have no money with which to advise and instruct the voters of the character of the fight that is being made against them. What possible chance would such officeholders stand against the permanent organization of advisers and directors to the ignorant voter which the extra-legal government controls? The recall under normal, everyday conditions would place the majority of officeholders even more completely in the control of the extra-legal government than they are now.

The recall, if applied to the judiciary, would in usual and normal times operate to give the extra-legal government the same power over the judges that it would have over other officeholders.[8] A judge is one of the most helpless of all elective officers. He can run on no platform; he can have no political program. He cannot point dramatically to any achievements on behalf of the people. Whether he is a good judge or not is a matter of expert opinion that only a comparatively few persons are competent to pass upon. His reputation can be easily blasted by the circulation of false statements. He may even be hurt by the performance of his duty in a particular case. His retention in office at elections is in a great number of instances purely a matter of accident. If he is up at a fall presidential election, his retention in office will practically depend upon the success of the national party in whose column his name happens to be. It will make little difference whether he has been one of the best judges that the county or state has ever had, or one of the worst. Elections place the judge very largely at the mercy of the extra-legal government. That government may not be able to return him to office, but the judge knows that without its support his re-election will become practically impossible. To give the extra-legal government the opportunity to use the recall upon a judge is to hold above the judge’s head at all times the threat of an extra election which he is in no wise prepared to undergo. Nothing could more clearly increase the power of the extra-legal government over the judiciary. If the recall of judges be advocated on the ground that they have become subservient to the politocrats, the conditions which have caused them to become so will have been greatly increased by the very device which is advocated as a means of ridding us of that subserviency.