The initiative, referendum and recall

Preface

This volume represents a substantial contribution

to the further careful and thoughtful discussion of a

widely considered plan of reform. Professor Munro

brings to his task as editor not only a comprehensive

knowledge of the subject treated — direct legislation as

it is popularly known — and a deep sympathy with the

c^t movement to correct the undoubtedly and undisputed

£2 evil results of r ep re's ent alive government, but, what

c ~ ) is of prime importance, a sound perspective and with-

co out local prejudice.

I — Some of the chapters in the volume are new, hav-

ing been specially prepared for it. Others have been

taken from the substantial list of papers which have

been presented to the National Municipal League dur-

K ing the past decade of years. Still others, like those

■a of Colonel Roosevelt and Congressman McCall, have

u been selected from the current periodical discussion of

the problem. All have been brought together by Mr.

Munro in furtherance of the League's function as an

open forum, to give both sides fairly, and to recount

results fairly, so that the publicist and student may

form an enlightened and sound opinion.

Chosen for this purpose, the articles are not the

PREFACE

hasty words of agitators or demagogues, but the thoughtful utterances of public men of experience, who appreciate the problem and its difficulties and their own responsibilities as leaders.

The Initiative, Referendum and Recall are here, and we are destined to hear more, rather than less, of them. Whether they are to become permanent features of our governmental (federal, state and municipal) machinery, or merely to afford the means of correcting the abuses of the present-day operation of representative government, is a question which only time will determine. This volume is put forth with the expectation that it will afford definite, dispassionate information and careful, disinterested argument, so that the most may ,1?£ made of the democratizing influence of the reform and the gx'eatest possible good developed from the movement.

To all who have cooperated in the making of the book the appreciative thanks of the Publication Committee of the National Municipal League (William B. Howland, Chairman, New York; John Ihlder, New York; Clinton Rogers Woodruff, Philadelphia; Prof. L. S. Rowe, Philadelphia; Richard S. Childs, New York) are herewith cordially tendered.

Contents

CHAPTER PAGE

I. — Introductory. By the Editor i

II. — Nationalism and Popular Rule. By Colonel

Chapter I

There has been no more striking phenomenon in the development of American political institutions during the last ten years than the rise to prominence in public discussion, and consequently to recognition upon the statute-book, of those so-termed newer weapons of democracy — the initiative, referendum and recall. By the initiative is meant the right of a stated percentage of the voters, in any state or municipality, to propose both constitutional and ordinary laws, and to require that, if these be not enacted forthwith by the state or municipal legislature, they shall be submitted for ratification to the whole body of voters. By the referendum is meant the right of a stated percentage of the voters to demand that measures passed by the ordinary lawmaking bodies of the state or municipality shall be submitted to the whole body of voters for acceptance or rejection. By the recall is meant the right of the electors in any state or municipality to end by an adverse vote the term of any elective officer before the expiration of the period for which he was elected. However opinions may differ concerning the inherent merits and defects of these agencies of popular government, or concerning their compatibility with a sound representative system, it is at all events not to be denied that they have gained, during recent years, a remarkable hold upon the confidence of a large and apparently growing portion of the American electorate.

For this growth in popularity a twofold reason may be assigned. On the one hand it is a logical byproduct of a declining popular trust in the judgment and integrity of elective legislators. The calibre of the representative body, whether in state or city, is not what it used to be, and of this deterioration public opinion has taken due cognizance. Whatever the reasons therefor, and they are probably too complex to warrant easy generalization, the symptoms of legislative degeneracy have grown too plain to be disregarded. Resort has accordingly been had to the most superficial of prudential measures, which is to take away from the wicked and slothful servant even that which he hath. For maladministration in a democracy the electorate never regards itself to blame ; the demos postulates its own infallibility. Hence it has sought to remedy the evils which seem to result from an unsatisfactory representative personnel, not by the adoption of measures designed to secure an improved grade of officeholders, but by reducing the final powers which the officeholders may exercise. In other words, the growth in popularity of direct legislation evinces a public disposition to revoke the trust rather than to change the trustees.

In the second place, the representatives of the people have themselves shown readiness to aid the movement. American legislative bodies do their work under serious handicaps arising from the lack of efficient leadership and from the division of power and responsibility which is inherent in the system under which they are expected to perform their functions. Thoughtful men, alike in the state legislatures and in the large city councils of most American cities, have come to realize that efficient legislation requires both leadership and the centralization of responsibility; American legislative bodies have possessed neither. In the absence of these features, sinister influences comj into full play upon the floors of legislative chambers. Representatives find that they can take sides on many questions of policy only by placing themselves in such position that they are bound to antagonize some powerful organized interest, no matter which side they may take, so that to turn the whole matter over to the issue of a popular referendum constitutes for them the line of least resistance. The referendum in particular has thus become the Torres Vedras of the legislator whose first care is. for his own political future. The practice of passing bills to enactment "with the referendum attached," has become common in many states during recent years, and measures for which the legislature is not ready to take full responsibility are being more and more readily turned over to the electorate for acceptance or rejection. At first an exceptional procedure, this practice has shown a tendency to seek recognition as a normal method of lawmaking; the legislatures have taught the voters to expect that they shall be freely called upon, not only to select representatives, but to give a direct decision upon issues of policy. Hence appear the two outstanding reasons for the recent development of direct legislation in American state and municipal government. A declining public confidence in the efficiency and integrity of legislators, and a readiness on the part of representatives to place upon the shoulders of the voters a responsibility which ought properly to remain upon their own ; these two tendencies have combined to give direct legislation its growing vogue.

Notwithstanding a current impression to the contrary, direct legislation is not new either in principle or in practice. The initiative and the referendum are new names for very old institutions. All ancient democracy was direct democracy; and so far as there was legislation in early democracies, it was direct legislation. The government of the primitive Saxons, if it may be called a government, was vested in the hands of a popular assembly, composed of all the adult tribesmen, and this assembly exercised directly, without the interposition of any representative body, the whole civil and military authority. In Switzerland, where alone among the lands of Europe the great centripetal influence of monarchical absolution did not make itself strongly felt through the Middle Ages, systems of direct popular government came early into existence and remained until modern times. Even in America the initiative and the referendum are among the oldest of native institutions : they may properly be called indigenous, for these agencies of popular government were not borrowed by the American people from anywhere outside their own land. They were brought into being upon this side of the Atlantic to meet the special problems which a new government had to face. Massachusetts submitted her first constitution to a popular referendum in 1778, and again, this time with a favorable response, in the following year. As a means of ascertaining the will of the voters upon constitutional questions, the expedient quickly found favor in other states, and the use of the referendum as the ordinary method of enacting organic laws in time became general. 1 The initiative, likewise, obtained recognition in principle, at any rate, when the first constitution of Georgia in 1777 gave to the people the exclusive right of proposing changes in that document. Other eighteenth-century constitutions, notably those of Massachusetts, Pennsylvania and New Hampshire, reserved to the people, not the right to initiate legislation, but what amounted to at least a permissive initiative — the

1 Not yet entirely so, however, for during the last twenty years four state constitutions have gone into force without popular approval namely, those of South Carolina (1895), Delaware (1897), Louisiana (1898) and Virginia (1902).

right " to give instructions to their representatives " in the legislature.

The use of the referendum in the process of ordinary, as distinguished from constitutional lawmaking, began in America a half-century later. The legislature of Maryland, in 1825, referred to the people of that state the question of establishing free primary schools, and stipulated that the law should go into effect only in such counties as might pronounce in the affirmative. Other state legislatures followed the same procedure in cases where the issue did not seem to be readily determinable otherwise, and in due course provisions began to be inserted in state constitutions requiring that all ordinary laws affecting certain matters should be submitted, before final enactment, to the people of the entire state or the voters of the counties or municipalities affected. Typical examples of matters upon which some constitutions have made the referendum an essential preliminary to enactment are changes in the suffrage laws, alterations in the state boundaries, changes in the location of the state capital or of the various state institutions, measures pledging the credit of the state or giving state aid to private enterprises, and modifications in the laws relating to state taxation.

But the practice of referring matters to a popular referendum has made its most steady progress in the realm of local government. The wide variety of interests which often appeared to be affected by general legislative measures relating to local administration, and the seeming impossibility of providing state-wide rules which would serve the needs and desires of all the municipalities, large and small, soon led the state legislatures to the practice of entrusting such matters to the decision of the localities themselves. The regulation or prohibition of the traffic of intoxicants was perhaps the most prominent of the matters within this category, and it is a question upon which there have been more popular referenda in American municipalities than can easily be counted. Indeed it has come to pass that, in some states of the Union, the cities and towns, look upon the privilege of deciding this question at an annual referendum as a sort of inalienable right of the community. So, likewise, such matters as the adoption of a new city charter, or the adoption of amendments to an existing charter, the alteration of municipal boundaries, the issue of municipal bonds, and the granting of long-term franchises to public service corporations, are all matters upon which the voters of cities and towns have frequently been called upon to pass judgment at the polls. Sometimes the constitution of the state requires submission of such matters; at other times the requirement is statutory only; and in still other instances the referendum is ordered by the authorities of the municipality itself. To the practice of submitting matters to the voters of a municipality, or to any portion of the whole body of state voters, there is no serious constitutional objection. But the state-wide referendum, that is to say, the submission by the legislature of a measure to the voters of the entire state for final adoption or rejection by them, meets the objection that such reference constitutes a delegation of legislative power. And in the absence of specific constitutional permission, such delegation has usually been held by the courts to be ultra vires of the legislature. It has been urged also that states which adopt the mandatory initiative and referendum thereby contravene that provision of the United States constitution which guarantees to every state in the Union " a republican form of government." But this idea has not as yet found support in any judicial decision.

While the two agencies of direct legislation — the initiative and the referendum — are logically related and supplement each other, the latter can exist and serve many of its professed ends without the former. And as a matter of fact the referendum moved along during the greater part of the nineteenth century under its own steam. The principle of the initiative, which is that a stated percentage of the voters of a state or municipality shall have the right to propose a measure and to require that such measure be submitted to the people for their adoption, was given recognition at a very early date in American political history. But its progress for a full century was slow, much slower than that of the referendum. Where it did appear in the constitution or the laws, it was rarely brought into operation unless it happened to be the only way in which legislation relating to certain matters could be brought forward. Not infrequently the initiative did provide the only way. When, for example, a state constitution inhibited the legislature from enacting any special legislation for individual cities, how could the special needs of a particular city be provided for ? The natural way is, of course, to let the citizens of a particular municipality set forth their own demands by a petition, which is, in other words, to exercise the initiative in legislation. Constitutional provisions which forbid the legislature from enacting laws of this, that, or the other sort, have become steadily more numerous during the last quarter of a century, and their increase in number has given a powerful impetus to the spread of direct legislation. South Dakota was the first state to adopt the initiative and referendum as normal agencies wherewith the electors of the state might directly control the making of all ordinary laws, for an amendment to the South Dakota constitution, made in 1898, permitted the initiative to be exercised and the referendum to be invoked by five per cent, of the voters. Other states which have incorporated similar provisions in their constitutions during the last ten years are: Utah, in 1900; Oregon, in 1902; Nevada, in 1904; 1 Montana, in 1906; Oklahoma, in 1907; Maine, in 1908; Missouri, in 1909; Arkansas and Colorado, in 1910; Arizona and California, in 191 1; and New Mexico (referendum only), in the same year.

The provisions relating to direct legislation in these

1 Nevada in 1904 made provision for the referendum only; but an amendment providing both for the initiative and the recall is now being submitted to the voters.

2 9 various states are alike in fundamentals, but differ in many important details. In all of them the referendum is obligatory as a method of adopting constitutional amendments, but in two of them, Montana and Maine, constitutional amendments are excluded from the scope of the initiative ; that is to say, the voters of these two states are allowed to pass upon all proposed changes in the organic laws, but are not permitted to do the proposing. In the matter of ordinary laws, moreover, there are various limitations upon the scope of direct legislation. A common proviso is that which excludes from the operations of the initiative and referendum all measures which carry appropriations for the current expenses of state government, or for the maintenance of state institutions. The constitutions of Maine, Missouri, Montana and South Dakota contain this restriction. Another limitation, which exists in practically all the states which have adopted the initiative and referendum, is that which exempts from their scope all emergency measures, that is, laws which seem urgently necessary in the interest of the public peace or for the preservation of the public health. As a precaution against the abuse of this right of the legislature to act freely and finally in emergencies, it is usually provided that measures passed under this proviso must have obtained a two-thirds majority in each branch of the legislature. But lest this safeguard should not prove adequate, the constitutional provisions in some cases go further and expressly declare that certain classes of measures may not in any case be deemed emergency laws. Among measures so enumerated, are statutes granting franchises for a longer term than a single year, legislation authorizing the purchase or sale of lands, and laws changing the charters of municipalities without a local referendum.

In the machinery of direct legislation there are also some marked variations. The percentage of voters required for putting the initiative into operation is eight per cent, in some states and five per cent, in others. 1 Oklahoma requires fifteen per cent, in the case of constitutional amendments, but only eight per cent.^ in the case of ordinary statutes. Generally speaking, the same quota of voters may demand a referendum upon any measure passed by the legislature. Likewise the procedure differs from state to state in such matters as the basis upon which this percentage is calculated, the methods of verifying signatures to petitions, the time and place of filing petitions, and the arrangements for giving due publicity to measures proposed. In the last-named matter, most of the states which have adopted the system of direct legislation arrange for printing and distributing, at the public expense, full texts of all measures which go before the people. Some of them have the additional provision that arguments pro and con shall, under suitable limitations, be published and sent broadcast at the cost of the state exchequer. In South Dakota referenda may take place only at a regular election, but in the other

1 In Maine the requirement is not a percentage but 12,000 voters.

states special elections may be ordered. Ordinarily a measure may be re-submitted as often as the required number of petitioners can be found to demand it; the Oklahoma constitution is the only one which affords any adequate safeguard against abuses arising from the frequent re-submission of defeated proposals. A measure rejected by the voters of that state may not be again referred to them within three years, save on petition of twenty-five per cent, of the voters — a practical impossibility.

The state of Illinois has adopted a system which is intended to secure the advantages of direct legislation while preserving the actual lawmaking functions of the legislature. Measures may be initiated by popular petition, and when so originated, go to the voters at the polls. But acceptance at the polls does not, as in the other states, enact the measures into law. The action of the voters is merely advisory in effect, and operates as an instruction to the legislature, which alone retains the power of actual enactment. The laws of Texas, again, provide for initiative and referendum as agencies for framing party policy. A specified number of voters (ten per cent.) in any political party may propose planks for the party platform and may secure a party vote thereon. The opinion of the party adherents, as thus expressed, becomes an instruction to all party conventions, cdmmittees and officials.

But, as has been already stated, the greatest development of direct legislation has taken place in the field of municipal government. Here it has gone hand in hand with the movement for simplifying municipal machinery and for ousting* party organizations from that dominating place in city government which they have ldng maintained. The spread of the commission type of municipal administration has given the initiative and referendum much of their present-day vogue in new city charters. To be more accurate, one should say that each movement has supplemented and helped the other. A system of city government by a single commission of five men would doubtless have appeared to possess great possibilities of danger and would hardly have reached its present degree of popularity had not the sponsors of the plan put forward schemes of direct legislation as a means of replacing the old checks and balances which the adoption of the commission system eliminates. It is true that the cities which first adopted the commission plan, Galveston, Houston and other Texan municipalities, did not give the initiative, the referendum, or even the recall a place in their new charters. They placed their full faith and credit in the representative type of local democracy. That is one reason why northern cities first looked askance at the Texas experiment. The Des Moines plan, which is the Texas system plus provisions for direct legislation and non-partisan nominations, appealed more readily to public confidence. Government by commission has secured adoption in over two hundred American cities. Of this number the great majority (that is to say, in nearly all except some of the cities of Texas) have incorporated in their new commission charters some sort of provision for the initiative or referendum.

As in the state constitutions, the city charter provisions relating to direct legislation are alike in principle and varying as to details. Speaking broadly, the voters of the city have the right, by presenting petitions bearing a prescribed number of signatures, to propose any municipal ordinance or other local measure. The percentage of signatures required is, of course, higher than that demanded in state affairs: it ranges from fifteen to twenty-five per cent. 1 Such proposals go before the whole city electorate at the next regular polling, provided the date of such polling be not more than a few months away; otherwise special elections may be held. Similarly the charters usually provide that no ordinance or order of the municipal council (or commission) shall go into force for a certain number of days, during which interval petitions asking that the ordinance be referred to the voters may be presented. If such petitions bear the required number of signatures, the ordinance can go into effect only on acceptance at the polls ; if valid petitions be not presented within the interval, the ordinance goes into effect.

Both in state and city governments the machinery of direct legislation has been frequently set in motion during the last half-dozen years'. In Oregon the sys-

X A table showing the exact percentages in all commission-governed cities may be found in E. S. Bradford's "Commission Government in American Cities" (New York, 1911), 223-233.

tem has been put to an extensive and increasing use at every state election since its incorporation in the constitution ten years ago. At the election of 19 10 no fewer than thirty-two projects of legislation were submitted to the voters of the state, 1 and there are indications that the ballots of 191 2 will have also made free use of the system or quite enough, at any rate, to demonstrate that where provisions for direct legislation go on the statute-book they are not at all likely to remain inactive.

No question of present-day political discussion affords grounds for wider, yet thoroughly sincere, differences of opinion than the relative merits and defects of direct as contrasted with representative legislation. Men differ honestly, not only as to the soundness of the principles upon which the initiative and referendum are based, but also as to the immediate and ultimate effects of their actual use. One reason for this can be found, perhaps, in the fact that the propaganda for direct legislation embodies not only a policy but a protest, and upon the necessity for any protest of such violence against the existing system there is an added opportunity for divergence in opinion. Proposals for the establishment of the mandatory initiative and referendum have derived much of their impetus and support, not from a popular conviction that they promise a wholly satisfactory

1 These are printed in C. A. Beard and B. E. Schultz's "Documents on the Initiative, Referendum and Recall" (New York, 1912), 385-389.

IS method of lawmaking, but from a widespread impression that only through these agencies can some present-day legislative abuses be eradicated. American public opinion has grown more vigorous, more active, and more intelligent during the last decade. At no time in our history, indeed, has it been more adequately informed upon great political, economic and social questions, for in no previous period have the agencies of popular information been so ample. Being informed, public opinion has become eager to assert itself in legislative policy, and it would doubtless be content to do this through the orthodox channels of representative government if this seemed wholly feasible. But a large section of the electorate has come to the conclusion that these channels do not afford adequate facilities for the assertion of popular sovereignty. Nor is this conviction confined to any loose-thinking element among the voters. When one of the most observant among contemporary students of American political currents can express the conclusion that " public opinion was never more helpless to obtain its purposes by ordinary and stated means," * it can scarcely be urged that the old machinery of democracy is fulfilling its professed ends to the satisfaction of all.

Popular distrust of the present system of lawmaking is undeniably widespread and deep. But it is not based upon the idea that the representatives of

i See below p. 74. 16 the people are incompetent to do their duty. Rather it arises from the notion that they are prevented from doing it. And these preventing influences, in the popular mind, are various organized interests — political machines and economic corporations — whose wishes do not usually run parallel to those of the electorate. To be logical the protest ought to be directed against the practice of sending to the legislature and to the municipal councils men of insufficient integrity who allow themselves to be controlled by sinister influences. But public opinion is not inclined to be logical in the protests which it makes. Whatever the flaws of representative democracy, the people are loth to put the blame therefor upon their own shoulders. The voters will change the system, but not their own ways.

Grounds for popular protest against the control of representative bodies by self-seeking interests there are, of course, in plenty. Conditions that have long existed and still exist in at least a dozen states and in scores of municipalities afford abundant proof that whether or not the voters get what is advisable for them to have in the matter of legislation, they certainly do not always get what the majority of them want. And under the representative system, as it has been administered in most parts of the country, it would be strange to find things otherwise. When representatives are nominated in party conventions dominated by political bosses and elected by a ballot which embodies every feature that ingenuity could devise for befogging the voter; when these representatives are set to perform their functions of legislation under a system which eliminates all possibility of firm leadership and presents every facility for shifting responsibilities, it is idle to expect that the statute-book will be a mirror of public opinion.

Somewhat curiously, however, it is only within very recent years that any serious attempts have been made to clear the representative system of these impediments to its proper working by the introduction of such features as direct nominations, the short ballot, and improved methods of procedure in legislative bodies. For a long time remedial measures took lines which were not, and could not be productive of marked improvement. Popular distrust of representatives manifested itself first of all, for example, in the practice of curbing legislative freedom. Whenever state constitutions were revised, new limitations upon legislative discretion were inserted until one could almost say that in some states the constitutional convention (with its work subject to popular ratification) has become the medium of all fundamental legislation, while the state legislature is relegated to the function of providing for odds and ends during the years intervening between periodical revisions of the constitution. 1 Whenever, through rise of new conditions, a state legislature develops a new field of discretionary action, the next constitutional convention is quite apt to put a hamper upon such legislative freedom by defining

1 J. Q. Dealey, "General Tendencies in State Constitutions " in American Political Science Review, February, 1907, pp. 200-212.

the principles upon which the new conditions shall be met. Some state constitutions prescribe that the legislature shall meet only in alternate years, and some place a limit upon the number of days it may continue in session — constitutional provisions which seem to take for granted that the activity of legislatures is a somewhat necessary evil that ought not to be borne beyond a certain point. None of these measures is in the direction of improving the calibre of legislators — none of them aims to facilitate the work of legislatures. All of them are based upon the strange notion that^ the work of a representative body can be improved by curtailing its freedom, and, pari passu, its responsibility. The most effective way to degrade any official chamber and to make service in it unworthy of substantial men in the community is to take away its capacity for becoming a public nuisance if it chooses to be such. A body which can do no harm can, by the same token, do little good, and public opinion will not be long in discovering the fact. Constitutional hampers upon legislative discretion have availed, for the most part, only to lower the calibre of men elected to lawmaking bodies.