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About the same time, an advisory system of initiative and referendum (similar to the one in Illinois) was defeated in Massachusetts by the refusal of several members of the legislature to carry out their pledges to their constituents; and Governor Johnson, in his message to the Minnesota legislature, commended the system, and stated that he was firmly of the opinion that its adoption was desirable.
It is not at all surprising that a system which proposes to vest the legislative power in the mass of voters, rather than in the representative branch of the state government, and which has already been adopted in so many states, should awaken considerable opposition and criticism. It is contended by the opponents of the initiative and referendum that legislation, being a difficult and technical matter demanding the attention of experts and careful deliberation, cannot be done effectively by the mere counting of heads. Long ago Austin said that “what is commonly called the technical part of legislation is incomparably more difficult than what may be called the ethical. In other words, it is far easier to conceive justly what would be useful law than so to construct that same law that it may accomplish the design of the lawgiver." This technical difficulty is illustrated by the anecdote, related by Mr. J. B. Sanborn, of a member of a legislature who once said to him, "When I came to the legislature I introduced a bill to prohibit the manufacture of filled cheese. It would have done it all right, but it would have prevented the manufacture of all other kinds of cheese, too." A practical example of the failure of the initiative and referendum to secure due consideration of the technical difficulties in lawmaking is afforded by the anti-pass law, submitted in Oregon on an initiative petition in 1906, which was so badly worded that, construed literally, it prohibited a railroad company from giving passes to its own employees and allowed it to issue passes to the employees of other roads. It finally failed to become a law in spite of the 57,281 votes for and 16,799 against, because the petitioners had neglected to insert an enacting clause.
To this contention that popular law-making does not secure proper deliberation and technical service, the champions of the initiative and referendum reply that even in our legislatures there is very little, if any, real searching debate and criticism on legislative measures, while expert technical service is practically
lacking except for bills desired by corporations which are willing to furnish their own expert service. They also cite innumerable instances of important laws poorly prepared, badly worded, and sadly deficient in technique, which have been passed after long discussion in representative bodies. The criticism that discussion and deliberation are requisite in law-making does not, of course, apply with the same force to the referendum (which merely secures the reference of a measure duly passed by the legislature) as it does to the initiative, in which case the proposal is drafted by the private parties who demand its submission to the electorate.
The recognition of the necessity for discussion and technical work in wise legislation led to the adoption of a modified scheme in Maine, according to which the legislature may reject any measure proposed by the initiative, enact a competing measure of its own, and submit both to popular approval, permitting the voters to choose between them. "This device," says Mr. Sanborn, "enables the legislature to correct faults in the proposed legislation. The substitute law will undoubtedly be far superior to the initiative bill. The existence of the two bills will, however, complicate greatly the work of the people. Voting upon a single bill is difficult enough; the choosing between competing bills may be much more difficult." 1
The second leading argument against the initiative and referendum is the frequent lack of interest shown in propositions submitted to popular vote.2 Mr. Philip L. Allen, in a recent article, gave the statistics of the popular vote upon seventeen different laws and constitutional amendments and compared that vote with the simultaneous vote for public officers; the vote cast in eight of the seventeen cases was less than fifty per cent of the vote cast for the officers and in only six cases did it exceed sixty per cent. On an amendment to the constitution of Illinois, in 1896, only about one-fifth of the voters for presidential electors expressed any preference; while only about the same proportion of voters acted on a proposed amendment to the constitution of Kansas in 1906. The most notorious instance, perhaps, is that of the Louisiana election of the same year, in which a number of important constitutional amendments were carried into effect by 'The Political Science Quarterly for December, 1908, p. 601. 2 See Readings, p. 429.
a vote of only one-sixth of the electors.1 It is clear that, if majority of all the voters is required for the approval of a measure, it will be defeated, unless it is of such a character as to arouse an extraordinary interest among the people. Oregon appears to be the only state in which the voters at large seem to take a deep interest in political measures. The vote on proposals referred to the electors of that state in 1906 varied from 63,749 to 83,899, while the vote for governor in that year was 96,715.
Of course, it must be pointed out that the vote for public officers can hardly be deemed a correct measure of public interest in elections, owing to the intense activity of party organizations in getting out the voters; and as Mr. Sanborn puts it, "If those who vote [on referenda] are the most intelligent, if they express the best public opinion, if the influence of the uneducated and the corrupt is substantially eliminated, and if those who vote upon the question vote with intelligence, we may still, in spite of the smallness of the vote, have conditions under which the referendum may be considered as an efficient aid to the work of the legislature." To this contention the advocates of the initiative and referendum add that the slight interest of the voters in important legislative measures is evidence of the sad need for political education, which their system promises to give in time, if properly devised.
At its best, however, legislation by minorities presents grave difficulties. It is very easy to secure the signatures of the small percentage of voters required to initiate a measure, whether it be one of great public significance or a proposal designed to advance the views or interests of a petty and ambitious faction. The proposal may be so worded as not to awaken any general recognition of its true importance, and under the cover of the provision that a mere majority of those voting upon a measure can carry it into effect, a small faction or active group may secure the passage of a law which does not represent even the interest of any considerable portion of the population, or is wholly unadapted to the actual social conditions to which it is intended to be applied.
Indeed, the third argument advanced against the referendum is based on the ground that it is very easy for any pernicious interest in the state, affected adversely by a good law, to secure signatures to a petition demanding a referendum and thus postpone the date 1Article by Professor J. W. Garner, Proceedings of the American Political Science Association, 1907, p. 164.
of the law's going into effect for a considerable period - at least until a popular vote could be taken — and, perhaps, through the indifference of the majority defeat it with a solid and active minority. Mr. Sanborn, in the article cited, contends that the recent experience of South Dakota illustrates this objection, because the three measures passed by the state legislature in 1907, on which referenda were demanded, were the acts extending the period of residence necessary to securing a divorce, prohibiting the shooting of quail for a long term of years, and forbidding theatricals, circuses, and similar public exhibitions on Sunday.
Another argument against the initiative and referendum is the contention that responsibility for law-making is shifted from a definite group, known as the legislature, to a large and irresponsible group of persons who mark their ballots within the secrecy of the polling place. If the legislature makes mistakes or fails to reflect popular will, its members can be punished, if the electors are interested enough to defeat those who seek reëlection; whereas it is impossible to fix any responsibility or to punish any one politically, if a badly drawn or unwise measure is passed by a popular vote.
It may be said, however, that so far the system of initiative and referendum has not seriously affected the representative element in government wherever adopted. The fear of the referendum may have driven lobbyists from some state capitals, but it may be questioned whether any important laws have been secured that could not have been obtained through ordinary legislative channels. There can be no doubt that representative government, where wisely and efficiently operated, is the best form of government yet devised. Nevertheless, the initiative and referendum, especially for important matters, have undoubtedly found a permanent place among our institutions.
Popular Control through the Ballot1
Under ordinary circumstances, public control over the government is manifested in the nomination and election of executive and legislative officials-not in making constitutional amendments or operating a system of initiative and referendum. The instrument of control possessed by the average voter, therefore,
1 Taken from my article, "The Ballot's Burden," in the Political Science Quarterly for December, 1909.
is his ballot a fact much neglected in our political literature. Those who are active in party organizations may, of course, bring pressure to bear on certain public functionaries in proportion to their "influence"; but in most instances the penalties of being active in politics are too severe for the man who has no talent in devising summer outings, winter festivals, huckleberry-pie contests and other diversions for keeping his "fellow-citizens" in good humor with the organization. An excess of this kind of "practical politics" constitutes, moreover, a danger to liberty and, by lowering the standard of political intelligence and public interest, tends to make a genuine democracy impossible. Accordingly, the great question of popular control is not how best to keep the rank and file under party discipline, but how to make it possible for the voter with his ballot in hand on election day to become a real factor in determining the character of our government.
Nowhere has the "sovereign voter" received more adulation than in the United States, and nowhere has the power of sovereignty been more frittered away in futile agitations and the collateral incidents of practical politics. We have rightly felt that there was something gratifying and inspiring in the spectacle of the common people rising to the height of self-government; and we have paid wordy tribute to the power of the ballot; but we have made little effort to ascertain what the ballot can really do. We have apparently assumed that it can do everything, from deciding who among ten thousand should be clerk of a municipal court to prescribing what should be done with the surface dirt removed from a street by a public contractor. For more than a century we have been adding burdens to the ballot, until the outcome of the tendency is the paralysis of the very control which popular election is supposed to afford. The theory underlying the doctrine that public control can best be secured by establishing as many elective offices as possible is simple enough. A number of men are candidates for a public office. Each of these candidates entertains certain notions of policy with regard to the office he is seeking, and each of them has his own standards of efficiency and integrity. The voters select the one who most accurately reflects the prevailing public sentiment and seems most likely to realize the dominant public 1 Readings, p. 582.