TESTIMONY OF PROF. HENRY J. ABRAHAM, DEPARTMENT OF GOVERNMENT AND FOREIGN AFFAIRS, UNIVERSITY OF VIRGINIA, CHARLOTTESVILLE, VA.

Mr. ABRAHAM. Thank you, Senator Abourezk. Thank you, Senator Hatch.

I might say that I would side with Senator Hatch's prognosis on his bet. I think the public would go along with his prediction.

I never thought that after 30 years of personal and professional friendship that on the question of the failure of democracy, Peter Bachrach and I would be on different sides, or at least not on the sides we seem, respectively, to be representing today.

Senator HATCH. But isn't it stimulating? [Laughter.]

Mr. ABRAHAM. I think it does come down to a belief in the public. That sounds corny, but I am convinced that to some degree it does come down to that.

Perhaps one measure in which one could parry some of the objections about sufficient public expertise might be to point to California's practice. I am stealing my colleague Berg's thunder. Here are packages of explanatory materials from California [indicating]. I think you gentlemen are all familiar with them. They pertain to various types of initiatives and referenda. In order to present the issue at hand to the voters, Calinfornia's legislative counsel offers what is presumably a neutral analysis. The "pros" issue one from their point of view, and the antis issue another from their perspective. Then, in a sense, it is up to the people to pass their judgment, either based on their prejudices or on their willingness to be informed. Approximately 20 years ago I wrote a chapter in a book, together with Professor J. A. Corry of Queen's University in Canada, called "Elements of Democratic Government," in which I opposed what I am supporting today. I opposed it then primarily on two grounds:

The first one was that the initiative emanating from the public on a national level ignores the complexities of lawmaking. The second one was that the initiative assumes a unified popular will on correct answers for the common good.

I have changed my mind on both, although I do think the objections are still valid and still viable on both counts; and I am ambivalent about their implications. Yet I have changed my mind because I do no longer regard them controlling. Why?

Perhaps one of the main reasons is that I have seen the initiative, the referendum, and even the recall work quite well in a large number of our 50 States. With the help of my research assistant, I think I am pretty much up to date on the statistics, although Professor Berg may well correct me. There are now 23 States, as the resolution points out, that have the initiative. There are now 42 States-and that is almost all of them-that use some kind of referendum.

Incidentally, although you have not posed the question to me, Senator Abourezk, I would support an extension to bring with it the adoption of a system of providing for a national referendum. I think that is a natural outgrowth. As to the mechanism for the effectuation of the initiative, I would permit an alternate pathway. I would allow

the initiative either to go to Congress for its approval within a limited timeframe, which would render it law automatically, or else send it directly to the people. That can be done in a number of States. Either way would be fine.

Senator ABOUREZK. Massachusetts has that particular system, does it not?

Mr. ABRAHAM. Yes, sir. Massachusetts has it, and I think California has a version of it. I am not entirely sure.

There are now 12 to 15 States that have the recall. I am a devotee of the recall. I usually get shot down with it. It is one of the suggestions I made as one of the group of 60 to 100 academicians who were asked by Senator Ervin to recommend legislation after the Watergate hearings. The response I got was that it was an interesting proposal, a devastating use of that intriguing adjective. [Laughter.] I think that the history of the local democracy we have seen at work is in a sense living proof that just because something is placed on a ballot, it does not necessarily receive affirmation. Professor Berg's statistics in his formal testimony indicate that very strongly; for only one-fourth to one-third have succeeded.

Admittedly, the Founding Fathers envisaged lawmaking to be the province of the people's representatives in Congress assembled-but, as our history has demonstrated, it would at best be a gross oversimplification to maintain that the Congress, and they alone, do in fact make our national laws. In effect, laws-or, if one prefers, policies cum laws are increasingly made and applied not only by Congress but by the Chief Executive; by the host of all-but-uncontrollable civil servants with whom so many of us have been hassling lately in the executive agencies and bureaus; and, if you please, by the judiciary, too-and very much so.

When I went to college we were told the judiciary does not make any law. That represents one of the more interesting bits of fiction that abound, and the judiciary's role happens to be my province.

What emerges from these noncongressional sources is, to be sure, rarely called laws, but it is assuredly law and is expected to be complied with as if it had traversed the classical legislative process. Why not, then, permit another element of our societal structure to enter the legislative or quasi-legislative realm, namely, the people in their sovereign capacity as the ultimate repositor of power under our system, as envisaged by the letter and the spirit of the Preamble to the Constitution?

Now, I readily confess that I have been around too long, and have been teaching American Government and politics and constitutional Law too long, to have many illusions about ready public comprehension of often highly complex public issues. This has been the theme that has been discussed all morning.

Yet I think direct democracy addresses, and potentially nurtures, the citizen's public education and revives his interest in public affairs. The ancient Greeks had a wonderful term, idiotēs, to connote those who take no interest in public affairs. We have far too many idiotés in this country who, by virtue of that status, surrender to a plethora of special interests with narrow concerns.

If it would accomplish nothing else, Senate Joint Resolution 67 would at least provide the public with the prerogative of initiating

legislation at the national level, whatever kind of legislation they might deserve, and it would stimulate debate and activity on a broad level on issues, issues that are presently voiced, to be sure, but must ultimately run the frustrating gauntlet of the all but predictable vagaries and gamesmanship of the congressional legislative process. Congressmen are marvelous as individuals, but when they have to go out and seek consensus, they run into great difficulties, so perhaps the public could try to lend a direct hand.

Senator HATCH. If I may interrupt you just for a second, we have some idiotes who seem to be no better informed than the average citizen who may vote one particular way for a variety of reasons, some of which may not relate to what the legislation really contains, anyway.

Mr. ABRAHAM. Yes, sir.

Senator HATCH. I think everyone has had the experience in Congress when there has been a piece of legislation you just wonder what in the world are we passing here today!

Mr. ABRAHAM. I think idiotes is a marvelous noun. When I present it in class, it always causes snickers because of what has happened to the term in modern parlance. Of course, basically it means ignoramus, "I know not."

As I view the proposal, it is not, of course, designed to supplant the tenets of representative democracy; I would certainly not be a party to such an aim. Rather, it is designed to augment it, and, at least to a degree, take Congress off the proverbial hook on delicate issues that it prefers to avoid or to scuttle.

Concededly, as the experience in the States indubitably demonstrates, there are very real risks and very real dangers in the exercise of direct democracy. Those who favor its adoption, I think, must realize, as I do, that it is definitely a two-edged sword. This has been pointed out repeatedly today. Those who now crave it because they feel frustrated on an issue may quickly find that the other side could well have its day in the public court and do the same thing.

For example, to allude to some issues that have been mentioned this morning, all-out advocates of cross-county busing to desegregate schools might conceivably initiate such a measure, yet then find themselves confronted with an initiated countermeasure proscribing school assignments by racial quotas. Advocates of termination of tobacco subsidies might carry the day in an initiated proposal-and so might those requiring the termination of all subsidies to all agricultural commodities, including tobacco.

The proffered examples point to one of the real problems I think, and these problems I need not reiterate. They are basically problems of information. They are problems of learning. They are problems of communication.

I think we can all learn from California's experience.

To conclude, it seems to me that while Senator Abourezk's and Senator Hatfield's proposal may not be perfect in all details, I applaud its general principle warmly and I support it fully.

Perhaps section 2 ought to be amended, as someone else has suggested this morning-and I think it was Congressman Fauntroy-to

raise the suggested qualifying percentage from 3 to 4 or even 5, and the number of required States from 10 to, say, 12. I think it was also his suggestion that it become a majority. I would not regard that to be necessary. On the other hand, somehow 12 is a little better than 10 and comes closer to a quarter of the plenum.

Perhaps the Congress might be given an opportunity, naturally carefully delimited in time, to adopt an initiated measure, rendering a nationwide referendum vote on it unnecessary and according it the representative lawmaking body's imprimatur.

Perhaps section 3 ought to be altered to require a percentage floor of the total registered electorate as a component of the majority of the people casting votes before the initiative becomes adoptive.

These are details subject to reflection and analysis. But, to repeat, the resolution's overarching principle appears to this long-time student of American Government and politics to be both welcome and sound in our endeavor to hear the voice of the people more clearly, although, to be sure, that voice needs to be informed. That is its own responsibility.

Thank you very much. I appreciate the opportunity of being here. Senator ABOUREZK. Thank you very much, Professor Abraham. I am going to ask Professor Berg a question. Do you think a referendum ought to be included in this?

Mr. BERG. Yes, very much so, and I have suggested that publicly in that same column to which I referred to previously. I feel the same way about the recall.

Senator ABOUREZK. I think you recognize the political limitations of asking Congressmen and Senators to pass a recall provision.

Mr. BERG. I recognize that but as one of the voters I still suggest it is a fine idea. I can think of several from my own State that I would perhaps like to recall.

Senator ABOUREZK. Do you wish to comment on that, Professor Bachrach? Since you are opposed to the whole concept, you probably don't. You are against the referendum as well?

Mr. BACHRACH. I am indifferent.

Senator ABOUREZK. You are indifferent on it?

I have to say that I am somewhat attracted to the idea, once petitions are signed, of forwarding the proposal to the Congress for a period of time, say, 30 legislative days. If they fail to act on it, then it goes on the ballot.

Senator HATCH. Wouldn't it be even better if you forwarded it with an absolute obligation to act one way or the other within 30 days? Then you at least have on record what the people in the Congress are going to do. Then if the people do not like it, they can go ahead.

Senator ABOUREZK. That is not a bad idea.

Mr. ABRAHAM. That could save money, too.

Senator HATCH. It would save money and would put a lot of pressure on the fellows here who very seldom feel pressured, as you know.

Senator ABOUREZK. In every case that I have seen in an initiative or referendum, once the petitions are signed and filed, the legislature

in the State always takes some sort of action. Not in all cases, but almost always they are able to see what the public is interested in.

For example, in South Dakota we got petitions up once to repeal a law that had been passed, pushed through by the Governor. Before it could go on the ballot after the petitions had been signed, the legislature repealed it on its own.

In California, even though the antinuclear initiative was defeated, the legislature got together and passed State nuclear safeguards somewhat similar to the initiative proposal, although not quite as strong as the initiative itself, prior to the time of the election. Those kinds of things happen.

Senator HATCH. We have not even gotten into this but you fellows may want to think about it. I am talking about the question of whether it is even constitutional to have this. Even if it is constitutional, say we passed the amendment, will these particular amendments be held constitutional after passage? That is a peculiar question because you could say if it passes it ought to be constitutional, but I can see some ways in which the courts might compound the problem by finding some unconstitutional aspects of the various provisions.

Senator ABOUREZK. How could it be?

Senator HATCH. Inconsistent constitutional mandate.

Senator ABOUREZK. Then the later one controls.

Senator HATCH. Well, I would think so, but it is a question that bothers me a little bit. It is an innovative, interesting question.

Senator ABOUREZK. I have no more questions. I want to express thanks of the subcommittee to all of you for appearing and testifying. We certainly appreciate it very much.

Senator HATCH. I would like to ask several more questions.

I am sorry, Mr. Berg, that I was called out during your testimony but I certainly enjoyed the testimony of Professor Bachrach and Professor Abraham. I recognize all three of you as authorities in the area.

I have to admit that I do not think it is a big loss to lose the radical liberal positions and I do not think it would be a big loss to lose the radical conservative positions either. I think both of them have little to commend them.

Although I cannot say that I am for this legislation right now, as two of the professors have said, I do tend to think that the public will do a lot better job than we believe right now.

What I am concerned about is this: Will this type of legislation create a furor for the rest of our lives that could easily have been remedied by a responsible Congress? After all, this is the way our Founding Fathers decided was appropriate after all kinds of debate and time together?

You have indicated, Professor Abraham, that it probably would cause in itself a radical furor from the middle. I would agree with Professor Abraham that the middle may be very uninformed.

On the other hand, it seems to me that you have a situation here where the people might really enjoy being able to overturn Congress and being able to get some action on things that never come up here because of special interest groups on all sides of the political spec