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Senator ABOUREZK. Thank you very much. That is an excellent discussion of the issue and its side effects.
We did not include a referendum procedure in this for various reasons. I'm curious to know what you think about the inclusion of such a process in this amendment.
Mr. ÑADER. I think they go hand-in-hand.
Senator ABOUREZK. It would be your position that we should properly include it?
Mr. NADER. Yes.
Given the safeguards that apply to each one, I do not see any reason why the referendum power should be deleted.
Senator ABOUREZK. Senator Hatch?
Senator HATCH. Mr. Nader, I too have enjoyed your discussion here today.
How would you suggest, for instance, that we bring about this access to major media communication? I assume that it is for the benefit of all citizens.
Mr. NADER. There are two ways to do it. One is to require a certain amount of time to be devoted the way they do in England for election campaigns with, of course, the campaign finance limitation developed in a way where the allocated amount of time on the mass media cannot be easily nullified by simply buying up enormous amounts of additional time. I think that is one proposal.
The second would be to develop a more consistent procedural access to the deliberations of the Federal Communications Commission. That would not just apply to initiative and referendum proposals but basically it would apply to the need for the viewers, the television viewers and the radio listeners to have a mechanism whereby they can participate and make a contribution to critical FCC policy whether it relates to access to new satellite technology or to the more routine issues that the FCC deals with in terms of access to the electronic media.
Senator HATCH. You have asserted in your testimony that the decisionmaking process is remote. I believe you have implied that this particular joint resolution would be a positive step in the direction of making that process less remote and more direct to the people.
I agree with you that there is a great deal of remoteness in the decisionmaking process of the Government and I cite the fourth branch of Government, the bureaucracy, as a perfect illustration with more than 60,000 or 70,000 pages this year in the Federal Register. This frustrates almost everybody in society.
I also can think of the countless remote decisions that are made behind closed doors by, let's say, the Federal judiciary.
My question is this. Should Senate Joint Resolution 67 be broadened to include the recall of Federal judges?
Mr. NADER. Not unless Federal judges are elected.
Senator HATCH. Would you prefer that they be elected?
Mr. NADER. No.
Senator HATCH. In other words, your answer to that would be no? Mr. NADER. Yes.
Senator HATCH. Why?
Mr. NADER. I think there needs to be a branch of government that is insulated from politics, even if it is at the price of insulating them
from popular politics. Until we see that there is a gross abuse of this insulaton, I think it is a good thing for society to have a branch of government that tries to make decisons on the basis of the merits and the law and the conscience of the judges.
Senator HATCH. Personally, I agree with you on that.
I do think that we may need some form of a recall approach with the Federal judiciary that resolves these problems of the tyrannical and overbearing and dishonest and unfair judge.
Senator ABOUREZK. We have an impeachment procedure.
Senator HATCH. We have that but it's almost an impossibility under our Federal judicial system to impeach anybody in any reasonable period of time.
Mr. NADER. Mind you, the benefits of this insulation are so great that I think the society can take several judges that a significant portion of the people may not like.
Senator HATCH. We've had to up to this point.
Mr. NADER. Also if you're going to have the ultimate constitutional safeguard for this initiative proposal be in the judiciary, then it seems to me you have to have a degree of insulation or otherwise the initiative process could upset the basic constitutional safeguard by simply recalling the judges.
Senator HATCH. Although I agree with you on your basic premise here I don't think you seriously believe that judges are insulated from politics, do you?
Mr. NADER. No, they're not wholly insulated from politics but they are more insulated from politics
Senator HATCH. After they are on the bench than they are before? Mr. NADER. Yes, and they are more insulated from politics than a legislator by definition.
Senator HATCH. No question about it.
Mr. NADER. So, we're not going to ever develop a system and nobody should be so naive as to expect the system that is that insulated. I think it is more insulated than other branches of government, however.
Second, the judiciary is not permitted to be overt about its connecton with politics.
Senator HATCH. One of the points that came up yesterday, which I thought was a rather interesting point was this. I would like to get your viewpoint on it. Should this amendment be passed and should we have the right to have an initiative and, let's say, that the rights of referenda are added to it, would you be in favor or would you not be in favor of requiring the Congress of the United States, once the percentage requisites are met, to have to consider this and vote up or down on whatever that initiative or referendum petition stood for within, let's say, a reasonable period of time after the requisite number of votes or signatures are obtained?
Mr. NADER. That is like the Massachusetts model I think.
Senator HATCH. Yes. This way it would force Congress to vote and it might save the taxpayers money. If it is passed it might solve the problem and it might not.
Mr. NADER. I would like to think about that more. It is a difficult call to make. But as long as Congress is permitted to do that anyway, then it's easier at first glance to say no to your question.
Senator HATCH. Until you think about it?
Mr. NADER. Yes. In other words, if Congress is still free to act because they see a referendum wave coming, then it's easier to say no to your question unless some experience is built up. This is what we do not have. We do not have national experience on this. Unless some experience is built up to warrant an affirmative response, then I don't think so.
Senator ABOUREZK. If the gentleman will yield, it seems to me that if you did forward the issue on to the Congress before it goes out on the ballot, then I think you would have to provide an up or down vote by Congress without amendment. If you provided it for amendment they could water it down enough so that people would say that it's not worth it and they wouldn't want an initiative.
Senator HATCH. That's one of the arguments. If you make it requisite that they vote on a particular initiative, then that is on that particular initiative on that particular basis with that amendment. That means that you will at least have the expression of Congress which can then be overruled by the people in the national initiative
But it may also resolve the difficulties right there on the spot if Congress votes for it.
Mr. NADER. On the other hand, you may have the California model where they may, for example, pass legislation that is 30 percent of the amount that is proposed by the initiative and take the steam out of the initiative movement. This was done to some degree during the nuclear initiative. There was a direct connection between the California legislature moving with its three bills and the pendency of the election day on the broader initiative on nuclear power plant safeguards.
There are some of us who think that those three bills, having been enacted, took some of the steam out of the vote a few days later.
Senator HATCH. It may be good or bad on a given occasion. All I'm saying is that I'd like you to think about it and submit what you. really feel, after reflective thought, would be the best approach here. That appeals to me.
Mr. NADER. Let me make one more comment. Your proposal then raises the question
Senator HATCH. It's not my proposal. I'm just throwing it up for discussion here today.
Mr. NADER. But the point you raise raises the question of two institutions on a parallel track with the initiative process and the ability of powerful interest groups undermining the initiative track by going to the Congress.
Congress is very susceptible to campaign finance and powerful politics. I find it a little bit worrisome that that alternative could be used to undermine the initiative track.
Senator HATCH. It might be used to bolster it. We might automatically pass it.
I submit to you that power politics and special interest groups will have just as much say, if not more, in public initiatives under this particular amendment.
Mr. NADER. They certainly will—————
Senator HATCH. It's a new way of doing things.
Mr. NADER. It certainly will if there are inadequate finance standards and access to the media.
Senator HATCH. You're saying campaign finance standards be applicable and be written right into this bill?
Mr. NADER. Or by supplementary statute or the implementing statute.
Senator HATCH. Would you prefer to have it written into the amendment?
Mr. NADER. No, because we'll end up with an Indian-type constitution of great detail. I think our Constitution's level of generalities has benefitted us.
Senator HATCH. Inasmuch as you are a strong advocate of greater popular control and more direct democracy, what would be your view with regard to having Supreme Court decisions, which hold that an act of Congress is unconstitutional, be submitted to the people in a popular referendum approach?
Mr. NADER. If the decision is made on the basis of a statute, that could be done. If it is made on the basis of the Constitution, I would oppose it.
Senator HATCH. What is your rationale for excluding the people from some decisionmaking and including them in other decisions? You seem to be in favor of some democracy but not a total and complete democracy.
Mr. NADER. I think this amendment to the Constitution envisages opening up the national initiative to reform at the statutory level. I do not think it envisages opening up the national initiative to amending the Constitution.
I think for the time being the existing way of amending the Constitution should be continued.
Senator HATCH. You seem to agree with me then that the reason the Constitution is such a viable document is that it is not a great detailed document and it is difficult to amend. Therefore, amendments have to have some validity and really great validity before they have much chance of success. That is probably a superior system to any others; is that right?
Mr. NADER. Also for another reason and that is that the Constitution stands as a safeguard of minorities. The Constitution stands for the proposition that even if there is a majority will expressed through the electorate, that it will have certain limits in its impact and it cannot alienate or violate the rights of minorities.
Consequently, I think there needs to be a reasonable shield between the constitutional amendment process and popular elections.
Senator HATCH. Do you see any dangers in the direct democracy approach? As you know the framers of the Constitution were concerned about that and they considered the merits of a direct democracy and rejected it in favor of a representative democracy as I think you've characterized it, or as a Federal republic.
One witness testified yesterday that the adoption of this amendment would open our system to radicalism and emotionalism.
That was Professor Bachrach. He said the adoption of this amendment would open our system to radicalism and emotionalism if I
remember his words correctly and it would be harmful to our established practice of a moderate form of government whereby conflicting interests are channeled through the deliberative process of a representative assembly. He felt if this resolution becomes law that it will really prevent radical liberal proposals from becoming reality, many of which we have seen become reality in the past. He cited with particularity the problems of urban decay, et cetera, and civil rights and so on.
His big concern was that this will really work to turn around a lot of the "gangs" that have been made through representative democracy rather than direct democracy.
Mr. NADER. One of the functions of the initiative is public education and public debate and the involvement of many people who don't aspire to be local or state or national leaders.
Senator HATCH. Keep in mind that his point was that the special interest groups will at that point take over and they will brainwash the people, or at least I felt that was his point. They would brainwash the people to the point where really several of the things that are most wrong with society, which might be resolved by what he termed as "radical liberalism" will not be able to be resolved.
Mr. NADER. I would say first of all that as far as the civil rights point is concerned, that is taken care of by the constitutional barriers to any such incursions on people's civil rights by the initiative.
Senator HATCH. But take one illustration. Pardon me if I interrupt you again.
Let's take busing. That is not taken care of and a lot of people feel that we should enforce busing to restore a balance or to create a balance. In certain areas of the country there is no question that probably it would be defeated.
Mr. NADER. First of all, that depends on how strong a stand the Supreme Court takes on the busing issue which could override an initiative.
Second, it might not be a bad thing if people concentrated on corporations and property taxes and housing policy instead of busing. They might get to the basic roots of the problem.
Senator HATCH. They might not do that. They might concentrate on balancing the budget and many of these other concepts that I think I characterized yesterday, that is not balancing the budget but some aspects that may be characterized as radical conservatism. Mr. NADER. That is a risk that you take in a democracy. These are the debates that have been considered for over 200 years.
Senator HATCH. You're willing to take those risks, and support this particular resolution; is that right?
Mr. NADER. Of course, but I recognize that information being the currency of democracy that there must be access to mass communications or otherwise you will basically have a manipulative process run amuck. If people are not able to communicate to one another through the mass media in the process of advancing an initiative and if other people, who are not a part of the initiative, cannot hear the arguments of those who propose the initiatives, then I think, without much speculation, we can anticipate abuse of this instrument of direct democracy.