DIRECT LEGISLATION

Initiative and Referendum. The is sometimes asserted, between conmost striking feature of the pro- stitutional and statutory law, but it gress of popular government in the does in many cases make the process states during 1911 has been the ad- of altering the fundamental law as vance of the initiative and referen- easy as that of adopting a statute dum. At the beginning of the year which the legislature has refused to the procedure for direct legislation adopt. Of the ten states which had by the people existed in some form adopted direct legislative procedure in ten states. During the course up to the beginning of 1910, five of the year, the new state of Arizona adopted it both for statutory enactwas admitted with the initiative and ments and for constitutional amendreferendum, and a constitutional ments, namely, Oregon (1902), Oklaamendment to establish the same homa (1907), Missouri (1908), Arwas adopted in California, making kansas and Colorado (1910), and one, the total number of direct legisla- Nevada, which in 1905 adopted the tion states now 12. During the year, referendum only, has voted to subthe appropriate steps for the sub- mit the constitutional and statutory mission of constitutional amend- initiative in 1912. South Dakota ments in 1912 were taken in seven (1898), Utah (1900), Montana other states, Florida, Wisconsin, (1906), and Maine (1908), have no Idaho, Nebraska, North Dakota, effective procedure for constitutionWashington and Wyoming. In an- al amendment by direct action of the other state, Indiana, a new con- people. Both the new direct-legislastitution containing the initiative tion states, Arizona and California, and referendum was drafted to apply the procedure to constitutional be submitted to the voters. Also amendments as well as to statutory in 1912, the state of Nevada, legislation. Of the seven states which has possessed the referendum which have provided for the subsince 1905, is to vote on the initiative. The rapidity with which the adoption of procedure for direct legislation by the people seems likely to spread over the country makes timely a discussion more in detail of the features of various initiative and referendum amendments.

Procedure. The vital elements in the procedure for direct legislation by the people are four in number: (1) its scope; (2) the majority required for enactment by popular vote; (3) the size of the petitions required for the submission of measures to the people; and (4) the means adopted for acquainting the voters with the measures to be submitted.

mission in 1912 of a constitutional amendment to establish the initiative and referendum, Washington and Idaho restrict it to statutory legis lation; while four, Nebraska, North Dakota, Wisconsin, and Wyoming, extend it to constitutional amendments.

As

Majority Required for Enactment. -The majority required for the adoption of a measure submitted or referred to the people may be either a majority of all votes cast at the election at which the measure is submitted or referred, or it may be a majority of the votes cast for or against the particular measure. a rule, between 10 and 30 per cent. of the voters who go to the polls Scope. The process of direct leg- vote upon candidates only, the popuislation may extend to the adoption lar interest in measures never being of constitutional amendments as well as great as in candidates. Hence, as to the enactment of ordinary leg- the requirement of an absolute maislation, or it may be restricted to jority of all votes cast at an election the latter alone. The effect of ex- is equivalent to the requirement of tending the initiative and referen- a five-ninths to five-sevenths majordum to constitutional amendments ity of the votes actually cast upon a is to simplify the procedure for the measure. The effect is to render amendment of the constitution. It more difficult the enactment of legisdoes not wipe out the distinction, as lation by the people. This effect is

clearly indicated by the results in The other states providing in 1911 Oklahoma, where such a requirement for the submission of amendments is made for the enactment of meas- conform to the normal practice of ures submitted to popular vote. requiring upon petitions the valid Every one of the 11 measures sub- signatures of 8 or 10 per cent. of the mitted since the adoption of the qualified voters. Several of the Oklahoma constitution in 1907 has states provide further safeguards been defeated, although five of these against the abuse of the initiative measures were approved by a ma- and referendum in the shape of rejority of those voting thereon, one quirements relating to the geographof them by a vote of more than two ical distribution of signers. Thus, to one. Those attending the elec- the Nebraska amendment provides tion who did not vote upon meas- that to make a petition effective it ures were, in effect, counted in the must be signed by five per cent. of negative, a procedure which is no the qualified voters in each of at more rational than to count the least two-fifths of the counties of votes of those who did not go to the polls at all. Both alike may fairly be assumed to be willing to abide by the decision of those who are sufficiently interested in a measure to vote thereon. The requirement of a majority of all votes cast at the election for the adoption of a measure submitted to the people has the further consequence, perhaps unforeseen by those responsible for it, that any act of the legislature can be almost certainly defeated by a dissatisfied minority of the people large enough to file a referendum petition. Of the states which provided in 1911 for the submission of a constitutional amendment to establish the initiative and referendum, Wyoming alone requires a majority of all votes cast at the election for the adoption of a measure, the others being content with a majority of the votes cast thereon.

the state. A reasonable requirement for the distribution of petitioners is doubtless desirable to prevent the submission of measures of purely local interest, but such requirements may easily be made a means of encumbering the procedure for direct legislation without any corresponding advantage to the people.

Publicity Pamphlets.-The means adopted in Oregon, the state in which the process of direct legislation has been most freely used, for acquainting the people with the measures to be submitted to them is the publicity pamphlet. The text of each measure to be submitted to the people is printed in full, together with an argument in favor of each measure prepared by its proponents, and arguments against measures prepared by any citizens who may wish to oppose them. A copy of the pamphlet is mailed to every voter Size of Petition. The size of the in the state in advance of the elecpetition required for the submission tion, together with a description of of measures to the people varies the short titles to be used for the from 5 to 25 per cent. of the quali- several measures on the official balfied voters of the state. The re- lot. The Oregon publicity pamphlet quirement of a 25 per cent. petition has been freely employed by the adis found in the Wyoming amend- vocates and opponents of measures. ment, and is obviously intended to and its distribution has effectively permit direct legislation by the peo- contributed to the education of the ple only in case of great emergency. people. The publicity pamphlet is Such a high percentage cannot be re- also provided for in Oklahoma, but garded as appropriate for a normal its distribution has been managed utilization of the direct legislative with indifferent success. In 1911, the process. The Wyoming amendment legislature of South Dakota authorfurther requires that all signatures ized the publication of a publicity be secured in the presence of three pamphlet hereafter in that state, and witnesses, which practically means the constitutional amendments subthat canvassers for signatures must mitted by the legislatures of several work in groups of three, an unneces- other states either authorize subsesary source of additional expense. quent legislatures to make appro

priate provision for the information arise, which should be enforced by of the voters, or themselves contain the executive of the state. Clearly provision for the publication of the the executive should have no distext of measures together with ar- cretionary authority in such a case, guments, as is done in the amend- for such authority would amount to ment adopted in 1911 in California. a veto power over legislation by the The pamphlet distributed to Califor- people. No state would deliberately nia voters prior to the special elec- surrender to the governor the veto tion in Oct., 1911, was however a power over statutes or constitutional model of how not to print a publicity amendments enacted by the people. pamphlet. It consisted of two un- Hence, several of the more recent bound sheets, closely printed on both amendments provide that in case of sides in columns of fine print, one the adoption of competing measures sheet measuring 91⁄2 by 12%1⁄2 in., the by the people, that measure shall be other 25 by 38 in. Anything more enforced in its entirety which reinconvenient for perusal by the ceives the greatest affirmative vote, voters could scarcely be devised. and competing measures shall be disEmergency and Competing Meas- regarded in so far as they conflict ures.-There are certain other ele- with it. To provide that any part ments in the procedure for direct of a measure duly enacted by the legislation for which better provision people shall be disregarded seems is made in some states than in anomalous, but in fact it is in harothers. One is the procedure with mony with the spirit of American regard to emergency measures. Some government. It is merely another provision must be made for prompt illustration of the principle by legislative action in cases of emer- which courts refuse to enforce statgency. Direct legislation by the utes conflicting with the fundamenpeople, however, is ineffective, un-tal law as expressed in the state or less the people can temporarily post- federal constitution. In the present pone the enforcement of measures until after the will of the people has been ascertained. The early procedure was to permit the legislature to declare a measure an emergency Amendments to Initiated Measmeasure, and put it into effect at ures.-A more serious problem in the once. Since this declaration was procedure for direct legislation by made by majority vote, and could the people lies in the difficulty of be incorporated in the preamble of amending measures initiated by the bill itself, the effect was to en-popular petition. Ordinarily, the able the legislature to put any meas- people must accept a measure as ure, however objectionable to the drafted by some self-constituted inpeople, into immediate operation. It itiative committee, or wait two years is provided, therefore, in several of until a more satisfactory measure the more recent amendments, (see, can be agreed upon by the proponfor example, the proposed Wisconsin ents of the measure and resubmitamendment), that no measure shall ted. One solution of the problem is be declared an emergency measure to authorize the legislature to subexcept by a separate vote, taken in mit a competing measure, containing advance of that upon the measure such amendments to the itself, and carried by a two-thirds initiated by popular petition as may majority in each house. Such a pro- appear desirable. The objection to vision is a proper safeguard for the this procedure is that it puts the people, and should be inserted in original proponents of legislation at every direct-legislation amendment. a disadvantage. Having secured the Another question arises in the case necessary signatures to initiate a of the submission of two or more certain measure, they are unable to conflicting measures on the same alter it, or in any way to profit by subject. Such competing measures subsequent popular or legislative dismight conceivably all be enacted by cussion of their measure. Opponents the people, and the question would of the measure, however, if in con

case, the people themselves lay down the rule by which the more fundamental of the conflicting laws shall be determined.

measure

measure upon its own motion. The Wisconsin procedure for direct legislation possesses all the merit that can be found in the more usual procedure, and also the additional merit of placing the proponents of legislation to be referred to the people upon an equality with their opponents, and of securing the utmost deliberation during the initial stages of enactment.

eral election upon public questions for the better information and guidance of the representatives of the people chosen at the same time to the state legislature. In 1910, one of the questions submitted to the people was a proposition instructing the legislature to submit an initiative and referendum amendment to the state constitution at the next general election, that is, in 1912. This proposition was endorsed by a majority of the voters voting thereon in every senatorial district in the state, and carried the state as а whole by a vote of more than three to one (447,908 to 128,398). The in

trol of the legislature (as they presumably are, or it would not have been necessary to initiate the measure by popular petition in the first instance), may submit a substitute, cleverly drafted for the purpose of frustrating the designs of the original proponents of legislation. Having the advantage of the last word, the legislative politicians are not unlikely to succeed in discrediting the handiwork of the unofficial initiators The Illinois Situation.-The charof measures. acter of the controversy over the The Wisconsin Plan.-The Wiscon- adoption of the initiative and refersin initiative and referendum amend-endum in other states is well illusment seeks to overcome this defect trated by the events in the state of in the ordinary proceedure for direct Illinois. In that state, there is prolegislation by an original device. It vision for a public-opinion ballot or omits the usual provision for the popular advisory vote at each gendirect submission of measures by popular initiative petition. On the contrary, it expressly provides that no measure shall be submitted to the people, unless it has first been submitted to the legislature. A measure, however, may be submitted to the legislature by any citizen who can find a single legislator to introduce it. No measure would be likely to find favor with the people which could not at least secure an introduction to the legislature. Hence, the necessity for initiative petitions is removed. Once a measure has been submitted to the legislature, it may then be referred to the people by a referendum petition, initiative and referendum were also its original or in any amended form, promised in both the Republican and whether favorably acted upon by the Democratic party platforms, and in legislature or not. The effect is to addition a majority of the members secure to the people every advantage of the newly chosen legislature had possessed by the initiative and refer- given their personal pledge to be endum through the use of the refer- guided by the results of the publicendum alone, together with the im- opinion ballot. The initiative and portant additional advantage that referendum had also been endorsed the proponents of legislation are not by the state grange, the state fedirrevocably committed to their meas-eration of labor, and numerous other ure in its original form, but may state organizations. Under these profit by all subsequent popular and circumstances an initiative and reflegislative discussion, and finally se- erendum amendment was introduced cure the reference of their measure into the senate, and passed the sento the people in its most perfect ate unanimously. In the house, form. If the opposition in the leg- however, although passed by a large islature desires to submit a compet- majority, it failed to secure the twoing measure, it must do so through thirds vote required for submission the same means as the proponents of to the people. The same result octhe measure, that is, by a popular curred in several other states where referendum petition secured within the popular demand was apparently 90 days after adjournment. The leg- as overwhelming as in Illinois, notislature may not submit a competing ably in Minnesota and Kansas.

THE RECALL

By the recall is meant legal provi-, whenever it should see fit. Neversion for the retirement of an elected theless, President Taft vetoed the officer before the expiry of his term statehood bill providing for the reof office, if he has forfeited the con- call of judges, and the state was fidence of the voters. It is less dras- finally admitted without it. It retic than impeachment, and is in- tained, however, the recall of executended to be applied primarily to leg- tive and legislative officers as in Oreislative, rather than executive and ju- gon. The states of Washington, dicial, officers. It has been intro- Idaho and Wisconsin provided for the duced into a number of American submission of the recall without apcities, and was introduced into Ore- plication to judges in 1912, and the gon to apply to state officials in 1908. proposed new constitution for Indi(See Popular Government and Cur-ana to be voted on in 1912 also conrent Politics, AMERICAN YEAR BOOK, tains provision for the recall of 1911, pp. 151, 152.) executive and legislative officers. The Arizona Constitution.-The Nevada took the appropriate steps recall, as applied to state officers, se- for the submission in 1912 of a recall cured a most extensive publicity dur- amendment, including the recall of ing the past year through the action judges, and California submitted of the constitutional convention held such an amendment at a special elecin 1910 in the incipient state of Ari- tion held October 10, 1911. The Calizona. (See also XII, New Mexico |fornia recall amendment was adopted and Arizona.) The constitution by an overwhelming majority. drafted by this convention and sub- Local Recall.-The local recall has sequently accepted by the people of been widely adopted during the year Arizona, contained, among other in connection with the spread of the popular features, the state-wide re- commission form of city government, call. The Arizona recall was fash- and has been put to some use. (See ioned after that adopted in Ore- XI, Municipal Government.) The gon in 1908, and included the number of petitioners required to orjudiciary. Congress was reluctant der a municipal recall election is to admit a state with such an usually 25 per cent. of the number of innovation in its constitution. It was those voted for all candidates for the urged that the issues involved in the office in question at the last precedrecall of judges were not suitable for ing election. This number is high determination by the people, that enough to make recall proceedings the people could not be trusted to impracticable except in cases of use such a power prudently, and that grave necessity. The California the result would be to drag the amendment provides that for orderjudges into the most undesirable pol- ing a recall election upon an officer itics, to deprive them of their inde- elected by the state at large, a 12 pendence, and to debase their charac- per cent. petition shall be required, ter. On the other side, it was re- and for ordering a recall election plied that the people who chose upon a state officer elected in any their servants should have the power minor division of the state a 20 per to dismiss them, and that the judi- cent. petition shall be required. If ciary were intended to be the ser- the officer sought to be removed was vants of the people like other public elected in the state at large, the reofficers. Moreover, even if the ex- call petition must be circulated in periment were a doubtful one, a at least five counties of the state and state should have the right to deter- must be signed in each of such counmine for itself the details of its ties by voters equal in number to at frame of government, provided it ad- least one per cent. of the entire vote hered to the republican form. Final- cast in such counties at the last elecly, it was pointed out that opposi- tion. The California amendment is tion by Congress to the recall of intended to be self-executing, and judges was futile, since the state provides in detail for all anticipated once admitted to the Union, could contingencies in the exercise by the extend the recall to the judiciary people of the power of recall.