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Washington, D.C.

The subcommittee (composed of Senator Bayh, Metzenbaum, Abourezk, Allen, Scott and Hatch) met, pursuant to notice, at 10:10 a.m., in room 2228, Dirksen Senate Office Building, Senator Birch Bayh (chairman of the subcommittee) presiding.

Present: Senators Abourezk and Hatch.

Staff present: Nels Ackerson, chief counsel and executive director; Mary K. Jolly, staff director; Ken Foran, minority counsel; Linda Rogers-Kingsbury, chief clerk; Kevin Murray, counsel to Senator Abourezk; Stephan Carter, staff assistant to Senator Abourezk; and Kevin O'Donnel, counsel to Senator Metzenbaum.

Senator BAYH. The subcommittee will come to order please.


Today, the Subcommittee on the Constitution begins hearings on Senate Joint Resolution 67, a proposed constitutional amendment coauthored by my distinguished colleagues Senators Abourezk, Hatfield, and Gravel which would provide for the enactment of Federal laws by popular vote of the people of the United States. My distinguished colleague from South Dakota, and a member of this subcommittee, Senator Abourezk, has graciously agreed to chair part of these hearings because of his deep and long-time interest in this subject. I wish to thank him and to commend him and his staff for their cooperation and for the work they have done in conjunction with the preparation for these hearings.

The idea of the public proposing national laws and then voting on them is most controversial, as most of us realize in the Congress. At the outset, let me point out that these 2 days of hearings on Senate Judiciary Resolution 67 are only the beginning of what promises to be a lengthy and serious debate on the merits of this resolution. For the most part, the witnesses scheduled to testify during these 2 days of hearings are favorably disposed to the proposed resolution. However, their views in no way reflect an intent. upon the part of this subcommittee to narrow the range of interested witnesses. Certainly, on the contrary, before our hearings are com

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 3 percent of the voters in at least 10 States. The signatures must be gathered within 18 months and be validated by the U.S. Attomey 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 a’so it be used to amend the Constitution.

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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:]



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

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