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Without objection, I will now turn the Chair over to our distinguished colleague from South Dakota.

[The following letter from the Department of Justice was marked "Exhibit No. 1" and is as follows:]

Hon. JAMES O. EASTLAND,

[EXHIBIT No. 1]

DEPARTMENT OF JUSTICE, Washington, D.C., December 9, 1977.

Chairman, Committee on the Judiciary, U.S. Senate, Washington, D.C.

DEAR MR. CHAIRMAN: This is in response to your request for the views of the Department of Justice on S.J. Res. 67, a constitutional amendment to provide for a national initiative.

While the proposed amendment certainly reflects the theory of democratic government, it is the considered judgment of the Department of Justice that it cannot be effectively implemented in the United States, at the federal level, in the Twentieth Century.

At the time of the drafting and adoption of the Constitution, the Founding Fathers elected to establish a representative or republican form of government rather than a pure democracy. Their basis for doing so was philosophic, historic and practical and reflected their awareness of the theories of Montesquieu, the demise of the Greek city states, and the difficulties of communication in the Eighteenth Century. The philosophic and historic reasons for relying on elected representatives as the legislative body remain the same today. The practical reasons for doing so are quite different but perhaps even more compelling.

It is true that the use of the initiative as a method of legislating is not inherently inconsistent with a representative form of government, as witness the practice in a number of States. The practical problems, however, are magnified substantially at the federal level. First and foremost there is the complexity posed by the very fact that we have a federal system in which the powers of national legislation are circumscribed by constitutional constraints which can be extremely complex in their application to particular pieces of legislation. A perceived need can be met legislatively at the State level by appropriate legislation enacted under the State's general police powers. At the federal level, there is no general police power and legislation must be premised on the enumerated powers in Article I, section 8. If the federal legislature should exceed its powers in this regard, there is both an Executive and a Judicial check on this excess the veto power and the power of judicial review. If an initiative were adopted, one of these checks would be lost.

The complexity of modern law, particularly at the federal level, makes it extremely difficult for even a limited number of representatives, using their own staff, the available technology, and the resources of the Executive Branch to avoid the adoption of inconsistent, contradictory or overlapping laws. This is true even though the present process refines a proposed piece of legislation through many stages-introduction, comment, subcommittee consideration, full committee consideration and floor debate in each of two houses. While not all errors are detected in this manner, more can be detected than would be the case if the total voting population of the United States were to be given a choice of voting yes or no on the text of a measure as complicated, for example, as the Social Security Act. As the Congress recognizes, adopting a policy statement phrased in general terms is far easier than fashioning a precise piece of legislation in the framework of a code of law containing fifty titles.

The provision in the proposed amendment restricting the power of Congress to amend or repeal legislation enacted by initiative further compounds the practical problems. Obvious errors in language could not be corrected promptly; unintended repeals of existing law could not be undone for two years. Initiatives fashioned to meet one set of circumstances could not be altered even if circumstances changed drastically. Provisions struck down by the courts could not be altered to meet the courts' objections rapidly, perhaps resulting in the total failure of an important program strongly desired by the people.

One technical problem of concern to this Department, since it would be charged with administrative responsibilities under the proposed amendment, is the requirement that the signature of registered voters be verified by the Chief

pleted the views of all organizations and individuals, both those for and those not so favorably disposed to this resolution, will have an opportunity to testify or provide statements for the record so that the broad spectrum of interest in this subject will be properly represented. So, as the subcommittee begins hearing testimony today, we do so determined to have a full and fair record on both the pros and cons of a national initiative process.

The initiative process, as proposed in the resolution before us, would give citizens the power to put a proposed Federal law on the ballot by gathering the signatures of 3 percent of those who voted in the previous Presidential election.

The resolution would further guard against the possibility of regional concentration of the signators, by providing that the required signatures must include a distribution of signatures from percent of the voters in at least 10 States. The signatures must be gathered within 18 months and be validated by the U.S. Attorney General. If sufficient signatures are obtained, the proposed law would be placed on the ballot in the next congressional election.

Under the initiative amendment, citizens would have the power to enact Federal laws with the exception of the authority to declare war or to call up the militia. The initiative also could not be used to amend the Constitution.

There are many significant reasons of citizens' access to Government processes why many citizens view the initiative process as a most desirable one. During these hearings, I am sure that they will be discussed, along with significant reasons as to why it may not be proper in our Federal Government to have such a change in the system. No change in the Constitution should be undertaken lightly. As one who has been involved in a number of constitutional revisions, some successful and some not so successful, I think all of us understand the magnitude of this particular type of legislative process.

As we begin these hearings, I must say that I have serious reservations about the initiative proposal on the Federal level.

It is with this in mind that the strong pluses and the strong minuses which come to mind upon reviewing this change will be made a matter of public record, debate, and discussion. I am anxious to see just where this leads us.

Again, I salute my distinguished colleague from South Dakota for his initiative in this. I believe these hearings will provide one, as well as the public, with a greater understanding of the initiative. process.

I recognize two distinguished Members of the other body present this morning. They have not been strangers to this committee and have a deep interest in other matters that are before the Senate and before this committee in the constitutional area.

With the deference of my distinguished colleague from South Dakota, before turning over the Chair, I might point out that a statement from Dixon Arnett, who is an assemblyman from the 20th District of California, sheds some light on this topic. I would ask that it be placed at an appropriate place in the hearing record.

Without objection, I will now turn the Chair over to our distinguished colleague from South Dakota.

[The following letter from the Department of Justice was marked "Exhibit No. 1" and is as follows:]

Hon. JAMES O. EASTLAND,

[EXHIBIT No. 1]

DEPARTMENT OF JUSTICE, Washington, D.C., December 9, 1977.

Chairman, Committee on the Judiciary, U.S. Senate, Washington, D.C.

DEAR MR. CHAIRMAN: This is in response to your request for the views of the Department of Justice on S.J. Res. 67, a constitutional amendment to provide for a national initiative.

While the proposed amendment certainly reflects the theory of democratic government, it is the considered judgment of the Department of Justice that it cannot be effectively implemented in the United States, at the federal level, in the Twentieth Century.

At the time of the drafting and adoption of the Constitution, the Founding Fathers elected to establish a representative or republican form of government rather than a pure democracy. Their basis for doing so was philosophic, historic and practical and reflected their awareness of the theories of Montesquieu, the demise of the Greek city states, and the difficulties of communication in the Eighteenth Century. The philosophic and historic reasons for relying on elected representatives as the legislative body remain the same today. The practical reasons for doing so are quite different but perhaps even more compelling.

It is true that the use of the initiative as a method of legislating is not inherently inconsistent with a representative form of government, as witness the practice in a number of States. The practical problems, however, are magnified substantially at the federal level. First and foremost there is the complexity posed by the very fact that we have a federal system in which the powers of national legislation are circumscribed by constitutional constraints which can be extremely complex in their application to particular pieces of legislation. A perceived need can be met legislatively at the State level by appropriate legislation enacted under the State's general police powers. At the federal level, there is no general police power and legislation must be premised on the enumerated powers in Article I, section 8. If the federal legislature should exceed its powers in this regard, there is both an Executive and a Judicial check on this excess-the veto power and the power of judicial review. If an initiative were adopted, one of these checks would be lost.

The complexity of modern law, particularly at the federal level, makes it extremely difficult for even a limited number of representatives, using their own staff, the available technology, and the resources of the Executive Branch to avoid the adoption of inconsistent, contradictory or overlapping laws. This is true even though the present process refines a proposed piece of legislation through many stages-introduction, comment, subcommittee consideration, full committee consideration and floor debate in each of two houses. While not all errors are detected in this manner, more can be detected than would be the case if the total voting population of the United States were to be given a choice of voting yes or no on the text of a measure as complicated, for example, as the Social Security Act. As the Congress recognizes, adopting a policy statement phrased in general terms is far easier than fashioning a precise piece of legislation in the framework of a code of law containing fifty titles.

The provision in the proposed amendment restricting the power of Congress to amend or repeal legislation enacted by initiative further compounds the practical problems. Obvious errors in language could not be corrected promptly; unintended repeals of existing law could not be undone for two years. Initiatives fashioned to meet one set of circumstances could not be altered even if circumstances changed drastically. Provisions struck down by the courts could not be altered to meet the courts' objections rapidly, perhaps resulting in the total failure of an important program strongly desired by the people.

One technical problem of concern to this Department, since it would be charged with administrative responsibilities under the proposed amendment, is the requirement that the signature of registered voters be verified by the Chief

Law Enforcement Officer. It must be recognized that some States, or counties within the States, do not register voters. This would place the Department in a position of attempting to verify voting qualifications under State law for each signatory in such States or automatically disqualifying all signatories in those States lacking a registration procedure. The Department is not equipped to perform this function on a national level.

While the Department recognizes the concern for citizen participation which prompts this proposal, it must oppose S.J. Res. 67 for the foregoing reasons. The Office of Management and Budget has advised that it has no objection to the submission of this report from the standpoint of the Administration's program.

Sincerely,

PATRICIA M. WALD, Assistant Attorney General.

[The following correspondence was subsequently submitted for the record and marked "Exhibit No. 2" and "Exhibit No. 3," and follows:]

[EXHIBIT NO. 2]

MS. ALICE RIVLIN,

U.S. SENATE,

COMMITTEE ON THE JUDICIARY, SUBCOMMITTEE ON THE CONSTITUTION, Washington, D.C., January 18, 1978.

'Congressional Budget Office, House Annex 2, Second and D Streets SW., Washington, D.C.

DEAR MS. RIVLIN: On December 13-14, 1977, the Senate Judiciary Constitution Subcommittee held hearings on the Voter Initiative Constitutional amendment introduced by Senators Abourezk and Hatfield, S. J. Res. 67.

One of the questions that was raised was the cost of administering this program. Testimony from state election officials has indicated that it costs approximately 21 cents to validate a signature at the state level.

I would greatly appreciate receiving a cost estimate from the CBO on this legislation.

Thanking you in advance for your cooperation.

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Chairman, Subcommittee on the Constitution, Committee on the Judiciary U.S. Senate, Washington, D.C.

DEAR MR. CHAIRMAN: Pursuant to Section 403 of the Congressional Budget Act of 1974, the Congressional Budget Office has prepared the attached cost estimate for S. J. Res. 67, a joint resolution proposing an amendment to the Constitution of the United States with respect to the proposal and the enactment of laws by popular vote of the people of the United States.

Should the Committee so desire, we would be pleased to provide further details on the attached cost estimate.

Sincerely,

ALICE M. RIVLIN, Director.

CONGRESSIONAL BUDGET OFFICE, COST ESTIMATE

1. Resolution Number: S.J. Res. 67.

February 27, 1978.

2. Resolution title: Joint resolution proposing an amendment to the Constitution of the United States with respect to the proposal and the enactment of laws by popular vote of the people of the United States.

3. Resolution status: As referred to the Senate Committee on the Judiciary, July 11, 1977.

4. Resolution purpose: S.J. Res. 67 would allow the use of the initiative process at the national level. The initiative process allows citizens to place a proposed law on the ballot by gathering signatures of registered voters, equal in number to 3 percent of the ballots cast for President in the last Presidential election, including signatures from 10 states equal in number to 3 percent of the ballots cast in the last Presidential election in each of the 10 states. The chief law enforcement officer of the United States must certify the validity of the signatures, in consultation with the states, within 90 days after the presentation of the proposed law.

5. Cost estimate: To become effective, this amendment must be ratified by threefourths of the states. Thus, by itself, passage of the resolution by Congress does not result in a cost to the government.

The following table summarizes the costs that would be incurred if this resolution is passed and the amendment ratified.

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For the purpose of presenting these costs, it is assumed that the resolution will be passed, the amendment ratified, and the first proposed law presented to the Attorney General in fiscal year 1980.

The costs of this amendment fall within budget function 750.

6. Basis of estimate: It was assumed that one petition containing the text of a proposed law and the required signatures would be presented to the Attorney General's office in fiscal year 1980, and one in each non-election year and two in each election year thereafter.

Signatures needed to place a proposed law on the ballot must be equal in number to 3 percent of the voters in the last Presidential election. In 1976 there were 81.5 million ballots cast for the President. This was a 5 percent increase from 1972. It was assumed that there will be a 5 percent increase in the number of voters by 1980, bringing the total number of voters to 85.6 million. With the 3 percent requirement, 2.6 million valid signatures would be needed.

Based on statistics compiled by various states which now authorize the initiative process, it was estimated that 20 percent of the signatures collected on the petition will be invalid. Therefore, in order to ensure that the required number of valid signatures are attained, it is likely that at least 3.8 million signatures will appear on any petition in 1980 and 4 million thereafter, until the next Presidential election.

It was assumed that the federal government will reimburse the states for any costs they incur in verifying signatures for this purpose. Based on data compiled from a number of states, it was estimated that this cost in fiscal year 1980 would be $0.21 per signature. The 1980 cost per signature was inflated by the CBO estimate of the CPI inflator to obtain costs in later years.

Additional costs to the federal government with the enactment of S.J. Res. 67 were projected to be incidental.

7. Estimate comparison: None.

8. Previous CBO estimate: None.

9. Estimate prepared by: Chris M. Blair and Kathy Weiss. 10. Estimate approved by:

C. G. NUCHOLS (For James L. Blum, Assistant Director for Budget Analysis.)

Senator ABOUREZK. First of all, I would like to express the deep thanks of myself and all of those citizens who are supporting the initiative constitutional amendment to Senator Birch Bayh, the chairman of the subcommittee, for holding quick hearings.

As James Kilpatrick pointed out in a column Saturday, that is not easy to do in Senator Bayh's committees to get hearings on any, as he calls it, "kooky" idea.

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