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Senator HATCH. I have one more question.
Senator ABOUREZK. Go right ahead. I have a natural gas conference and this is a crisis day over there so I have to go over. We're on the verge of being sold out. [Laughter.]
Senator HATCH. I think that's true.
Senator ABOUREZK. So go right ahead.
Mr. NADER. Think of what it would be if we had a national initiative on natural gas regulation.
Senator HATCH. I'm worried about that. [Laughter.]
I can offer some other initiatives on the other side.
Senator ABOUREZK. I will excuse myself and turn this over to Senator Hatch to continue the hearings. I want to thank Mr. Nader and the other witnesses very much. I apologize for having to leave but this is happening right away and the initiative will be a longer process.
Let me ask one question before I go.
What do you think of the 3 percent, 10 State requirement? Have you given any thought to where it should be more or less?
Mr. NADER. I would probably recommend a little more in terms of States so that we do not get excessive regional concentration.
Senator ABOUREZK. If you send in a letter on the other point that Senator Hatch mentioned, would you give some thought to how much more and the basis you might have for it?
Senator HATCH [acting chairman]. I will ask unanimous consent that anything that you send us be incorporated in the record.
Mr. NADER. This resolution is not without its dangers to corporate crime, dangers to bureaucratic waste, and dangers to the nullification of the people's rights by bureaucracies and other large economic institutions. I don't think that's the issue. The issue is how can we make it fair so that those who want to work the democratic process can have a fair opportunity to prevail.
Senator HATCH. I agree with you that if we're going to have it, it has to be made fair. I agree with you that it should be expanded to more than 10 States and possibly broadened from a percentage standpoint. Professor Abraham of Virginia testified yesterday and suggested up to 5 percent or something like that. There ought to be some reflective thought put into it.
I also submit, however, that there are many other things that I think the vast majority of Americans would vote on such as; balancing the budget, which could be very harmful if you do it by 1980. And also impossible, or lopping off aspects of the bureaucracy, which may not be good because of the lack of reflection.
There are many other things like the development over environment. There are many things that certain people think are just purely liberal issues that really need balance. I think, without total reflection, this could cause chaos in America.
I have great sympathy with this idea. I think that people across the country are going to be pretty reflective before they vote on any of these initiatives petitions and I think if we can get into this bill or into any implementing legislation the character of mass media access which you have suggested-and I think that's a good point-then I think maybe it has some possibilities.
Let me ask one more question. Is not the cure for remoteness less government regulation by unelected bureaucracies and unelected judges? These two branches are not even touched by this resolution and yet they are making many, if not almost all, of the decisions in society today. This is what is really frustrating to most citizens in our country.
Mr. NADER. First of all, appropo of your earlier point, recall the Reagan sponsored initiative in California on the budget in taxation. Senator HATCH. We had one in Utah.
Mr. NADER. It lost.
Senator HATCH. Yes, because of the way it was written.
Mr. NADER. People are often astonished at how sensible people can be.
Senator HATCH. That has won also in other areas and we lost one in Utah which is reputed to be a conservative constituency.
Not "we" but whoever submitted it lost it. But I am submitting that there can be a number of problems here. This sword cuts both
Mr. NADER. The process is also revocable. That is what's good about it. In a few years if the consequence of the first initiative is untoward it can be repealed. It's not like something cast in bronze.
What was your second point?
Senator HATCH. The basic question was this. Isn't the remoteness in government caused by the bureaucracy and the unelected bureaucracy and the unelected judiciary? I have respect for the Federal judiciary so don't infer from my comments that I want to bring special controls on the Federal judiciary that will bind it down and make it susceptible to politics. On the other hand we have to acknowledge the fact that there is an awful lot of legislation being created by judicial fiat today and certainly almost all, I think, is being created by the bureaucracy. So those are areas where remoteness is a reality.
Mr. NADER. The initiative process will affect those areas because it will affect the laws under which government agencies operate and the laws that are used to interpret conflicts before the judiciary.
Second, I think one of the consequences would be considerable reduction in certain kinds of government activity. For instance, a lot of what this town is all about is the dissemination of subsidies or indirect subsidies to commercial and industrial operations. So, that is a lot of activity.
Senator HATCH. I think it's creating retirement programs for lawyers. I think that we have made the legal profession the most important profession in the world in this country. It's a multibillion dollar profession and we've done it unnecessarily.
Mr. NADER. That is what might be expected of a Congress that is 50 percent lawyers.
Senator HATCH. That may be. I think it has resulted from advocates like yourself who are pushing programs that make everything litigious.
Mr. NADER. No. I think it largely comes from the impact of complexity arising out of special interest group pleading like the tax code.
We are trying to simplify the tax code and in fact we could reduce the tax code to one-tenth of the bulk that it is now and who would be the main opponents of that?
Senator HATCH. I would suggest to the contrary. The people responsible are those who have been advocating widespread and wholesale class action usage and those who have been advocating many of the litigation-type approaches here in Washington which have resulted in billions of dollars of cost to consumers without a heck of a lot of benefit.
Mr. NADER. Of course, as you know I thoroughly disagree with you. Senator HATCH. I know that.
Mr. NADER. But I would like to point out that the class action is an efficiency instrument. It's a wholesale instrument.
Senator HATCH. Only if it's fair.
Mr. NADER. Certainly.
Senator HATCH. It's not fair.
Mr. NADER. But in terms of the burden on the judiciary it is an infinitesimal fraction compared to the commercial litigation between companies and
Senator HATCH. I'm not talking about a burden on the judiciary. It is truly that. There is no question about that. A lot of litigation created here in Washington is a burden on the judiciary.
But it is far more than that. It's a burden on the taxpayer and the consuming public and so forth.
Mr. NADER. I think the record will show that consumer legislation has saved the consumers enormous amounts of money not to mention the pain and anguish of human casualties.
Senator HATCH. I do not think it will show that. I think it will show billions of unnecessary dollars, even though there needs to be considerable legislation. I don't mean to say that I disagree totally with you but maybe that's a little off this subject.
Let me ask you this. I have enjoyed your testimony this morning. I think it has been articulate and I think it has been very fine testimony. I think it has been well-reasoned. I haven't made up my mind on this particular joint resolution because I see some awful problems both ways. I see some nice solutions both ways, but I have a tendency to want to go very slow in doing away with that which. our Founding Fathers set up even though I do not consider that sacrosanct. I still believe that we ought to be very slow in making these types of wholesale changes.
But I think your testimony has been excellent. As usual I have enjoyed it very much. I enjoy you very very much.
Do you have anything else to say?
Mr. NADER. One more point. I think we can learn from the experience at the State level as will be expressed by the People's Lobby in California who will be testifying today and the Initiative America People who have gone to many States and I think have the pulse of what many people in this country feel on this issue. So, it's not entirely speculative. We do have a good history of initiative and referendum.
Senator HATCH. I agree on the State level but I think it may be a far cry in application when it becomes federally applicable. That
may be where we run into difficulty because it's almost impossible to foresee what kind of ramifications it will have.
Mr. NADER. There are differences, of course, but it's important, when you deal with a State as large as California, to see what we can learn from that experience.
Senator HATCH. I certainly agree with you there.
We appreciate your testimony and the effort that you put forth to be with us today.
Mr. NADER. Thank you.
Senator HATCH. Our next witness is Mr. Don Whiting, the election supervisor of the State of Washington, Olympia, Wash. We're happy to welcome you to the subcommittee, Mr. Whiting. We are most interested in your testimony.
TESTIMONY OF DON WHITING, ELECTION SUPERVISOR, STATE OF WASHINGTON
Mr. WHITING. Thank you, Senator.
The State of Washington has had the power of popular initiative by virtue of a State constitutional amendment the language of which is very similar to Senate Joint Resolution 67 for over 60 years now. Primarily I want to relate some of the experience that the State has had with that proposal in the hopes that it will be meaningful to the committee and give the committee some basis for evaluating how a Federal proposal in the same area might function.
Briefly, over that 60-year period of time there have been about 407 initiative proposals which have been filed with the Secretary of State's office and only 84 of those have gathered sufficient signatures to either be placed on the ballot or referred to the legislature. Our State has both the direct and indirect forms of the initiative process.
Of that number almost an equal number have been approved and rejected. Forty-four have been approved either by the people or legislature and 40 have been rejected.
In general our experience with the process as it proceeds in Washington State at least is that it has been difficult enough to ensure the serious use of the initiative process without discouraging potential sponsors from proposing measures that might not have gained political currency at that time.
We took a serious look at the actual subject matters of the initiatives as well and two things are fairly clear from that. I have included in my written testimony a list of the topics for some recent initiatives and also a reference to an article produced by Professor Hugh Bone of the University of Washington which summarizes the entire 60-year process in Washington State. The same conclusion can be drawn from either of those analyses.
Senator HATCH. Those will be included in the record.
Mr. WHITING. First, the initiative in Washington has been used primarily for substantial public questions. It has very seldom been used for what either the public or the legislature would characterize as a frivolous action and equally important there is a great variety in the kinds of proposals that have come to the people by way of initiative and a strong indication that the process, in this State any
way, is equally available to a broad range of interest groups, both permanent and temporary, and to a broad range of philosophical interests.
The last thing that we can draw particularly from our own experience is the reaction of voters to initiatives as a legislative tool. There are two indications of that that I would like to refer to.
The first involves the fact that, because of the structure of the State election laws, prior to 1973 only municipal and special district elections were held in November of odd years. Starting in 1973 the legislature authorized State initiative measures and other State measures constitutional amendments, for instance-to be referred to the ballot in those years.
The effect of having the measures on the ballot in the odd years when there were no other statewide candidates was to increase the turnout in those kinds of elections from the range of 40 to 45 percent, which it had been prior to that, to 55 to 60 percent, indicating a significant interest in those measures apart from anything else that appeared on the ballot.
Looking at the years that those measures appeared on the ballot with other major offices, including the Presidential election which is the same election in which we elect our State officers, initiatives consistently rank right along with the major offices that people elect in terms of the total number of votes cast in the measures.
In 1968, for instance, of the six items on the ballot that received. the most votes two of them were initiatives, proposed by a process. similar to what you are looking at in Senate Joint Resolution 67.
The overall impression from the experience we have, both in terms of the votes cast and in terms of the kinds of campaigns that were conducted on these measures, is that the public sees them as a very important and effective way of dealing with the political process and with seeing their interests served by the process.
I have also included in the written testimony some background information which might help the committee evaluate some of the mechanical details of this kind of a process. In particular we looked at the question of costs of the verification of signatures on an initiative petition and from our own experience with it, where the signatures are verified at the state level although I don't think that is a significant distinction, it costs us about 212 cents a signature on the average to verify. Given the figures which Senator Abourezk, for instance, indicated as a typical initiative under this proposal of 32 million signatures, we would be talking about approximately $750,000.
Because of the kind of periodic character of this, I might suggest to the committee that it would improve the chances of the measure being approved by State legislatures if the Congress would also indicate some willingness to compensate state and local jurisdictions for the cost that they would incur in this process because they are unable to predict when the initiatives will occur. Very few would be able to anticipate those expenditures and would have difficulty having funds available for those purposes.
In general, Senate Joint Resolution 67 would appear to work as well and as effectively as the initiative process has worked in the