Direct legislation. Article relative to popular government through initiative, referendum, and recall

Chapter I

In early days the legislative function was exercised by the whole body of enfranchised citizens assembled for the purpose. The laws of the Commonwealth were made by the voters directly, in substantially the same way that the laws of a New England town are made to-day. But after a time the body of freemen became too large to meet in this way and a system of lawmaking by delegates was adopted. Towns and districts elected men to represent them in legislative council, and government by representatives took the place of government by the people except in respect to the local affairs of towns that possess the town-meeting system.

The change from legislation by the people to legislation by final vote of a body of representatives chosen for a specified term was a transformation fraught with the most momentous consequences. Under the former system the people had complete control of legislation. No laws were passed that the people did not want and all laws were passed that the people did want. But under the delegate or representative-final- vote system this is not true. The representatives can and do make and put in force many laws the people do not desire and they neglect or refuse to make some laws the people do desire. The people can not command or veto their action during their term of office. The representatives are the real masters of the situation for the time being. \ Between elections the sovereign power of controlling legislation is not in the hands of the people, but in the hands of a small body of men called representatives.' It appears, therefore, that the change from legislation by the voters in person to legislation by delegates was a change from a real democracy to an elective aristocracy, from a continuous and effective popular sovereignty to an intermittent, spasmodic, and largely ineffective popular sovereignty; from a government of the people, by the people, and for the people to a government of the people, by a few for — the people? Yes, sometimes, but too often for the legislators, and the lobbies, bosses, rings, monopolies, and party leaders who control them. It was a change in which self-government was fettered and the soul of liberty was lost.

What, then, shall be done ? Shall we give up the representative principle? Clearly not. Division of labor and expert service are as essential in lawmaking as in any other business. It is not representation, but misrepresentation that is wrong — not the representative system per se, but the unguarded and imperfect form of it in use at present. What we want is not a body of legislators beyond the reach of the people for one, two, four, or six years, as the case may be, but a body of legislators subject at all times to the people's direction and control. It is good to have powerful horses to draw your

S load, but it is well to have bit and rein and whip if they are frisky or likely to shy or balk. It is good to choose strong men to manage municipal and State affairs, but it is well too to provide the means to hold them in check or make them move at the people's will.

The problem is to keep the advantages of the representative system — its compactness, legal wisdom, experience, power of work, etc., and eliminate its evils, haste, complexity, corruption, error, over legislation and under legislation — departure from the people's will by omission or commission.

The solution lies in a representative system guarded by constitutional provisions for popular initiative, adoption, veto, and recall. Elect your councilmen and legislators and let them pass laws exactly as they do now, except that no act but such as may be necessary for the immediate preservation of the public peace, health, or safety shall go into effect until 30 days after its passage in case of a city ordinance or 90 days in case of a State law. If within the said time a certain percentage of the voters of a city or State (say 5 or 10 per cent) sign a petition asking that the law or ordinance be submitted to the people at the polls, let it be so submitted at the next regular election, or at a special election if 15 or 20 per cent of the voters so

Eetition. If the majority of those voting on the measure favor it, it ecomes a law; if the majority are against it, it is vetoed by the people.

Let it be further provided that if the council or legislature neglect or refuse to take any such action by ordinance, law, contract, franchise, etc., as the people desire, the matter may be brought forward for prompt decision by a petition signed by a reasonable percentage (say, 5 or 10 per cent) of the voters of the city or State. \The petition may simply state the general purpose and scope of the desired measure, leaving the council or legislature to frame a bill to be submitted to the voters; or it may embody a bill or ordinance, whereupon the petition, with the bill or ordinance, will go to the council or legislature, which may adopt it, reject it, pass an amendment or substitute, or do nothing — in any case the proposed measure (together with the action of the council or legislature upon it, if any) will go to the polls for final decision at the next election, or earlier, if a sufficient number (say 15 or 20 per cent) of the voters so petition. Or the petition may require that the proposed law be placed directly before the people, without reference to the legislative body, for their adoption or rejection.

These methods of law making by the people are called direct legislation, which includes two main processes known as the initiative and the referendum.

The referendum may be obligatory or optional, general or partial, executive, legislative, judicial, or petitionai. Under the general obligatory referendum all laws except emergency measures (acts necessary for the immediate preservation of the public health, peace, or safety) must be submitted to the people; no petition is needed; the submission is as much a part of the process of law making as the submission to the mayor or governor. The cantons of Berne and Zurich, in Switzerland, have had this system in operation for 30 years with admirable results. Under the partial obligatory referendum all laws of a certain class must be submitted to the people. For example, constitutional amendments must be submitted to the

DIRECT LEGISLATION.

voters in every one of our States except Delaware, an<(\in Missouri, California, Washington, Minnesota, and Louisiana freehold charters must go to the polls. The purchase or erection of waterworks, gas and electric, plants, telephones and street railways, the issue of bonds for roads, schools, and other municipal movements of large importance are usually guarded by the obligatory referendum

The optional referendum provides for a vote of the people on any measure in reference to which such vote is demanded by petition of a reasonable percentage of the voters, or by some officer or body in whom such discretion is vested.

The executive referendum is where the mayor or governor or President has a right to refer a measure to the voters for decision.

The legislative referendum is where one house, or a given percent- \ age (say 25 per cent) of one or of both houses may refer a measure to the people for decision, or where a measure upon which the houses disagree must be referred to the voters.

The judicial referendum is where a law that lias been declared unconstitutional must be submitted to the people for the final decision under a fixed rule to that effect, or may be so submitted by the court, or by a specified number of the judges. 1

The petional referendum is where the submission is called for by petition of the voters. A petition signed by the required number of voters is imperative, not a mere request, but a compelling mandate. It is the pctitional form of the optional referendum, or the system in which the option lies with the people, that is usually meant when the word "referendum" is used without explanation.

It will be seen that executive, legislative, or judicial referenda may be either obligatory or optional, general or special, and that the petitional method can be used to repeal an old law or veto a new one, or confirm a law declared unconstitutional, or call for an election to remove a legislative or executive officer or a judge from office.

The effective vote at the polls may be fixed at a majority of those voting, or of those entitled to vote, or a three-fifths, two-thirds, or three-fourths vote may be required.

The word " referendum" is often used in the sense of the right of the people to have enactments submitted to them, and it is also used to designate a statute or constitutional amendment securing this right. The word "initiative" is used in a similar manner. The context will usually show which sense is intended.

The initiative is the proposal of a law by the people.

The referendum is the submission of a law to the people at the polls for approval or rejection.

By these means the people can start or stop legislation at will. By initiative petition they can bring a measure forward for discussion and decision. They can rep3al an old law or amend it, or enact a new one, and progress is no longer barred by the interests or inertia of the legislators or councilmen, nor by the weight and wealth of corporate monopoly. Moreover, the people can prevent bad legislation as well as secure good legislation. If the legislature passes a law the people dislike they can call for a referendum and veto the measure at the polls before it goes into effect, whereas at present the law goes

1 The judicial referendum or "recall of decisions" bas been advocated by ex-I resident Roose'v elt. S>>a his Carnegie Hall Speech, New York City, Mar. 20, 1912, S. Do-. No. 473, 62d Con;,'.

into effect whether the people like it or not, and they have_ to wait till they can elect a new legislature to repeal the obnoxious act (after the damage is largely done, perhaps), and if the said act is a franchise, very likely it can not be revoked at all when once allowed to take effect — a franchise grant to a private company being a contract within the protection of the Federal Constitution, as established by the United States Supreme Court in the famous Dartmouth College case. This fact makes it particularly necessary that franchise grants (especially if unqualified by a reservation of the right to revoke at will) should be submitted to the people.

Does not the direct-legislation amendment to the representative system solve the problem? Does not the guarded representative system retain the benefits and eliminate the evils of the unguarded representative system ? The city or State will have its body of legal experts, trained advisors, and experienced legislators as at present. They will continue to do most of the law making as they do now, but their power to do wrong or stop progress, their power to do as they please in spite of the people, will be gone. The city and State will have the service of its legislators without being subject to their mastery. If the delegates act as the people wish, their action will not be disturbed. If they act against the people's wish, the people will have a prompt and effective veto by which they can stop a departure from their will before any damage is done. _ If the delegates do not act, the people can put the machinery in motion and bring the matter to decision. When the delegates truly represent the people their action will stand; when they fail to represent the people their decision will be subject to prompt revision. Under the unguarded representative system their acts that do not represent the people's will stand as firm during their term of office as the acts that do represent the popular will. Is this right? Is it right that the people's delegates should be able to impose their will upon the people for one, two, four, or six years ? Is it right that the acts of political agents, contrary to the people's will, should stand in spite of the people ? Is such a delegate system really worthy to be called a "representative system?" Is a system properly termed representative which may misrepresent as much as or more than it represents, and in which there is no adequate means of determining whether its action is representative or not ? Is not the right to a referendum, the right of the people to prevent the delegates from misrepresenting them, absolutely necessary to entitle the delegate system to the name "representative V

SELF-GOVERNMENT.

There is a confused impression in the minds of many that the choosing of rulers is the substance of freedom and self-government; that a people who elect their lawmakers are really making the laws. But it is not so. The selection of a governor is not governing, any more than the selection of a captain is commanding, or the choice of an organist or pianist is playing. The choice of a legislature is not self-government any more than the selection of a jailer or the choice of a jail is freedom.

An apprentice may be allowed to choose the master to whom he is to be bound for years, and a lunatic or minor who is deemed incapable of governing his own affairs may, nevertheless, have the privilege of selecting the guardian who is to govern him. A people may elect their rulers and yet live under an absolute despotism. This was true in old Rome when the king was elected by the whole body of citizens. It is true now of the Western Fulahs in Africa and the Kamtscadales in Asia, who elect their chiefs, but after election must obey the headman's orders. It is true in many of the cities of America, where the people go to the polls year after year in the fond delusion that they nave a voice in the administration of public affairs, whereas, in reality, a ring of rascals holds the city in its grasp, and whichever nominee the citizens may vote for the ring will rule the same as before, enacting its private purposes into law, pouring the public moneys into its purse, filling appointments with its creatures to perpetuate its power, and controlling the city for its plunder, regardless of the interests or the wishes of the people. It is true in the Nation and the States as well as in the cities. The rule of a congress or legislature that does the will of a railroad or syndicate of gamblers in opposition to public opinion and the good of the Commonwealth is a despotism as truly as ever the rule of a Tarquin or a Caesar was. Napoleon himself, the archdespot of modern times, was elected to his imperial power.

The duration of a government or lease of power has nothing to do with its character as free or despotic. A control that lasts but a single year may be as far from freedom as one that endures for a lifetime; and a people electing their rulers each year to govern according to their own sweet will may be no better off than a nation which elects a sovereign to wear the crown for life. The essence of despotism is the control of others for the benefit of the controller, regardless of the welfare of the controlled. The Tweed administration was a despotism, although elected to power. So was the gas legislation of the Philadelphia councils leasing the city works to a powerful and corrupt ring, in spite of the well-known and vigorously manifested opposition of the great mass of the people. So was the action of the black Congress that gave away the people's franchises and money and lands to the schemers who projected the Pacific roads. Men of America, do you govern the country ? Is it your will that is done in Senate Chamber and council hall or is it the will of the Oil Trust, Sugar Trust, Whisky Trust, the railways, and the bankers? He is the sovereign whose will is in control. You are not sovereign, for many things you wish to have done remain undone, and many things are done that you do not wish to have done. Politicians call you sovereigns in their campaign speeches. But it is not true. You have the privilege of choosing which of two or three sets of sovereigns you will have to rule over you, but you are not sovereigns yourselves. The men you elect are your masters during their term of office. You come to them, not as sovereigns to their servants, but as subjects, with humble petitions, which you are not surprised to see them reject or ignore. They give away your property and you are helpless; they pass laws without your approval and against your interest and you can not prevent their taking effect; they refuse to take action on your most pressing needs, and you are powerless until the expiration of their deeds of sovereignty gives you an opportunity to choose a new lot of masters to rule you for another term. This is not a government by the people, but a government by an aristocracy of officeholders elected by the people. You call your rulers "representatives;" and to some extent they are such. Honesty and coincidence of interest do lead them to carry out your will to some extent, but they are free to legislate for their own private interests or the interests of those who furnish inducements for action in their behalf and the people can not prevent it. Representatives have their uses. You need the aid of specialists in legislation, but you do not need to part with your rightful control of your own affairs when you seek their aid and council any more than you need to part with it in dealing with a tailor, a doctor, or an architect.

It is well to employ an architect when you are going to build, but you would never think of giving him power to draw up his plans and put them into execution without submitting them to you for approval; much less would you give him a right to refuse to alter his plans in accordance with your request, or to decide how much of your money should be spent without recourse to you for assent, or to expend your funds for a structure which you strongly disapproved and against which you loudly protested. You would avail yourself of the architect's skill inthe drawing of plans, but you would feel free to tell him what sort of a house you desired, and would expect him to act upon your directions and suggestions, and to submit his plans to you for approval or rejection before beginning to build on your land and on your credit or with your cash. In this case you would continue to control your affairs while availing yourself of the architect's widsom and skill. In the first case the control of your affairs would be in the architect, not in you.

It is the same with legislation. Doubtless it is well to seek the aid and counsel of men well versed in law and skilled in the phrasing of statutes, but it is not necessary to give these men the power to ignore our petitions, nor the right to put the laws they plan in execution without allowing us time and opportunity to express our disapproval and rejection if we wish to do so. There are cases of extreme urgency, in which the architect or the legislative agent must be permitted to act without waiting to consult his principal. Fire, flood, or other unforeseen event may make it imperative that the builder should act on his own judgment, without an instant's delay. Likewise an unforeseen event endangering the public safety may make it needful for our legislators to act at once. But as a rule there is time for consultation and it ought to be required. If you do not require it, if you allow your "representatives" to put their plans into execution without an opportunity on your part to reject them or modify them, you practically place the control of your affairs in the said representatives for the term of their election, and self-government on your part ceases during the said term.

We do not want a government by the people without representatives, nor a government by representatives without the people; but a government by the people with the aid and advice of representatives, or what is essentially the same thing, a government by representatives acting as the people's agents, subject at all times to the orders and instructions of the people, and to total revocation of authority at their will. The first is impossible in a complex society; the second is an abandonment of the principle of self-government; the third combines the good qualities of the representative system with a real sovereignty in the people; it secures the economies and values of representation without sacrificing justice, liberty, and self-government. It uses the legislator, like the architect, to draw up the best plans his knowledge permits; it gives him a right, like the architect's in cases of extreme emergency, to act upon his own unaided judgment, but requires him at all other times to submit his ideas to his principal before putting them in practice, and holds him at all times subject to the orders anil suggestions of his principal. Such is clearly the ideal management of political affairs as well as of business affairs. Indeed, politics is itself nothing but business; the people's business it ought to be, and under their control. We have already seen how this intimate and continuous control of their representatives by the people can be secured in place of the present subjection of the people to their representatives during successive periods. It is a simple matter of extending the use of the referendum.

DIRECT LEGISLATION IN USE IN AMERICA.

It is already a fundamental fact in American government and a settled principle in our legislative system.

The suggested improvement of our representative system to make it harmonize with the law of self-government does not require the adoption of any new principle or method. Both the initiative and the referendum have been in constant use in America ever since the Mayflower crossed the sea. All that is needed is an extension of established principles and methods to cases quite as much within their reason, purpose, and power as those to which they are now applied.

In many New England towns we have the ideal of democracy in respect to local affairs. They are controlled by the people directly. Any 10 men, by petition to the selectmen, may secure the insertion of an item in the warrant for a town meeting, and so bring the matter before the town. Anyone may make a motion or enter the discussion, and all may vote. The town-meeting plan is the initiative and referendum applied to town business.

Direct legislation is also used by all our States except Delaware in making and amending their constitutions, from which it would seem that our citizens are already convinced that it is the best possible plan of legislation, since it is the one they adopt in respect to their highest and most important law.

At first, as we have said, there was no other sort of government. For nearly 20 years after the founding of Plymouth Colony, in what is now Massachusetts, the lawmaking was done in primary assembly of the freemen every quarter, and when the colony grew so large that it was difficult for the people to meet in this way four times a year, it was provided that every town should elect two delegates to join with the bench in enacting all such ordinances as should be judged good and wholesome, and that the whole body of citizens should meet once a year to have a general oversight of the doings of the delegates, repeal any of their acts that were deemed prejudicial to the whole, and pass such new measures as might be needful in the judgment of the people. 1 That was the referendum almost as it is advocated to-day. It lasted from 1638 till 1658, and in a modified form till 1686, but it was lost to state affairs when the colony was united with others and the population became too large to meet even once a year.

1 See Direct Legislation Record, 1S98, p. 33, and " Representation and Suffrage in Massachusetts, 1620- 1691," by Prof. George H. Haynes.

10 DIEECT LEGISLATION.

No one in Massachusetts seems to have thought of the method of polling the whole citizenship on specific measures * for the reason may be that in those primitive, unsophisticated times the delegates really acted very nearly as the people wished them to. The population was comparatively homogeneous in interest, the disturbing influence of powerful class and monopoly interests was unknown, and the modern politician had not been born.

Still the people did preserve direct legislation in town affairs and in the making of the fundamental law, fondly dreaming that this would be sufficient to prevent any possible deflection of wily representatives. It has not done that, but it has proved itself the most perfect of all legislation. No lawmaking in the world has been so smooth, so wise, so effective, so free from taint or suspicion of class interest or corruption as the making of Amercian constitutions and the legislation of New England town meetings. Compare the honest, public-spirited, effective, progressive, and economical government of a Maine or Massachusetts town with the dishonest, selfish, narrow, ineffective, nonprogressive, and extravagant governments of our ringruled cities and you will get some idea of the natural tendencies of the two systems — leaving the lawmaking power with the people or giving it to a limited number of men to play with as they please for a specified time. No other part of the country can be compared to New England in the completeness of its local improvements, yet nowhere is. the debt so small as in New England towns; nowhere else are the voters so well informed; nowhere else is such ample provision made for the education of children. 8

Thomas Jefferson referred to the town meeting as "the wisest invention ever devised by the wit of man for the perfect exercise of self-government and for its preservation." Prof. John Fiske says that "Government by town meeting is the form of government most effectively under watch and control. Everything is done in the full daylight of publicity. The town meeting is the best political training school in existence. It is the most perfect exhibition of what President Lincoln called ' government of the people, by the people, and for the people."' Prof. Bryce says, "The town meeting has been the most perfect school of self-government in any modern country. * * * It has been not only the source but the school of democracy."

The use of the referendum in the United States is not confined to town affairs and constitution making. Anyone who will go through the laws of the various States, marking all provisions for submitting to popular vote franchises, licenses, contracts, bond issues, charters, and all sorts of laws and ordinances, will discover a vast number of referendal clauses and will begin to realize how important a place in our law is already occupied by direct legislation in State and city affairs.

i In other places the thought occurred and was acted upon. In the seventeenth century the fundamental law of Rhode Island required that all laws passed by the general assembly should be referred to the people, and this was done until the law was superseded by a royal charter. In reference to the early constitution of Pennsylvania, Noah Webster says, "I can not help remarking on the singular jealousy of the constitution of Pennsylvania, which requires that a bill shall be published for the consideration of the people before it is enacted into a law, except in extraordinary cases," and remarks that this reduces the legislature to an advisory body. In Virginia, Jefferson drafted a provision that all laws, after passing the legislature, should be voted on by the people, and advocated it as a part of the State constitution, but it was defeated for fear it might touch slavery. This was the referendum in its highest form — the obligatory.

2 See "Town and village government," by H. L. Nelson, Harper's Monthly, vol. 83, p. Ill, June, 1891, contrasting the effects of the New England town meetings with the effects of the village government in States not possessing the town meeting.

In the single State of Iowa a moderate search, by no means exhaustive, has revealed 30 provisions for the popular initiative and 20 provisions for the referendum, most of them obligatory; and such provisions are not more prevalent in Iowa than in many other States.

The points I wish to emphasize here are: First, that our laws are

{)ermeated by the principle of direct legislation; second, that in a arge body of cases the obligatory method is in use; third, that in a considerable number of other cases the option rests with the people; fourth, that in another large body of cases the option is expressly given to the executive or legislative authorities; and fifth, that in all other cases, according to the law of most of our States, 1 the referendum may be used at the discretion of the legislative authorities — - the legislature or council may submit any question to the voters, so that really the only change we ask for is the placing of the option in the hands of the people instead of leaving it entirely with the legislators. If it rests with the councilmen to decide whether a franchise, lease, or other matter shall be submitted to the voters, they will be ready enough to submit enactments with which they have tried to act honestly and in respect to which they really desire to follow the people's will; but when there is a steal on foot and the councils are conscious of dishonest purpose they will refuse to submit the matter to the voters.