title: The initiative, referendum and recall
text: % *'•••• ^ * O •• .&* *&nsr.t *» ^ -j fX V *> lV . «. i • . <$> # a^ ^q, IP*+ ^o 1 o, ♦7KT*' A <^ *o • » « 9 <^ ^ a* /^V^ ^ ^ * % i!Sife£. ^ -> /^VaV ^ >6* ^JM '*. •7?Z* A o0 \*^.;/ %-^y... v^y •IK' V* '&& % *S 'Mt' ^ ^ <^, •- v A v : 'i /iaKvV,^ -^fefc V./ ;<dfeft w .* THE INITIATIVE REFERENDUM AND RECALL NATIONAL MUNICIPAL LEAGUE SERIES THE INITIATIVE REFERENDUM AND RECALL EDITED BY WILLIAM BENNETT MUNRO NEW YORK AND LONDON D. APPLETON AND COMPANY 1920 i^i^&n;3jan 9 h' y :'t Copyright, igi2, by D. APPLETON AND COMPANY Printed in the United States of America THUJffBFBB 398726 DIB 398726 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 fea- tures of our governmental (federal, state and munici- pal) machinery, or merely to afford the means of cor- recting 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, dispassion- ate 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 Com- mittee 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 Theodore Roosevelt 52 III. — The Issues of Reform. By Governor Woodrow Wilson . . 69 IV. — The Development of Direct Legislation in America. By Robert Treat Paine ... 92 V. — The Referendum in the United States. By President A. Lawrence Lowell . . . .126 VI. — Direct Legislation as an Ally of Represent- ative Government. By Professor Lewis Jerome Johnson 139 VII. — Representative as Against Direct Legislation. By Congressman Samuel W. McCall . .164 VIII. — A Defence of Direct Legislation. By Senator Jonathan Bourne, Jr 194 IX. — The Practical Workings of the Initiative and Referendum in Oregon. By Joseph N. Teal 217 X. — A Year of the People's Rule in Oregon. By Professor George E. Eaynes .... 233 vii CONTENTS CHAPTER PAGE XI. — The Unfavorable Results of Direct Legisla- tion in Oregon. By Frederick V. Holman. 279 XII. — The Use of the Recall in the United States. By Herbert S. Swan 298 XIII. — The Recall as a Measure of Popular Control. By Thomas A. Davis 313 XIV. — The Recall in Los Angeles. By Charles Dwight Willard 321 XV. — The Recall in Seattle. By Fred Wayne Catlett . 326 XVI.— Sources and Literature 342 Appendix 349 Index 351 vm THE INITIATIVE, REFERENDUM AND RECALL CHAPTER I INTRODUCTORY There has been no more striking phenomenon in the development of American political institutions dur- ing 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 rati- fication to the whole body of voters. By the referen- dum 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 accept- ance 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 THE INITIATIVE, REFERENDUM AND RECALL expiration of the period for which he was elected. However opinions may differ concerning the inherent merits and defects of these agencies of popular gov- ernment, 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 by- product 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 legisla- tive degeneracy have grown too plain to be disre- garded. 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 unsatis- factory 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 2 INTRODUCTORY 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 seri- ous 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 power- ful 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 3 THE INITIATIVE, REFERENDUM AND RECALL and more readily turned over to the electorate for acceptance or rejection. At first an exceptional pro- cedure, this practice has shown a tendency to seek rec- ognition as a normal method of lawmaking; the legis- latures have taught the voters to expect that they shall be freely called upon, not only to select representa- tives, but to give a direct decision upon issues of policy. Hence appear the two outstanding reasons for the recent development of direct legislation in Ameri- can state and municipal government. A declining public confidence in the efficiency and integrity of legis- lators, and a readiness on the part of representatives to place upon the shoulders of the voters a responsi- bility 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 con- trary, 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 legis- lation. 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 tribes- men, 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 INTRODUCTORY 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 any- where 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. Mas- sachusetts submitted her first constitution to a popular referendum in 1778, and again, this time with a favor- able 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 gen- eral. 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 eight- eenth-century constitutions, notably those of Massa- chusetts, 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 approv- al namely, those of South Carolina (1895), Delaware (1897), Louisiana (1898) and Virginia (1902). 5 THE INITIATIVE, REFERENDUM AND RECALL right " to give instructions to their representatives " in the legislature. The use of the referendum in the process of ordi- nary, 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 munici- palities 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 taxa- tion. 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, 6 INTRODUCTORY 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 regu- lation 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 municipali- ties 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 sub- mission by the legislature of a measure to the voters 7 THE INITIATIVE, REFERENDUM AND RECALL of the entire state for final adoption or rejection by them, meets the objection that such reference consti- tutes a delegation of legislative power. And in the absence of specific constitutional permission, such dele- gation 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 refer- endum 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 8 INTRODUCTORY provide the only way. When, for example, a state con- stitution 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 particu- lar municipality set forth their own demands by a peti- tion, 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 num- ber 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 con- trol the making of all ordinary laws, for an amend- ment to the South Dakota constitution, made in 1898, permitted the initiative to be exercised and the referen- dum 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 THE INITIATIVE, REFERENDUM AND RECALL 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 pro- posing. 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, Mis- souri, Montana and South Dakota contain this restric- tion. 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 pre- caution against the abuse of this right of the legisla- ture to act freely and finally in emergencies, it is usually provided that measures passed under this pro- viso 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 10 INTRODUCTORY deemed emergency laws. Among measures so enumer- ated, 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 speak- ing, the same quota of voters may demand a referen- dum upon any measure passed by the legislature. Like- wise 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 peti- tions, 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 ex- pense, 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 limi- tations, 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. 11 THE INITIATIVE, REFERENDUM AND RECALL 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 prac- tical 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 refer- endum as agencies for framing party policy. A speci- fied 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 instruc- tion to all party conventions, cdmmittees and officials. But, as has been already stated, the greatest develop- ment of direct legislation has taken place in the field of municipal government. Here it has gone hand in 12 INTRODUCTORY 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 initia- tive 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 popular- ity 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 pro- visions for direct legislation and non-partisan nomina- tions, 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 13 THE INITIATIVE, REFERENDUM AND RECALL new commission charters some sort of provision for the initiative or referendum. As in the state constitutions, the city charter pro- visions relating to direct legislation are alike in prin- ciple and varying as to details. Speaking broadly, the voters of the city have the right, by presenting peti- tions bearing a prescribed number of signatures, to propose any municipal ordinance or other local meas- ure. 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 peti- tions 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-gov- erned cities may be found in E. S. Bradford's "Commission Govern- ment in American Cities" (New York, 1911), 223-233. 14 INTRODUCTORY 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 sub- mitted to the voters of the state, 1 and there are indi- cations 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 legisla- tion 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, dif- ferences of opinion than the relative merits and de- fects of direct as contrasted with representative legislation. Men differ honestly, not only as to the soundness of the principles upon which the initia- tive 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 popu- lar conviction that they promise a wholly satisfactory 1 These are printed in C. A. Beard and B. E. Schultz's "Docu- ments on the Initiative, Referendum and Recall" (New York, 1912), 385-389. IS THE INITIATIVE, REFERENDUM AND RECALL method of lawmaking, but from a widespread impres- sion 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 in- formed, 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 feas- ible. 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 stu- dents of American political currents can express the conclusion that " public opinion was never more help- less to obtain its purposes by ordinary and stated means," * it can scarcely be urged that the old ma- chinery of democracy is fulfilling its professed ends to the satisfaction of all. Popular distrust of the present system of law- making is undeniably widespread and deep. But it is not based upon the idea that the representatives of i See below p. 74. 16 INTRODUCTORY 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 popu- lar 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 repre- sentative 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 representa- tives are nominated in party conventions dominated by political bosses and elected by a ballot which embodies every feature that ingenuity could devise for befog- ging the voter; when these representatives are set to 17 THE INITIATIVE, REFERENDUM AND RECALL perform their functions of legislation under a sys- tem which eliminates all possibility of firm leader- ship and presents every facility for shifting responsi- bilities, 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 im- pediments to its proper working by the introduction of such features as direct nominations, the short bal- lot, 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 prac- tice of curbing legislative freedom. Whenever state constitutions were revised, new limitations upon legis- lative discretion were inserted until one could almost say that in some states the constitutional convention (with its work subject to popular ratification) has be- come the medium of all fundamental legislation, while the state legislature is relegated to the function of pro- viding 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. 18 INTRODUCTORY the principles upon which the new conditions shall be met. Some state constitutions prescribe that the legis- lature 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 legisla- tures. 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 responsi- bility. The most effective way to degrade any official chamber and to make service in it unworthy of sub- stantial 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. Following abortive attempts to secure any marked improvement in the quality of legislation by reducing legislatures to the plane of ordinance-making bodies and by giving the real legislative power to periodic constitutional conventions, there have been efforts, rather half-hearted, however, to improve the methods under which representatives are selected. The direct 19 THE INITIATIVE, REFERENDUM AND RECALL primary laws adopted in a dozen or more of the states and applied to scores of cities during the last few years, the removal of party designations from the bal- lot, preferential voting, corrupt practices laws, the re- duction of the municipal council in size and the increase of its powers — all these are measures which aim directly at securing better representatives, and which, if given adequate opportunity, will almost cer- tainly accomplish much in that direction. The recent experience of states and municipalities seems to war- rant the hope that most of the existing political ail- ments can be eradicated by specific remedies directed straight against the local seat of trouble. But this process takes time and requires a patience which public opinion does not seem ready to exercise. The direct legislation propaganda is an evidence of popular impa- tience with the slow, but reasonably sure working of specific reforms. The first argument in favor of direct legislation rests, accordingly, upon the allegation that existing legislative methods and results are unsatisfactory to the majority of the electorate; that representatives do not properly represent; and that the reforms under- taken hitherto have not changed and are not likely to change that situation. But the sponsors of the initia- tive and referendum do not rest their whole case, or even a large part of it, upon this point. They claim for their proposals many positive merits which do not connect themselves directly with the faults of the exist- ing representative system. Emphasis is laid, for ex- 20 INTRODUCTORY ample, upon the educative value of direct legislation. By means of the initiative, a spirit of legislative enterprise is promoted among the voters; men are encouraged to formulate political ideas of their own and to press these upon public attention with the assur- ance that they shall have a fair hearing. If public welfare often suffers from public apathy; if the mass of the voters manifest little interest in the contents of the statute-book, this is due in large measure, it is claimed, to the feeling of electoral helplessness which in some states amounts to a popular conviction. In California, during the decade preceding the adoption of the direct legislation amendments to the constitu- tion, it would be a gross perversion of obvious facts to allege that the voters of the state got what they wanted in the way of legislation. They obtained, for the most part, what a great and influential railroad corporation was willing that they should have. In a state like Pennsylvania, or in a city like Chicago, at the present moment it would be idle to argue that the statute- book represents the embodiment of popular ideas in legislation. The voters of that state and that city have endeavored on many occasions to crystallize their wishes into legislative action; they have demonstrated that on many matters public sentiment is pronounced and readily ascertainable by legislators ; yet they have almost invariably found legislation unresponsive. To be really representative, a government must be re- sponsive to public opinion, and to be responsive, it must have the machinerv of close contact. Between THE INITIATIVE, REFERENDUM AND RECALL even a strong popular sentiment and the passage of a measure to enactment, there is, under what is termed representative government in many states and cities of the Union, a long and difficult route, well strewn with pitfalls. The growth in vigor of popular ideas upon matters of state or civic policy is stunted by the mere knowledge that this is so. Men develop ideas only when there is at least a fighting chance that these ideas may be borne to fruition, and the electorate is no more than the individual writ large. Political thought and discussion can be best stimulated, it is suggested, by popular knowledge that these lead straight to action. The way to get voters interested in measures is to ask for their opinion upon measures, not for their opinion upon men. INTRODUCTORY In keeping with this emphasis upon the educative value of the initiative and referendum is the provision made by most of the states and municipalities which have adopted these features, for distribution, either in whole or in part, at public expense, of printed informa- tion bearing- upon the different questions which go upon the ballot. These pamphlets, which are usually in the form of a symposium presenting the arguments advanced by the proponents and opposers of each proposition to be voted upon, are mailed to every citi- zen whose name is on the voters' list. He is expected to read his pamphlet before he goes to the polls and to form his own judgment as to the merits of each proposal. In addition to this, it has become customary for various organizations to show their interest in some of the items by holding discussions prior to an election, passing resolutions of advice to their own members, and even issuing literature telling the voters which questions upon the ballot ought, in the opinion of these organizations, to be answered in the affirma- tive and which in the negative. Through all these various channels information concerning mooted meas- ures is literally forced upon the attention of voters. It may be urged that, despite it all, a great many voters will remain uninformed and, through their lack of in- formation, will register unwise decisions at the polls. Yet it will scarcely be denied that the mass of the elec- torate is apt to be better informed upon public ques- tions when all this literature is cast amongst it than when it is confronted merely with candidates and given 23 THE INITIATIVE, REFERENDUM AND RECALL only such printed matter as bears on the qualifications of these men. There ought to be no doubt in the minds of those who have watched the workings of direct legislation during the past few years, that this sys- tem does promote popular discussions of public meas- ures. And all such discussions have their educative value. Whether they actually lodge sure information in the voter's mind, and whether he accordingly can hope to become as sane and judicious an agent in passing upon these measures as his elected representa- tive is likely to be — that is a matter upon which one cannot yet speak with any such decision. In the realm of local government the task of edu- cating the voter to a popular knowledge of the ques- tions laid before him can hardly be called insuperable The basis, indeed, of the New England town system of government is the principle that even matters of very minor importance shall be decided by referenda to the citizens, and taking the history of New England towns as a whole, it does not appear that the voters have shown themselves less capable in determining these things than a body of representatives would have been. Most of those towns are small, it is true, but others, like Brookline, Mass., are, in point of popula- tion, larger than half the so-termed " cities " of the United States, and it does not appear that town gov- ernment in any way loses its satisfactoriness as the towns grow in population. Among the objections urged against the system of direct legislation three or four stand out most promi- 24 INTRODUCTORY nently. One is the allegation that it runs contrary to the principle of representative government; that its adoption will deprive representatives of power and responsibility, and that the calibre of men in legislative office will deteriorate in consequence. This is an ob- jection which cannot be lightly brushed aside, for the institutional history of this country during the last fifty years is full of things which tend to afford it support. Indeed, if there be any principle which American political experience seems to establish, it is the one stated in a preceding paragraph, namely, that the surest way to impair the personnel of any representative body is to reduce its powers. The ex- pansion of constitutional limitations, with the conse- quent narrowing of legislative authority, has unques- tionably operated to reduce the dangers arising from the election of incapable legislators. When the choice of inferior representatives does not bring serious pen- alties upon the electorate, inferior representatives are apt to be chosen. Public vigilance is the price of effi- cient government only so long as the legislature holds broad and final powers. The decline in the calibre of American legislatures, both state and municipal, has gone hand in hand with the shearing of their legis- lative powers. And the process runs in a vicious circle. When a legislature or council shows itself not up to the mark in the integrity or efficiency of its work,, the usual remedy has been not to increase but to diminish its powers and responsibilities. With nar- rowed powers it attracts a less capable set of men 3 25 THE INITIATIVE, REFERENDUM AND RECALL and these exercise even their smaller responsibilities less satisfactory. So again the pruning knife comes forth, and with the same results. This, in a word, has been the history of city councils in most American cities, until in the end the municipal legislature in cities like New York has ceased to be a coordinate branch of municipal government, and has become little more than the arena for an ill-tempered and almost wholly uninfluential discussion of public affairs. In many cities it has been eliminated altogether by tele- scoping it with the executive. 