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Lincoln-Douglas debates on a particular issue. You would enlighten the public as they have never before been enlightened.

Senator HATCH. I am not so sure you are wrong, as a matter of fact.

Senator ABOUREZK. I think it is right.

Senator HATCH. I think over time the public would become primarily concerned about political issues and ramifications which might be a very healthy thing for our country. Keep in mind that we are not doing away with the Congress. The Congress can do many, many things to work what it considers to be the will of the people.

Senator ABOUREZK. Orrin, in a sense you are kind of an absolutist, just like I am. I get a little bit frustrated around here. Any bill that is introduced by anybody never comes out in its original form. It is hacked away at by everybody in the committee and on the floor and so on. It never comes out in its original form. It would be a different matter on the referendum. Once you put it in, that is it; it is up or down.

Mr. JONES. Senator Hatch has expressed a concern that the news media will take one or another viewpoint and not fairly report the facts.

Senator HATCH. Some say that the conservative media is the bad media. In other words, it will go out and not tell the truth. Others say the liberal media is the bad media. You have that conflict. Senator ABOUREZK. It's all conservative.

Senator HATCH. That is your libertarian speaking again.

Mr. JONES. I think that this kind of process will also put pressure on the news media to be fair and accurate. I found this to be true in Oklahoma where proposals are put on the ballot and people know that they are going to have to directly vote on them. Therefore, they become more concerned with what is being reported and more questioning. In fact, I can recall a few years ago one issue that looked as though it was going to pass. It had a good bit of newspaper support for it, but it was defeated because it became clear in the course of the debate that one small segment of that industry would benefit to the exclusion of others. The question went down. I find that this will help the news media itself become as fair and accurate as possible.

Senator HATCH. I think you are absolutely right. You know, we don't seem to have that problem in Utah, in my opinion. I think we have pretty fair, unbiased media. I think most of the States west of the Mississippi have that. Naturally we westerners feel that way. I am not so sure it is so awfully bad east of the Mississippi.

However, the point is that I think it would become incumbentand this is one thing that is a persuasive thing to me-it would become incumbent upon the media to tell the truth. If they did not, their State is going to be at a disadvantage, or their particular viewpoint may be at a disadvantage. It may bring about even fairer media.

I brought up this question because it is one about which both of you as well as Senator Abourezk have some enlightening thoughts. There are a lot of other questions I have. I do not want to keep you two important Congressmen here.

I have appreciated your forthright explanation of this. As I say, I have sympathy for this type of approach. I am not sure that it is the right approach. I am sure that the percentages are right in these bills.

However, I do commend both of you for your sincerity and for your energetic testimony here.

I have not met you before, Mr. Jones, but I certainly have respect for Walter. I would like to thank you both for your testimony. Incidentally, I have a great deal of respect for you also, Mr. Jones. I want to clear that up right now. [Laughter.]

Mr. FAUNTROY. Thank you so very much.

I would just like to reemphasize that I think all the institutions, including the media, would be moved to be more responsive. Senator HATCH. There would be a lot of pressure on everyone. It has some real merit.

Thank you.

Mr. FAUNTROY. Thank you.

Senator HATCH [acting chairman]. Our next witnesses will be Prof. Larry Berg of the University of Southern California, Los Angeles, Calif.; Prof. Peter Bachrach, Temple University, Philadelphia, Pa.; and Prof. Henry Abraham of the University of Virginia, Charlottesville.

I would like to welcome all three of you to this committee. Please come forward.

I will turn the time back to Senator Abourezk now.
Senator ABOUREZK. Thank you.




Mr. BERG. I would like to take a moment to thank the distinguished Chair and Senator Hatch for inviting us to come out of the library to perhaps say something about a policy question that is of interest. I would also like to make a comment with regard to Senator Abourezk speaking about the reference to "kooky" in the column. of the distinguished journalist. He referred to me in the same way 5 years ago when I suggested that this process might not be a bad idea, so I feel I am in very distinguished company.

Senator HATCH. If I were you, I would be very careful aligning myself with Senator Abourezk at this point. [Laughter.]

Mr. BERG. Being a native Iowan, coming from next to South Dakota

Senator HATCH. You feel quite comfortable?

Mr. BERG. Yes, I think so. Maybe it is the weather there; I don't know. Laughter.]

Senator ABOUREZK. Go ahead.

Mr. BERG. What I would like to do is very briefly to address myself to a couple of the arguments which are frequently advanced in opposition to what I like to call direct democracy, in this case the initiative. I do not make these comments based upon an extensive

study, but on some systematic analysis of what has occurred in California.

We also hear the word "kooky" periodically in connection with California, so it keeps coming up here today in the context of these hearings.

Looking back since 1912 when we started the initiative process, the thing that struck me is that it really has not been used very frequently. We have had, for example, as I pointed out in my paper, 171 measures on the ballot during that period, but only 29.2 percent have been approved.

Some of my colleagues in the social sciences have expressed the fear that the people would go on a lawmaking binge. In looking around the country, I really do not find any evidence to suggest that that would occur.

Also, when the Members of Congress spoke here previously, the question came up with regard to special interests and money. Again, looking back through the 50-some-odd-year history of the initiative in the State of California, we found on occasion that special interests have been able to get measures on the ballot. There is no question about that. However, they must frequently fail.

We had an example in the past month when a drive led by a gubernatorial candidate was attempted to put an initiative on the ballot that would have prohibited strikes by public employees. It was a well-organized effort and well-financed, but it did not succeed. It will not be on the ballot. Again and again we run into this. I would suggest that

Senator ABOUREZK. You mean they did not get enough signatures to even qualify?

Mr. BERG. Yes, and we have a 5-percent signature requirement in the State of California.

Again, we need to deal with the evidence. I would suggest that there is no evidence to support the position of those who fear that special interests will be able to buy themselves special privileges through the initiative process. We have not had that experience in California and in most States, so I find it highly unlikely that we would have it in a national system where there would be even more attention on the part of the media to that kind of special power grab. Also, I think that campaigns that did succeed in getting what I would call a highly selective special law on the ballot, would be rather interesting to observe. In other words, how could one argue publicly to the people for a very narrow special favor? I think even the most well-heeled group would have a difficult time doing that on a nationwide basis. The amount of money that they would have to spend in even attempting to do it would be an effective campaign tool against them. So I do not see that problem coming with regard to special interests and money.

The problem of money is a problem of money in politics. It is not unique to the initiative process. It affects the other aspects of our society, I would argue, adversely. It probably will do that in terms of direct democracy also unless we take other actions, such as Senator Abourezk suggested previously.

I would also like to make a comment in response to a question raised by Senator Hatch. My distinguished colleague here. Henry Abraham, is more qualified to do that, but I would say I do not think Chief Justice Burger is going to have to worry too much about an inundation of the Federal court system because of the initiative process.

In the State of California there have been ballot measures that have gone before the legal system. Quite frankly, from my perspective, that is a very logical implementation of our system of checks and balances. In any event, in some cases decisions by the people, affirmative decisions, have been thrown out by the court. In other cases the courts have upheld the action of the people. It seems to me that this is well within our concept of what we refer to as checks and balances.

In terms of frivolous proposals, to make one last statement-and as a faculty person I have a hard time stopping in 5 minutes but I am going to try-in terms of frivolous proposals, I would make several observations.

Again, the people have no monopoly on passing frivolous legislative proposals. If I daresay so in this august body, periodically such a Bill does slip through, even in the U.S. Senate. In the California legislature that happens quite a bit more frequently.

On occasion we have had frivolous measures, according to some, on the ballot. I would only raise the point that what is frivolous to some people may not be frivolous to others. Some of the ideas that we hear in public debate today that sound that way may not sound the same in 10 years. If we look at it historically, what seemed to be a radical proposal in say 1955 may very well be, and probably in some cases is, enacted into law in 1977 or 1976.

Frankly, this is a fundamental strength of this process. You deal with issues. You debate issues. You debate them on their merits. You do not have to deal just with the question of image. You do not have to deal with the question of personality. People deal with these issues as they are.

As Senator Abourezk very appropriately said, they go up or down. You either like them or you don't. You support them or you don't support them.

It seems to me that out of the debate that will occur over these kinds of issues people are going to be more informed. I do not think there is any question about that. I suspect that my own faith is based upon looking at the experience in the State of California and elsewhere. I would like to believe that the people will in most cases make the right judgment.

Again, I want to thank the Senator for inviting me here.
Senator ABOUREZK. Thank you, Professor Berg.

Without objection, your prepared statement in its entirety will become a part of the record.

Whether or not the public makes the right judgment, until such time as we decide that we no longer want to live in a free society, we are entitled to make mistakes. It is ourselves who suffer. As it is right now, if Congress makes a mistake, they don't suffer; it is the public that suffers. Why shouldn't those who are either deprived of money or liberties make the decision on their own as to whether they want to deprive themselves of that? Why should the Congress? What gives these people here the great wisdom to decide solely and exclusively what is good for those out there?

I would have to say that it all goes back to the old elitist argument that too much democracy is not good for people. Unless we want to change to a dictatorship or rule by fiat, there is absolutely no other

way to do it than to allow the public to make whatever decisions they choose to make. I submit it would not be that many.

Mr. BERG. That is my feeling.

I did not get into this but I do touch on it in the written testimony. It will permit people to act rather than respond. It will permit people to do rather than react to something.

In the process, I would suggest that being unable to take such action is related to the continued drop in the percentage turnout in voting. The initiative will have a positive impact on that for a variety of reasons. One is the ability actually to act and have some of the control in their own hands and to take action themselves. I think it will help to restore some of the confidence in elections and government that obviously is very much lacking.

Senator ABOUREZK. Thank you very much.

[The prepared statement of Prof. Berg follows:]




I am pleased to have the opportunity to appear before the distinguished members of the United States Senate Committee on the Judiciary, Subcommittee on the Constitution to discuss Senate Joint Resolution 67 and the initiative process in general. My thoughts os the latter are based primarily on periodic efforts over the past five years to analyze systematically the initiative process in the state of California and to communicate with my social science colleagues on the subject. However, based upon the academic inquiry, I also have undertaken a more public discussion of the merits of the initiative process at all levels of government. As such, these comments will continue in this fashion because my own systematic analyses have convinced me of the need for enactment of a national initiative process such as that proposed in SJ Res.67. In short, my comments are not only those of a political scientist who has expended some effort attempting to learn about the theory and practice of the initiative, but they also represent the views of one voter who strongly supports the legislative proposal, SJ Res. 67, under consideration at these hearings.

The Initiative and Its Critics: Theory and Practice


Throughout much of the twentieth century voters in a number of states, primarily in the western and midwestern regions of the nation, have rather regularly approved or rejected ballot measures dealing with a wide variety of issues and public policy questions. Outside of these states and the District of Columbia, which presently have the initiative as an integral part of the legislative processes, there appears to be a general lack of familiarity with the process. This is not surprising in view of the fact that the attention of scholars and interested observers to the process has been slight, particularly in the last three decades. Furthermore, elementary and secondary students in many parts of the nation receive little or no information on the subject and, unfortunately, it is very likely that their studies in colleges and universities also will fail to enlighten them on this aspect of our democratic processes. As Professor Richard D. Hamilton observed recently: ". . . collegians may pass through the portals innocent of the existence of the institutions of direct government. Half of the American government texts never mention the subject, (while) the others allocate a paragraph or page for a casual mention or barebones explanation of the mechanics."

1 Nicholas von Hoffman, "Abourezk's Bill: A Chance to Exercise Voter Initiative," The Washington Post. July 26, 1977, and Laura Tallian, "Direct Democracy: An Historical Analysis of the Initiative Referendum and Recall Process" (Los Angeles: People's Lobby Press, 1977) p. 45.

2 Charles M. Price, "The Initiative: A Comparative State Analysis and Reassessment of a Western Phenomenon." The Western Political Quarterly, vol. XXVII, No. 2, June 1975, p. 244.

8 Richard D. Hamilton. "Direct Legislation: Some Implications of Open Housing Referenda," American Political Science Review, vol. LXIV, No. 1, March 1970, p. 124.

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