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The Initiative and Referendum
The participation of the people in the making of constitutional law is not only on the increase,' but there is also a decided tendency to extend the power of the voters to ordinary legislation as well. Indeed, the constitution of Oklahoma provides that the style of all bills shall run "Be it enacted by the people of the state of Oklahoma."
As we have seen, the practice of even submitting constitutions to popular ratification was not one of the original devices of our constitutional system, only three of the eighteenth-century constitutions being submitted to the electorate for approval or rejection. Slowly, however, the idea came to be accepted that voters, in a final analysis, had the right to pass upon their own fundamental laws. The New York constitution of 1821 was referred to the electorate, and it further provided that amendments should likewise be submitted to the voters after having received legislative approval. By the middle of the nineteenth century the doctrine of the constitutional referendum was fairly fixed, and most of the constitutions since 1850, excepting those of Delaware (1897), Mississippi (1890), South Carolina (1895), and Virginia (1902), have been approved by popular vote.
The idea of referring such matters to the people was, however, not adopted without a strong opposition, which was based on the ground that a convention, duly chosen and solemnly deliberating, was the best institution for making fundamental laws, and that no further action was required. Even as late as 1894, Mr. Dean, speaking in the New York constitutional convention, declared that the practice of referring constitutions to the people merely encouraged cowardice on the part of the representatives and enabled them to shirk their own responsibilities by leaving the power of making the final decision to the electorate. But Mr. Dean's protest was in vain, for the constitution drafted by that body provided that all future amendments, whether by way of conventions or legislative enactment, should be submitted to popular approval.
The doctrine of popular referendum was also early extended
1 See above, p. 96.
Record of the Constitutional Convention (1894), Vol. II, p. 801.
to several important matters besides constitutions and amendments. The courts have usually held that, in the absence of express constitutional warrant, the legislature has no power to refer general laws to the electorate; but some of them have maintained that it is proper to refer to the people the question of the time when a certain law shall go into effect. Under the cover of this legal theory several state prohibition laws have been referred to popular approval. The legislature of New York, in 1849, submitted the proposition of establishing free schools to the decision of the electors; and the question of woman suffrage was laid before the voters of Massachusetts in 1895. It is likewise common to require the reference of special financial measures to popular approval; for example, the constitution of New York fixes a certain debt limit, beyond which the legislature cannot go without receiving the approval of a majority of the electors voting on the proposition. The practice of referring local laws of a special character, such as those selecting county seats and changing county or city boundaries, was also adopted early in our history.
It was not such a long step, therefore, from these and similar practices, to the adoption of a complete system of initiative and referendum, whereby the voters may initiate any measure or require the referendum on any legislative act. Many causes are responsible for this extension of older practices. In some instances, legislators were only too glad to shirk their responsibilities by leaving certain questions to the decision of popular vote. The practice of enlarging the state constitutions so as to include provisions of a temporary and statutory, rather than a fundamental, character led to the breaking down of the old distinction between the solemn formulation of constitutional law and the enactment of mere statutes. Perhaps the most important reason, however, was a distrust in the legislature1-a distrust that filled our state constitutions with long and detailed limitations on the powers of legislatures and finally ended, in several states, in the assumption of ultimate legislative authority by the voters.
It was under these circumstances that the initiative and referendum were adopted as remedies for our legislative evils. The system is a simple one. The initiative is a device whereby 'Readings, pp. 478, 483. 2 Readings, p. 413.
any person or group of persons may draft a statute, and on securing the signatures of a small percentage of the voters may compel the state officials, with or without the intervention of the legislature, to submit the same to popular vote; and if the required popular approval is secured, the proposal becomes a law. The referendum is a plan whereby a small percentage of the voters may demand that any statute passed by the legislature (with the exception of certain laws) must be submitted to the electorate and approved by a stipulated majority before going into effect.
Not less than nine states, including South Dakota, Oregon, Idaho, Delaware, Missouri, Montana, Utah, Maine, and Oklahoma, have established the initiative and referendum in one form or another. It is only in Oregon, however, that it may be said to have received anything like a fair test; and that state has also worked out the most complete scheme, including a plan for educating the voters on measures referred to them. The system was established in Oregon by a constitutional amendment approved in June, 1902. This amendment provided that any legislative 2 measure might be initiated by a petition bearing the signatures of eight per cent of the voters and containing the proposed measure in full. The petition must be filed with the secretary of state not less than four months before election day; it is mandatory upon him to submit it to popular vote, and if the proposal is approved by a majority of all the electors voting on it, it becomes a part of the statutory law of Oregon. Any act passed by the legislature must likewise be referred to the electorate if five per cent of the voters file a petition within ninety days after the adjournment of the legislature, demanding such a referendum.
The plan has been tried in several instances in Oregon. In 1904, local option and direct primary laws were adopted by popular vote on petitions duly initiated. Two years later acts. laying a gross earnings tax upon certain carriers, and prohibiting free passes and discriminations by public service corporations, were adopted, and a proposition to amend the constitution so as to establish woman's suffrage was defeated. *
'Political Science Quarterly, December, 1908.,
2 See above, p. 460, as to constitutional measures.
3 Except emergency laws relative to public peace, health, or safety.
The most noteworthy feature of the Oregon system is, however, the recent statute providing for the publication and distribution of arguments for and against the propositions submitted to the decision of the voters. Under this law the supporters and opponents of any particular measure may prepare their arguments at length; these arguments are printed by the state (at the expense of the private parties concerned), together with the measures to be referred to the voters; and a copy is sent to every voter in the commonwealth.' It is contended by the friends of this system that it has an immense educational value in arousing the interest of the people; in securing the consideration of each measure on its merits; and in turning the searchlight of publicity and discussion upon all the important political issues in the state. In 1908, the measures referred to the voters and the arguments favoring and opposing certain of them constituted a booklet of 124 pages, a copy of which was sent by the secretary of state to every voter. The arguments are kept within a reasonable compass by the provision that whoever prepares them must pay for their publication at a regular rate. On the question of women's suffrage, which was submitted to popular vote and defeated, there were four pages of favorable argument signed by twelve women representing the Oregon Equal Suffrage Association, while the negative side of the case was presented in two pages prepared by the Oregon Society Opposed to the Extension of the Suffrage to Women.2
A modified form of the initiative was established in Illinois, in 1901, by a law creating what is known as the "Public Opinion System." Under this law twenty-five per cent of the registered voters of any incorporated town, village, city, township, county or school district may compel the submission of any local question to popular vote; and ten per cent of the registered voters of the state may secure the submission of a proposition to the electorate of the entire commonwealth. The petition for taking public opinion on a question must be filed not less than sixty days before the day of the election at which it is to be submitted. If the voters approve a proposition referred to them, it is
1 See Readings, p. 415, for an extract from this remarkable statute. 2 See interesting article on this system by Professor George H. Haynes in the Political Science Quarterly, Vol. XXII, p. 484.
For the proposed Massachusetts law, Readings, p. 418.
understood that public opinion demands its enactment into law; but as the members of the legislature are not pledged to obey the wishes of their constituents, this expression of public opinion is regarded as merely advisory and, therefore, of slight importance.
The system of initiative and referendum is being extended to local as well as to state-wide matters.1 The constitution of Oklahoma provides that the powers of the initiative and referendum, reserved to the people for the state at large, are also reserved to the voters of every county and district therein as to all local legislative or administrative actions in their respective counties and districts. A Nebraska law of 1897 provides that an ordinance or any other measure may be proposed in counties, cities, and other local divisions by a petition signed by fifteen per cent of the voters and given the effect of law by the approval of a majority. The same statute authorizes local government bodies voluntarily to submit propositions to popular ratification, and requires them to refer any measure to popular vote if it is demanded by a petition bearing the signatures of fifteen per cent of the electors. According to an Indiana statute of 1899, the referendum may be demanded by forty per cent of the voters in an incorporated town within thirty days after the passage of any ordinance to purchase water or light plants or grant franchises; and if any such proposition is rejected on the referendum, no similar ordinance can be enacted within three years. The various local option laws permitting the voters of counties and other units of local government to pass upon the question of licensing saloons may likewise be regarded as a part of the general scheme of initiative and referendum.
The advocates of this new form of government have carried their agitation to Washington, as well as to the capital of nearly every state in the Union, and in 1907 it was stated on good authority that no less than 110 members of the House of Representatives were at that time pledged to vote for the adoption of the referendum for acts of Congress or bills passed by either house, and for the establishment of the initiative for certain topics, including popular election of United States Senators, parcels post, immigration, and the regulation of interstate commerce.2 1 For cities, see below, p. 597.
'American Political Science Review, Vol. II, p. 39.