Popular Law-making / A study of the origin, history, and present tendencies of law-making by statute

by Frederic Jesup Stimson

The serious modern instance of interference with free election is that of the Federal government with State elections in the South during the thirty years following the war. While such interference was never quite held unconstitutional, it was strongly felt to be so; and has therefore disappeared from practical politics. The principle of free election, therefore, remains again unquestioned, and is, indeed, strengthened by considerable legislation aimed at the influencing of votes by employers, etc. Many States, for instance, require that Election Day shall be a holiday, or, at least, that all employers of labor shall give part of the day, one or two hours at least, for the employees to vote; and a number of States have statutes aimed at the coercion of their vote by any promise of giving or withholding employment, or otherwise, and the giving their pay to them in envelopes upon which any political matter is printed. Bribery is nearly always made criminal and cause of permanent disfranchisement and disability to hold office, both to the person giving or receiving the bribe, but there is more interesting legislation still aimed at any form of political corruption. Massachusetts led the way with a statute which endeavors to make criminal any promise of employment or advantage, or even for a corporation, at least, to employ any person at the recommendation of any member of the legislature. It is very difficult to draw such laws to make them apply fairly, but they have been copied with even greater elaboration in many Southern States. The statute of Alabama, for instance, covers nearly a page in describing the various acts or promises which are thus forbidden to officers or candidates for office.

Then there is the long range of lobby acts aimed at the very serious abuse of lobbying. Massachusetts divides the offence, or rather the business, into two general classes: First, the legislative counsel who appears before legislative committees in support or in opposition of measures. This practice, of course, is perfectly legitimate in many cases, but the law provides that his advocacy must be open, he must disclose the client for whom he appears, if there be one, and at the end of his services file a statement of the counsel fees actually received. Such legislation, however, is easily evaded by the payment of an annual salary. Then there is the legislative agent or lobbyist, properly so called, who does not openly appear before legislative committees, but waylays members of the legislature at their dwelling or meeting places, or elsewhere. He must also register as legislative agent by the Massachusetts law, and file an actual account of his receipts and expenses. Such legislation properly observed would, of course, have made impossible the celebrated "House of Mirth" at Albany. Then there are many statutes against intimidation in elections, particularly in the South; and there were many acts of Congress passed under the Fourteenth Amendment, but these have practically all been held unconstitutional.

The form of the ballot is another matter that has been the subject of much legislation. Our States vary, as does still public opinion in England, between the extreme of providing by the Constitution itself for the secrecy of the ballot, and the other extreme of requiring that all voting should be viva voce, as was formerly the case at least in Kentucky. Public opinion has universally settled in favor of the former; and to protect the voter's freedom, the so-called Australian ballot has very generally been adopted, the principle, of course, being a ballot on which all candidates' names are printed, with or without party designations, and against which the voter makes his mark. In their practical working, however, these laws depend on the simplicity of the form; thus, it works very well in Massachusetts, where the form is simple and the ballot short, and very badly in New York, where the contrary is the case. Opinion is pretty well united on the advisability of the Australian ballot, the only remaining difference being as to whether any party designations should be printed. Most practical politicians desire that the name "Republican" or "Democrat," or even that some party symbol like a star or flag, should be affixed, which can be understood by the most illiterate voter; also, that the voter should be allowed to make one cross opposite the word "Republican" or "Democrat" when he means to vote the whole of the ticket, "in order to give each candidate the benefit of the full party strength." On the other side it is argued that all voting should be intelligent and never blind, and that if the voter does not take the trouble to mark all the names on the ballot it sufficiently indicates that he is indifferent as to some of the candidates even of his own party, and that his votes for them should, therefore, not be counted.

The most significant of modern developments in legislation concerning voting is the new practice of recognizing by law political parties, and of regulating by law the mode of their nominations. The old idea was that the law took no notice of anything that happened until election day, when it did regulate the mode of voting and counting the votes; the law was supposed to be blind to political parties; the persons elected were merely the successful candidates. But first began the tendency to recognize parties in "bi-partisan" boards and commissions; it became very usual to provide that State officials should, when the office was held, or the function performed, by more than one person, be elected or appointed from different parties. This, of course, works very well when there are but two parties, as indeed is usually the case. And now of late years the practice has grown up of regulating political matters before the election day. Direct primaries, caucuses regulated by law, the mode of nomination, nomination papers to be filed in a certain manner, the compulsory service of men as candidates unless they comply with precise formalities of resignation, the joint caucus and the separate caucus, the public nomination paper, the one-per-cent., three-per-cent. or five-per-cent. rule whereby a party gains such official recognition only by throwing such a percentage of votes at some previous election—in short, all the mass of legislation of this kind is the matter of the last few years. In the writer's opinion, with the possible exception of the public nomination paper, it is all mistaken. Aimed at destroying the machine, it really intrenches the machine—the professional politician—in power. The general public will not, and should not be compelled to do more work than is necessary. If they actually vote at election it is all that can fairly be asked of them and more than one-third of them do. They will not, and cannot, devote their time to politics all through the year. The result is that all such elaborate schemes simply throw the game into the hands of the "town committee" or other permanent professional body. If you have to hold a meeting in June, and give notice of a caucus in July, with as much formality as used to be required in publishing the bans of marriage, and then on a certain day in August do something else, and in September something still more, and file with the Secretary of State nomination papers in October, and have everything complete ten days before election day,—the ordinary citizens who usually awake to the fact that there is an election about that time find it too late to have any voice in the nomination. They go to the election itself to find an official ballot with two machine candidates for each office, and no hope of electing, even were it possible to nominate, a third. In the old days, when they discovered that an improper candidate had been nominated, on the very eve of election they could arouse themselves and defeat him; under all these complicated systems it is too late. One necessity for such legislation, however, arises from the Australian ballot itself; when that ballot carries party designations, who is to determine who is the official party candidate? This problem is not, however, insoluble. Indeed, it might be argued that it would be an excellent test to require the various so-called party nominees to run together, leaving to the voter to determine who was the regular one. Certainly the legalizing of conventions, caucuses, and other nominating machinery, has led to great scandals. Under such laws, whoever first gets possession of the hall at the time named would seem to be the regular candidate. We have, therefore, in Massachusetts, seen the scandal of two groups of men making different nominations in a loud voice at the same time, one at the front of the hall, and the other at the back, and the courts had to decide who was the regular nominee. In the opinion of most lawyers, they decided in favor of those who ought to have been the nominees rather than of those who in fact were.

In the opinion of many "practical politicians," as well as others, the whole mass of legislation that recognizes political parties and applies to anything happening up to the date of election, should be expunged from the statutes. I would hardly make an exception even of the "bi-partisan" board. A board should be composed of the best persons, not necessarily party-colored; if there be any force in the argument for bi-partisan commissions, it should apply ten times as much to the judges, but there is no provision in any State of the Union or in the National government for bi-partisan courts of law. Massachusetts, alone, so far as the writer is informed, of all the States, by a certain tradition respects this principle. Very few Massachusetts governors replace a Democratic judge by a Republican, or vice versa.

But most significant of all political matters is the growing distrust of legislatures. Curiously enough, although there was a great distrust of the executive of the nation until within a very few years, that seems to have entirely passed away. Governors of States have too little power to inspire distrust in anybody. But that legislatures or representatives of the people should fail to inspire their confidence is one of the most curious developments of modern politics. The matter has been fully discussed elsewhere in this book. It is greatly to be lamented, for it tends to lower the character of the legislatures themselves. The days are indeed far off when a man would prefer being governor of a State to president, ambassador, or judge of the Supreme Court; or the State Senate to the national Congress. Part of this indifference is, of course, explicable; for with the perfection of our civilization and the growing intelligence that most statutes have been enacted that are really needful, there is really less for the legislatures to do. Then, also, the growing practice of giving a large share of governmental, or even legislative, powers to boards and commissions has narrowed the scope of legislation. Whatever be the reason the fact is certain. Very few States now allow their legislatures to sit ad libitum, and only six or seven States permit annual sessions. In nearly all States sessions are biennial, if not, as in some Southern States, quadrennial. That is to say, the legislature is only allowed to meet once in four years; and in more than half the States the time of the session is limited to ninety, sixty, or even thirty days, or the pay of the legislators cut off at the end of such period.

A few States have laws aimed at corrupt elections, that is to say, limiting the expenditure of candidates and requiring publicity. Most States now forbid contributions by corporations, as does the Federal government.[1] Thus, by the California law of 1893, expenditures are limited to one hundred dollars for each candidate, or one thousand dollars by a committee, and in no case exceeding five per cent. of the salary of the office for which the person is a candidate for one year, and the legitimate expenses are specified; that is to say, public meetings, printing, postage, and head-quarters expenses. Probably no one regrets the prevalence of extravagant expenditures more than persons who are themselves in public life. If the bosses of many State machines were consulted in private, they would agree that the only really legitimate expenditures are the hiring of halls, and the mailing of at most one printed circular to every voter in the district. The Missouri law of the same year fixes a limit of expenditure of one dollar per hundred of votes thrown at the last election for the office for which the person is a candidate, which, in an ordinary congressional district of say fifteen thousand voters, would be one hundred and fifty dollars—certainly little enough. Voters very generally have to be registered.

[Footnote 1: Bill signed by President Taft, June, 1910.]

As is familiar to the reader, there has been a decided movement for the direct election by the people of United States senators, a large majority of the States, and the Democratic party in all States, having in the last few years expressed themselves in favor of a change in that particular. Until within a few years it was thought only possible by Constitutional amendment, but the example of Oregon and other States has shown that it may be done by means of a law providing for the expression of the preference of the voters, and this may even be made a party ballot. That is to say, voters at party caucuses, or even at elections where the ballots are so marked, may express their preference for this or that candidate for the United States Senate, and the moral obligation will then be on the State legislature, or at least on its members of the corresponding party, to vote for the candidate so nominated. This has been universally done in the case of election of the United States President by the force of public opinion; no instance is on record of an elector having voted differently, or of a bribe or even of an attempt to bribe. But with legislation—statute law not being so strong as the unwritten law, contrary to the popular opinion—it is by no means certain that this result will happen. The law has worked in Oregon, where first adopted, with the striking result that a Republican legislature elected a Democratic United States senator; but if the writer is correctly informed, the contrary has been the case in Illinois. The movement for the direct nomination of members of the lower house of Congress also exists in many States. "Direct nomination" of course means a nomination by the mass of voters, either in assembly or by a written list. The value of this reform is probably exaggerated. Direct nominations in the city of Boston recently had the somewhat amusing result that there were two or three times as many names on the nominating petitions as voted in the election, and that one gentleman, indeed, fell short of his nominating petition by nearly ninety per cent.

The mode of legislation is not much changed from the early days. Usually bills have in theory to be read three times and must be voted for by a majority of a quorum. Many States forbid new legislation to be attempted after the first few days of the session. There has in the last few years been an effort at the proper drafting of bills, but it has hardly made much progress as yet, and will be discussed in our final chapter.