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minded that similar statutes have emanated from legislatures and even a cursory examination of the thousands of legislative proposals considered by state legislatures and the Congress, and on occasion enacted, reveals a performance record that is not without numerous examples of frivolous, unnecessary and wasteful proposals.
Such critics also should be reminded that "those who present frivolous legislation in the form of initiatives have a more difficult test even than members of the legislature: they must gather a numerous following, persuade great numbers to support them in a campaign, and win an election." 18 Rather than dwell on the relatively infrequent examples of "bad" legislation enacted via the initiative process, critics should be reminded of the more numerous examples of positive contributions to public policy-making in the United States. For example, in California major governmental reforms such as the executive budget, administrative organization, the civil service system, judicial selection, campaign reform, coast-line protection and others, to mention only a few, are products of the initiative process.10 Professor Hugh Bone has reported that in the case of Washington "the initiative has been used to liberalize liquor laws, adopt daylight savings time, expand welfare benefits, authorize joint tenancies in property, protect game, advance and protect recreational opportunities, bring about reapportionment, and to institute a number of governmental reforms including the state civil service, open meetings, and regulation of lobbying and campaign practices." " In a number of instances in California and Washington, these successful reform initiatives appeared on the ballot only after the legislature had failed to handle satisfactorily the particular problem." Professor Bone pointed out that in the case of Washington, sponsors of initiatives have been ahead of the legislature in dealing with a variety of important policy questions. An examination of ballot measures in other states over a period of years indicates a similar pattern. It is possible that one concern of the critics of the initiative process is related to the fact that the initiative, in contrast to the referendum, is outside the traditional system of countervailing powers of the separate branches of government, and goes directly to the people and policy alternatives come from the people rather than public officials. As such, the initiative is one of the most purely democratic processes in the United States, which causes some individuals to be uneasy. Another distinction between the initiative and the referendum that is relevant to the debate over direct democracy involves the question of jurisdiction. Whereas the initiative puts original jurisdiction in the hands of the voting population, the referendum provides voters powers similar to those of a court of appeal. This distinction is more than semantic. The referendum process simply refers legislation to the public for their approval or disapproval. As a result, such proposals are the product of the long process of compromise in the legislature involving special interest groups, committees of the legislature, the political parties and the self-interest of powerful legislators. Initiative and momentum, therefore, are in the hands of legislators at the most crucial points in the legislative process. As such, the resultant policy may have lost much of its original intent and scope in this process of accommodation. Speaking to this point, Winston W. Crouch noted: ".. one of the attractions that the initiative has had for many groups in California has been that it offers a procedure whereby a complete proposal may be put before the people for adoption or rejection without its having had to undergo crippling amendment and compromise that might have been its lot in the legislature. Admirable as the legislative process may be when it operates as it should, there are numerous occasions when a weary public must take an emasculated, compromised substitute measure produced by the legislature because it is the best that could be had at the time-the best that could survive the gauntlet of the lobbies." 28
The recent debates in Congress over the proposed energy and environmental legislation are indicative of the type of situation referred to by Professor
18 Tallian, op. cit., p. 81.
19 Larry L. Berg, "Public Policy, The Initiative Process and the Need for Systematic Analysis" Unpublished paper presented at the 1975 Annual Meeting of the Southern Political Science Association, Nashville, Tennessee, November 7, 1975, p. 2.
20 Bone and Benedict, op. cit., p. 347.
21 Winston W. Crouch, "The Initiative and Referendum in California" (Los Angeles: The Haynes Foundation, 1950), p. 19.
Bone, op. cit., p. 5.
23 Crouch, op. cit., p. 19.
Crouch. Similar observations could be made about other federal and state policy areas such as taxes, trade policy and others. There are those who suggest that reliance on the "best that lobbies will permit" simply is not adequate today or in the future." Even though the record speaks to the contrary, critics who continue to insist that the people are incapable of proposing and approving "good" legislation through the initiative process should be reminded that the people do not have a monopoly for enacting "bad" legislation. There also are critics who cite a somewhat lower voting rate on some initiative measures. They also frequently relate this pattern to their belief that ballot propositions make the ballot too long and complicated, cause voter fatigue and contribute to "blind" or random voting." The limited empirical studies that exist suggest that such critics may have misinterpreted the meaning of voting or non-voting. In fact, some observers have presented a contrary view by suggesting ". . . that the failure of some voters to cast ballots might actually be an indication of intelligence."" As Joseph La Palombara noted: "It is too simple to jump to the conclusion that the voter who fails to cast a ballot on particular proposals has no interest in them. What is too often overlooked is the fact that some of the voters who do not cast ballots are aware of the proposals but may not care whether they are accepted or rejected. This is not necessarily an indication of a sterile attitude. It may actually constitute a real opinion-for implicit in this silence may be the voter's willingness to acquiesce in whatever decision is reached. This attitude would explain the differences which exist at any election between the number of votes cast on various proposals." "
Perhaps a more common sense response to such critics would be to pose a rather straight forward question: Does anyone honestly believe the public doesn't have the capacity to deal with 2, 3 or 4 initiative proposals? The direct responsibility for a lengthy ballot must be placed on state legislatures which are responsible for most ballot propositions in form of constitutional amendments, bond issues, and other statutory proposals. In short, there may be lengthy ballots, but the actions of the legislature are the reasons many voters face a formidable task in some elections.
There are other points raised by critics that could be addressed in this paper. In fact, I believe most, if not all, of the specific objections to the initiative process can be countered with equally, if not more persuasive arguments. In fact, I don't believe most of the criticisms are at the heart of the opposition to the initiative. It is my view that the opposition is more likely to be based on other factors related to a conception of democracy. Some, such as columnist George F. Will are rather open to this point when they state as he recently did in regard to S.J. Res. 67:
"The people are not supposed to govern; they are not supposed to decide issues. They are supposed to decide who will decide." "
Stated somewhat differently, some critics seem to harbor a basic distrust of the ability of citizens to make enlightened public policy decisions. They seem to be stating a somewhat refined version of the position expressed in 1911 when the Los Angeles Times predicted that "ignorance and caprice and irresponsibility of the multitude" would be substituted for "the learning and judgment of the legislature."" In short, some opponents simply don't trust most of the voters in the United States. As such, the current and long-enduring debate over direct democracy and the initiative process is part of the persistent struggle throughout history to implement democracy in the United States and elsewhere. Many of those who do not trust the people also seem to have accepted the elitist notion that only they and/or their peers really know what is best for the country. They also seem to believe that it is ap
"Berg, et. al., op. cit., p. 195.
James K. Pollock, "The Initiative and Referendum in Michigan," (Ann Arbor : University of Michigan Press, 1940), pp. 50-51.
Joseph G. La Polombara. "The Initiative and Referendum in Oregon: 1938-1948" (Corvallis, Oregon : Oregon College Press, 1950) p. 114.
George F. Will, "Initiative, the Populists' Voguish Darling," The Washington Post, July 28, 1977, D. A23.
The People's Lobby, "National Initiative and Vote of Confidence (Recall)," (Los Angeles: The People's Lobby Press, 1974) p. 20.
propriate for the only source of power in a democratic society to rest with the people but, on the other hand, don't permit them to exercise directly that power. The initiative would permit them to exercise direct power rather than just to voice opinions to pollsters and to elect individuals presumably to act on their behalf. Furthermore, it would implement the belief that ultimate and final responsibility for the government rests with the people and not public officials.
Based upon state experience, the adoption of a national initiative process also will be a way of widening the scope of political discussion and participation. As Professor Winston Crouch observed with regard to California,
"Every type of group representing popular interests-commercial, industrial, financial, reform, religious, political-has made use of the initiative. In this respect the history of the initiative has been consistent with the hopes of Dr. John R. Haynes and other leading exponents of direct legislation before it was adopted. Dr. Haynes always contended that minority groups must be given the opportunity to present their case and that the people must be allowed to choose between contending claims for support in legislation.""
There is no question that the initiative process permits many groups to present their views in the market place of ideas. It permits discussion of issues rather than just personalities. Even though the views expressed may seem "strange" to some, who is to make such a determination? Those who reject out of hand the ideas of others are simply stating in an implicit way that only their own should be accepted. What may seem "strange" today, may be widely accepted tomorrow. In short, a national initiative would allow more people and more ideas to reach the political agenda. With the initiative, citizens vote directly on issues, and if democratic government is based on the consent of the governed, what simpler device than to have the people vote on the matter?
The education value and politicalization potential from a national initiative could be substantial. Thousands of people would be involved in any national initiative campaign on one side or the other. Furthermore, the public's attention would be focused on debate and discussion of the merits or demerits of public policy issues rather than just on style, looks, image, and other similar aspects of many modern campaigns. Furthermore, the debate would be in public and in the open. The use of power by the people to attempt to solve pressing problems also would help to foster the fundamental democratic notion that the resources to meet the nation's needs rest with the people themselves and not with the enlightenment of a few strong leaders. The initiative process will provide one more way for the vox populi to speak and, more importantly, it will permit them to act rather than simply react to actions taken by others. Perhaps part of the reason for opposition by some special interests is based upon a belief about what might occur. As Robert Sherrill observed, "One suspects . . . that the national electorate might make some rather sensible decisions on such questions as whether to subsidize corporations at the taxpayer's expense or whether to make wealthy agribusiness wealthier for doing nothing." "
Finally, as Governor Hiram Johnson stated in his first inaugural address in 1911:
"If we can give to the people the means by which they may accomplish such other reforms as they desire, the means as well by which they may prevent the misuse of power temporarily centralized in the legislature and an admonitory and precautionary measure which will ever be present before weak officials, and the existence of which will prevent the necessity of its use, then all that lies in our power will have been done in the direction of safeguarding the future and for the perpetuation of the theory upon which we ourselves shall conduct the government. . . . And while I do not by any means believe the initiative, referendum, and recall are all the panacea for all our political ills, yet they do give to the electorate the power of action when desired, and they do place in the hands of the people the means by which they may protect themselves."
30 Crouch, op. cit., p. 17.
31 Robert Sherrill. "Why They Call It Politics," 2d ed. (New York: Harcourt, Brace, Joanovich, 1974) p. 152.
33 Governor Hiram Johnson, "To Restore Power to People," The Sacramento Bee, January 4, 1911.
Senator ABOUREZK. The next witness is Prof. Peter Bachrach, professor of political science, Temple University, Philadelphia.
We would like to welcome you to the subcommittee hearings, Professor Bachrach.
TESTIMONY OF PROF. PETER BACHRACH, DEPARTMENT OF POLITICAL SCIENCE, TEMPLE UNIVERSITY, PHILADELPHIA, PA.
Mr. BACHRACH. I appreciate very much being invited by your subcommittee.
I have the uncomfortable position, apparently, of being the sole person here who is opposed to this resolution. I will be brief in indicating why I feel strongly that this resolution is ill-advised at
In my view, there are three major objections to the resolution. First, it is class-biased. The political arena which it creates will be preempted by the groups that have money, that have organization, that have political skill, and that have power.
I do not think we can make a correct analogy of what has happened in the States and what will happen under this resolution. For instance, in the last fight over the nuclear power plant issue in California, the antinuclear power people spent $1.5 million. The other side, the pronuclear power people spent $3.5 million. This is in one State over one issue. When you compound that by 10, you can imagine how much money an organization would need in order to mount a successful campaign nationwide.
I think what it will come to is a contest among power groups, monied power groups, over who is the most skilled in manipulating the minds of the people.
The basis of my concern about this measure, however, is elsewhere. I think the resolution mistakenly presupposes that the people are in a position to make good judgments. Senator Abourezk stated that a moment ago. I think the Senator is correct that that is the heart of the question. Are the people today, the American people, sufficiently capable to make rational judgments on complicated issues? Let me backtrack for a moment. I am a democrat and I have always been a democrat. My writing confirms this fact. I therefore believe, as does Senator Abourezk, in the inherent good judgment of the people. It is the elites, even the best and the brightest which seem to get us in the most trouble. Having said this, however, I do not trust the good judgment of the people will become manifest in politics when a significant number of them-coming primarily from lower income groups are apathetic, alienated, and cynical toward the political system. It is they who fill the growing ranks of the nonparticipant. The result is that they have not had the opportunity to be politically educated. They have not experienced political combat within the context of the American rules of the game. It is no wonder that we have found in countless of studies that the common man tends to be ignorant and irrational on the simplest kind of political issues. Deprived, in reality, of a political education, he lacks
the ability to relate his personal problems to political issues and to judge them within the context of his fundamental political values. The inference of this argument for some students of the system is, of course, that this is indicative that democracy will not work and that we must have elite rule. To me, what it says is that it is about time that we pay more attention toward trying to work out schemes and to create new participatory structures to afford the people political experience. Then when they do come to an issue of national importance, they will be able, like you and I and those who are politically educated, to make a sane judgment.
My basic point is that this resolution is misguided and misfocused. It should be focused on what Congress can do to bring the nonvoter, the alienated, into the political system in a sustained, educative and meaningful way.
My last point is that looking at America within the context of a mass society rather than a healthy, vital, democratic society in which the people have had an opportunity to achieve political education, it seems to me that the kind of issues which the elites will present to the masses will be more or less hate issues. They will be issues in which there is a strong feeling among the people, such as busing, pornography, Government supported abortion and the like. These are the kinds of issues where there is a likelihood that the emotions of the politically uneducated and nonparticipant could be triggered sufficiently to bring them into politics.
My last point is this: I think that this kind of initiative will create a continuing cynicism among a significant group of educated voters. I say this because issues which are raised by the liberal, radical side of the polity will be overwhelmingly defeated. They will be overwhelmingly defeated because they will be opposed by groups that have more money and more training in the subtleties of manipulation of the people.
In sum, the resolution consists of a combination of evils. First, it will take our minds off the real issue, namely: How can we bring the richness of American democracy to those who presently do not experience it?
Second, it will encourage the exploitation of the mass society, which is firmly in place in America today, by raising hate issues. Third, it will discourage the raising of important liberal issues such as unemployment and city decay since they would not likely be voted in by the majority. Thus the resolution would create more rather than less cynicism.
Senator ABOUREZK. That is an interesting point of view, Professor Bachrach.
Let me ask you this: Do you think that the experience on the national level would be very much different from the experiences that have been had on the State level with regard to initiative and referendum?
Mr. BACHRACH. I am not qualified to answer that. I think my friends here would be.
My only hunch would be that because it would take so much money to get something on a national initiative, it would have to be some kind of legislation that would have an emotional base within the