TESTIMONY OF ROGER J. DIAMOND, SJR 67

Voter Initiative Constitutional Amendment

December 13 and 14, 1977

TESTIMONY OF ROGER J. DIAMOND, LEGAL COUNSEL, PEOPLE’S

LOBBY, LOS ANGELES, CALIF.

Mr. DIAMOND. Good morning, Senator. Before I present some of the formal remarks that People’s Lobby want to get on the record I would like to have the privilege of commenting a little bit on a personal matter—namely, the subject of lawyers. I know that came up during Ralph Nader’s discussion and there seems to be some feeling that lawyers are profiting by the system in general, and they are greedy people.

Senator HATCH. Not that they are greedy people but I have had the feeling all over America that people are pretty upset that almost everything that comes through Congress accentuates the position of lawyers and creates litigation and conflict in our courts and really has created this massive influx in law schools that we have today.

Mr. DIAMOND. I want to indicate that I have been a volunteer lawyer for the People’s Lobby for 8 years now, and I’ve never billed them a dime for my time.

Senator HATCH. I want to commend you because when I practiced law I was an “a v” attorney and I spent about 90 hours a week and at least 40 of them were given for free.

But I don’t think you find that too much today.

My contention, of course, is not directed against what I consider to be a noble profession. There are those who are not noble in the profession, as you know, and there are many who are very noble.

My contention is—and one of the points I raised—that so many of the consumer advocates are advocating so many consumer changes in our society that costs billions of dollars which really have not been proven to be that monetarily or otherwise beneficial to the people as a whole.

Sometimes they are. I think it is a blanket indictment that should not be made that no consumer legislation is bad. But at the same time when they talk about creating consumer legislation and creat­ing imbalances. Of course, Ralph Nader talks about the big cor­porate conglomerates that are running our society and I don’t hear anything from him about the big labor unions that dominate us and who are not subject to the antitrust laws. There are many other aspects of society that should be curtailed as well. We never hear the other side of the coin.

I agree that there are bad corporations. I agree that there are bad big labor unions or at least big labor aspects to the union movement which are bad. I am a former union man and I like the union but I don’t like some of the aspects. I agree there is some good consumer legislation. I certainly agree there is some pretty bad and repre­hensible consumer legislation and it’s not doing all the wonderful good that its supposed to.132

But we only hear one side from some of these advocates and that is one reason why that point came up.

I commend you for voluntarily giving your time to this service. Now it may be that you are able to do that a little bit better because you are teaching and teaching constitutional law and understand it.

Mr. DIAMOND. That is true but I primarily practice law. I teach constitutional law 1 night a week at a law school.

Senator HATCH. Lest I be misunderstood, in that little dialog that I just gave I have only covered a couple of problems. I think you have not only corporate abuse and big labor abuse, but also big educational abuse and big Government abuse. There are so many abuses that you can take any area and find them. What I resent are these people who come in as authorities and just talk about abuses in their own special areas and ignore the abuses in other areas that are just as costly to the American people and just as problematical. They oversimplify what is really wrong with our country without looking at it completely.

Most of these people have created this awful bureaucracy that we’re all living with today.

Mr. DIAMOND. I agree with you 100 percent. I wanted to point out that the proposed constitutional amendments to introduce the initiative process in our Federal Government would not create or lead to additional litigation.

Senator HATCH. I would be interested in that because I was talk­ing to Mr. Fish about that.

Mr. DIAMOND. As a matter of fact, I am sure, Senator, you are well aware of the fact that many statutes passed by Congress go to the courts and similarly, many statutes passed by State legislatures end up in the courts. So I do not think there is anything unique to the initiative system that would generate more litigation than has already been generated by statute. As a matter of fact, it might lead to a lessening of litigation to the extent that an initiative measure might take the place of a few statutes which might have otherwise been passed by the House and Senate.

Senator HATCH. Nor do I think that the fact that the initiative procedure may be subject to litigation is bad. I don’t think that is particularly bad.

Litigation has a very definite place in our society. It is the way we right wrongs and it’s the way by which we can have our own par­ticular viewpoint expressed. We can win or lose.

Mr. DIAMOND. As long as we’re on the subject of litigation, I did want to make one remark with respect to my formal presentation, and I will get to that now although it’s near the end of the remark. That relates to the People’s Lobby proposal.

What we have done here this morning and yesterday is submitted a counterproposal. We have looked at the resolution introduced, which is basically the subject of the hearing this morning and was the subject of the hearing yesterday. While the People’s Lobby fully supports the concept of the national initiative as a leader of the initiative process in California, we are concerned about the way in which this particular resolution was drafted. We want to make sure that if this gets off the ground—and we are confident that it will eventually, and hopefully very soon—the best foot is put forward. We are concerned about a number of things in the initiative as presently drafted. One of these relates to the authority of Congress to in effect veto any initiative measure passed by the people through this new initiative system.

We look to the California experience as a guide. In California the legislature cannot veto a measure adopted by the initiative process. There is a very good reason for that.

The whole idea behind an initiative and the whole reason for launching an initiative drive is that the elected representatives have been unresponsive to the request of the people for legislation. And as Joyce Koupal has already indicated, initiatives do not start the first time around. Usually there is pressure on elected representatives for some reform. That pressure is met with defeat. Then the citizens resort to the initiative process.

In other words, there has been an initial rejection by the legislative system or representative system, so you start the initiative process and get the signatures and go through that exhausting process of collecting the signatures. And I’ve gone out and gathered signatures, and I still do, and we all do. We in the People’s Lobby get the signa­tures as well as run the movement and we don’t believe in any sort of elitist system. But it’s an agonizing and difficult process, and the process will not lead to a lot of initiative petitions. Once citizens go through the agonizing process of gathering the necessary signa­tures and placing the measure on the ballot, they do not want to see their hard efforts go down the drain by a veto by the President, which we construe the current proposal to permit. That is subject to some debate of course, but we think it is at least sufficiently unclear to per­mit the Presidential veto.

We don’t want to see that happen, or do we want to see Congress come in and knock out the initiative that we have just adopted.

If that is permitted—and that is what the current drafted resolu­tion would permit—then it would first defeat and discourage a lot of people from even trying to start an initiative drive because they would know that as soon as they were successful, it could be taken away from them.

Senator HATCH. Let me interrupt you for 1 second. I used this yesterday as an illustration. A lot of people in our society would like to see a balanced budget. Assuming that an initiative petition could be put together that was a valid one and was well written and would really express the will of the majority of the people with regard to forcing the Federal Government to live within its means under cer­tain circumstances. Let’s say that that passed and it says that the budget has to be balanced by the year 1981 which in my opinion is impossible regardless of what our President has decided he wants to try and do.

Just under the present legislation that is on the books that would be the case.

And let’s push the hypothetical analogy further. Let’s say that if this isn’t overruled and it really is a tyranny of the majority in this case because the people don’t understand that the country cannot balance the budget by 1981. Would it not be a good safety valve to have Congress be able by two-thirds vote—which let me assure you is very difficult to get especially from both Houses—to overturn that, assuming that it’s blatantly clear that there is a mistake there?

Mr. DIAMOND. I do not believe that the citizens would ever adopt a measure that would result in the chaos which you predict would occur.

Senator HATCH. It could happen.

Mr. DIAMOND. By hypothetical reasoning or thinking you can postulate any ridiculous set of circumstances to defeat any proposal. No matter what proposal you would advocate, I could conceive of a hypothetical set of circumstances to justify an argument against your proposal.

While I agree that in theory what you say may have some validity, in practice that would never occur.

A good example is the California experience. As much as Cali­fornians have demanded property tax relief—and we desperately need it—there have been a number of property tax initiatives which have made it to the ballot but which were drafted in such a way as to have produced, had they been adopted by the electorate, chaos in terms of Government funding services, and they failed. Those have failed because the pro and con campaigns produced in the electorate the knowledge that the proposed initiative laws were not the right way to go a bout t ax reform even though everyone agreed that we needed some solution.

So from a practical point of view the measure was defeated. I do not think that that would ever occur here.

But in terms of the theory behind the initiative which is very important, it seem to the People’s Lobby that putting some sort of legislative veto into the initiative system negates the very idea for the system and in effect is worse than no initiative at all because it creates the illusion that something can be done.

We are very much aware of the argument that once in awhile an initiative measure, like any statute, might have some flaw in it, some defect that was not really recognized when the measure was put together. We know that Congress, from time to time, corrects de­ficiencies and makes technical adjustments in statutes. We recognize that, and we have included in our draft a proposal which we have submitted, and I hope that you have had a chance to look at or will have a chance to look at it.

Senator HATCH. It will be inserted in the record.

Mr. DIAMOND. We have submitted a mechanism for correcting those kinds of mistakes or technical errors that may crop up from time to time in an initiative, and we provide that Congress may amend those kinds of initiative statutes.

Senator HATCH. It still takes a two-thirds vote ~

Mr. DIAMOND. No, not even that. We would require simple ma­jority. However, the amendment would have to be consistent with the intent of the statute and consistent with the intent of the legislation.

If that were the case, then there would be no problem. So we are aware of the argument which I think was raised yesterday about initiative statutes being unique in the sense that they are beyond control and beyond being remedied. We have provided a flexible provision in our proposal for that particular purpose.

In addition, while I’m on the subject of flexibility, I wanted to point out that the People’s Lobby proposal has a number of other measures in it for flexibility that relate to the concept of the number of signatures.

Yesterday and again this morning Senator Abourezk expressed some concern about numbers and how many States should be re­quired and what the percentage of signatures should be and how much time should be allotted for the signature gathering process and so on.

In our proposal, to build in flexibility we advocate that Congress, by statute, can implement the initiative and set those figures. The reason for this is that nobody knows—and we can all come up here and predict and our predictions, but they are not based on too much experience other than at the state level, and we have no national level experience. We can predict how many signatures should be required, but nobody knows for certain.

What we suggest is that those mechanisms—the numbers—should be left to Congress. There is precedent for this. A number of other constitutional amendments do delegate to Congress the authority to implement the constitutional amendment by appropriate legislation. We advocate here, rather than freezing a specific percentage into the initiative, either 3 percent or 10 States or whatever, that Congress be permitted to do that at some later stage or in conjunction with the adoption of this constitutional amendment. That would permit flexibility.

Senator HATCH. Let me interrupt you. If you leave that with Congress isn’t that leaving it with the majority of Congress to say that you have to have 50 percent and all 50 States and you have to get this on legislation that they don’t want anyway; and where they want something that the majority says they can have, then you might have 2 percent. Isn’t that defective? It seems that way to me.

Mr. DIAMOND. We recognize that argument. Our answer is this. To get the initiative that ‘we proposed as a part of the Constitution in the amendment that we’re asking, we’re going to need Congress’ vote anyway. We’re going to need two-thirds of Congress to vote for this and three-fourths of the States. Now, of course, we’re dealing with procedure.

We do not believe that the same Congress which would vote to sub­mit this to the states for ratification by two-thirds vote in each House of the Congress, would turn around and undermine and sabotage the very initiative that it has voted to submit to the States for rati­fication by enacting an unwieldy or impossible burden in terms of numbers of signatures to be gathered.

In other words, we trust Congress to the extent of being fair with respect to the procedure. After all, we are asking Congress to vote for this in the first place.

Senator HATCH. You are saying that before the initiative petition can even be utilized Congress has to have a two-thirds vote.

Mr. DIAMOND. No, we are saying that we believe that Congress, by statute, should implement procedures under this proposed constitutional­ amendment to in effect create a code, an initiative code to detail the regulations. How are signatures to be gathered? What are the qualifications? How much time? In other words, it should be in the form of a code because I do not believe, as someone who has studied the Constitution for some time and is in agreement with Ralph Nader and others, that the Constitution should be the same as the Internal Revenue code, a detailed, complex statute containing all kinds of regulations. We believe it should come from Congress.

Senator HATCH. I agree with that.

Mr. DIAMOND. If it should turn out that it is unworkable and that the number of signatures required is too high, then Congress would presumably lower the number.

On the other hand, if it should turn out in the first year or two that Congress would set a particular number that was too low and too many petitions were qualified, then Congress could then adjust it upward to regulate it. In other words, it’s a fine tuning mechanism.

The reason numbers should not be in the Constitution is that they would be frozen into the Constitution. And we’re afraid, quite frankly, that if the number is too high there would be no way to really amend the Constitution again because it’s a very difficult process to amend the Constitution.

All we’re saying is that the nitty-gritty, the details, the numbers, the percentages ought to be left to Congress with appropriate im­plementing legislation which is a major proposal that we’re making here. It is different than the original proposal as drafted and as submitted to this subcommittee for its consideration.

In addition, Senator Abourezk continually asked a number of witnesses whether those witnesses advocated a referendum. The People’s Lobby strongly advocates the inclusion of a referendum in the initiative. This is, I think, one of the glaring defects of the present proposal before your committee—the exclusion of a refer­endum.

A referendum is important and indeed is not so radical as an initia­tive because all the referendum does is permit Congress from time to time to place measures on the ballot for voter consideration.

We are well aware of the fact that there are a lot of hot political issues that Congress’ may be afraid to vote on because no matter which way they vote they are going to be in trouble with a large seg­ment of the constituency. I’m sure that those kinds of issues could save the particular congressman or senator some anguish by merely saying, “I’m going to put this on the ballot and let my people vote.”

Senator HATCH. Like the Panama Canal for instance.

Mr. DIAMOND. Right. Just like that. In other words, you do not know. You’re not really sure which way to vote. That raises an issue which nobody has discussed and that is whether the initiative or referendum could be used to enact treaties. Nobody has discussed this and I think your comment raises that. I wasn’t really prepared to discuss it, but I will comment since you brought it up.

I believe that under the Constitution treaties are ratified only by the Senate, and not by the House of Representatives.

Senator HATCH. That is true about ratification. It’s not true with regard to the transfer of American property. Article IV, section 3, clause 2 says that it has to have the consent of both Houses of Congress.

Mr. DIAMOND. Right, for property.

Senator HATCH. Yes, for transferring property.

Mr. DIAMOND. When you mentioned that, I was aware of the fact that only the Senate could in effect ratify treaties. But of course whether or not an initiative has the force of a statute or a referendum has the force of a statute, you could certainly, under our system as we’re advocating here, place the question on the ballot in order to get the popular sense.

Senator HATCH. You would have the popular viewpoint in the sense that it would have pressure on it.

Mr. DIAMOND. Exactly.

So, we think that the proposal we’re making with respect to refer­enda would certainly permit a popular vote on that issue whether or not the popular vote could have the legal effect of ratifying a treaty. But we agree with you that insofar as property has to be transferred, that aspect of it could be placed on the ballot.

So, we agree with you, Senator, in terms of putting the popular issue on the ballot, such as the Panama Canal Treaty. What we advo­cate would be consistent with your comment.

Senator HATCH. What I’m saying is this. Where you have two types of treaties and one does not involve the transfer of property and the other which does. Under the first, the President can go and negotiate that treaty with the advice and consent of the Senate and bring it back for a Senate two-thirds ratification and it becomes the law of the land.

Under the second instance, the President has got to have either implementing legislation from the House of Representatives, from the whole Congress or he has to negotiate it with the advice and consent of the Senate and bring it back for two-thirds ratification of the Senate and an approval by the majority of the House of Repre­sentatives. That is one of the biggest issues in the Panama Canal controversy. We have raised that issue and Raoul Berger has agreed that we’re absolutely right on that. There is now litigation.

So what you seem to be saying and I think it’s an interesting and profound thought and that is that whether or not an initiative or referendum could result in constituting a treaty—and I submit to you that it could not—the value of its would be to at least allow the American people to express their will and then have the people’s representatives stand up for whatever they want to and face the wrath of the voters thereafter.

Even from that standpoint, the initiative would have great validity under your viewpoint and frankly under my viewpoint in that par­ticular instance.

Mr. DIAMOND. Right, or a referendum.

Senator HATCH. Yes.

Mr. DIAMOND. In other words, if the elected representatives wanted the issue on the ballot, under our proposal this could be done merely by the Senate and the House voting to place it on the ballot to get the electorate’s response.

Let me mention one other thing with respect to the difference between the People’s Lobby proposal and the proposal now before the committee. That relates to the subject matter of the initiative. This also is based on our California experience.

By virtue of the California constitution, both laws passed by the State assembly and State senate and signed by the Governor and laws passed by the initiative and referendum process, must deal only with one subject. This contrary to our Federal system under which, as you know, a bill can deal with a multiple subject, and riders are often attached permitting at least one vote on a number of unrelated issues if it’s tacked together.

In California this is not permitted by our California constitution, and so initiative statute can violate this. As a matter of fact—I won’t mention this case—but there is some question about whether a particular initiative now being circulated in California deals with more than one subject.

We’re suggesting in our proposal, which is not included in the proposal now before your committee, that Congress be permitted, b y statute, to limit the subject of any initiative or referendum to one subject because we do not believe that multiple subjects are really appropriate for the people to deal with. There could be some danger.

Congress may be able to deal with that because there is a lot of trading and bargaining and politicking going on. But we do not believe that a multiple subject initiative ought to be brought to the people because they may feel 80 percent strong about one measure and then 10 percent weak on another and adopt both even though one may not be so good for the people.

We think that there ought to be a system to limit the initiative subject to one matter.

Senator HATCH. Let me interrupt you. I understand your point. Let me ask you this. I raised this point yesterday. It is one that concerns me. Assuming this legislation passes and the joint resolu­tion is accepted, and lets assume that we limit it to one subject matter item which as you know is constitutionally difficult to define and it may be a difficult standard to meet because there basically are no subjects really if you start by examining them.

But nevertheless I agree with you on that point, at least cursorily I agree with you that there should not be a broad sweeping tax code reform, for example. You’re saying that you have to limit it to tax reform.

Mr. DIAMOND. That could be regulated by implementing many statutes. We don’t want to freeze the definition of subject in the initiative. We want to delegate that authority to Congress.

Senator HATCH. How do you solve this problem? Let’s say that you have done to all the bother of meeting the requisite percentages and numbers of States and so forth and its ready to be put on the ballot and there is some technical language provision in the initiative or referendum that really makes it invalid and it could just be solved technically so that the thing could go on the ballot and it wouldn’t be a wasted vote of the American people. Do you have any suggestions as to how you solve that problem? Does your particular proposal deal with that?

 

Mr. DIAMOND. We think it does to the extent that we authorize Congress to amend the initiative by a simple majority vote to correct any deficiencies or technical omissions.

So, we think that would solve the problem. We think that Congress by appropriate legislation—

Senator HATCH. If it doesn’t do it by a majority vote then the initiative would fail even though all that has been done –

Mr. DIAMOND. You’re saying that the correcting mechanism should be before the vote rather than after – We think that would be permis­sible. Let’s say there were a double negative written in where it was not intended.

Senator HATCH. That is what I’m talking about. It’s something that is clearly a procedural and technical defect that should not prevent the vote.

Mr. DIAMOND. We submit that, first of all, by the referendum process Congress could, in effect, put another measure on the ballot or a corrective measure, or by legislation could correct the defect. We would be all in favor of that so that the taxpayers’ money would not be wasted.

Of course, our experience has been that that really does not happen. As someone indicated yesterday these initiatives are not slapped together over coffee or over nonfat milk or orange juice or whatever. They are worked on for a long time, and in effect many hearings are and citizen groups are consulted.

The citizen groups who are going to put this thing together are going to spend a year of their life working on this and a lot of their money. They want to make sure their proposed law is drafted cor­rectly. So, as a practical matter, the initiative is usually corrected before it gets to the ballot.

But if something unforeseen should happen, then we agree with the implication of your comment—that there ought to be some way of dealing with that, and we think that our draft does permit that by permitting technical corrections.

But we do say that it has to be consistent with the intent of the stated legislation. We think that particular problem is solved by our particular proposal, which I do not think is contained in the pro­posal that is now before the committee.

Let me indicate quite strongly that we certainly agree with the theory of the initiative. We are not here to say that what is now before the committee should be totally disregarded. We think it is a good starting point for discussion. But before anything in final form is submitted to the full committee, ‘we certainly would hope that our views would be noted.

One final thing that I wanted to mention in terms of the remarks that we wanted to have noted for the record here. That relates to the limitation placed on legislation by the current proposal before the committee.

As you will note, the proposal now before this committee exempts certain kinds of authority from the initiative process—basically, those dealing with the warmaking power of Congress. We do not believe from a theoretical point of view that the right of the people to enact legislation by the initiative process should .be any less than that now possessed and owned by Congress. In other words, we do not believe that any exceptions should be carved. Right now there is an exception in that the current proposal of the initiative process prohibits its use to declare war.

We are not warmongers and we don’t want initiatives to be used to declare war. Really, our dispute has more of a theoretical basis. As a practical matter, nobody is ever going to use an initiative process to declare war. It would take 1½ or 2 years to do and it would never happen. But from a theoretical point of view, for the sake of sym­metry, we believe there should not be any exceptions carved into the initiative. We think the scope of legislation authority ought to be co-extensive with Congress’ authority right now. That is a theoretical point. As a practical matter, we can’t see how that would ever come to pass.

Senator HATCH. I appreciate your testimony.

Let me ask a couple of questions.

Ms. KOUPAL. The People’s Lobby, this is a nonprofit organization?

Ms. KOUPAL. Yes.

Senator HATCH. How many members do you have?

Ms. KOUPAL. We have been organized since 1968. We are primarily an organization that uses the initiative process to solve problems. We are not membership oriented in the sense you mean.

Senator HATCH. Do you take donations?

Ms. KOUPAL. Yes, we do and we also conduct a printing business.

Senator HATCH. Do you have a board of trustees?

Ms. KOUPAL. A board of directors.

Senator HATCH. How many members are on that?

Ms. KOUPAL. There are four right now.

Senator HATCH. Would you submit for the record the names of each of those members?

Ms. KOUPAL. Certainly. Martin Friedman, James Berg, Robert Hamcke, and Laura Tallian.

Senator HATCH. I take it that you are basically funded by private donations?

Ms. KOUPAL. Yes, and we have fundraisers. For instance, in one initiative drive we conducted a series of bicycle rides which provided us with about a quarter of a million dollars in funds, so our fund raisers are not insubstantial.

Senator HATCH. You don’t have an annual budget?

Ms. KOUPAL. Yes, we have an annual budget of about $100,000 a year.

Senator HATCH. $100,000 a year?

Ms. KOUPAL. Yes.

Senator HATCH. How many staff members, paid staff?

Ms. KOUPAL. It is flexible. Right now I think we have probably 25. But we are in an initiative drive right now. Ordinarily we have between two and five.

Ms. KOUPAL. Yes, we have an annual budget of about $100,000 but when you start your drives you go out and raise additional funds?

Ms. KOUPAL. Yes.

Senator HATCH. Like the bicycle rides where you raised a quarter of a million dollars?

Ms. KOUPAL. Yes.

Senator HATCH. Let me ask you a little bit about your organization and you can give us some background, Mr. Thomson.

Mr. THOMSON. Yes, Senator HATCH. It is helpful for the record.

Mr. THOMSON. We’re a statewide organization in Massachusetts. We’re membership based.

Senator HATCH. How many members?

Mr. THOMSON. 2,500 members across the State. We have been in existence as a merger of two groups that go back to 1962.

Basically we operate on the whole range of progressive issues as they come up as well as the election campaigns themselves, both in the Presidential primary and congressional races in our State where we probably have the most visibility, and on local legislative races and local town problems.

Senator HATCH. Do you have a budget, do you have an annual budget?

Mr. THOMSON. About $50,000.

Senator HATCH. Do you do the same as People’s Lobby! Do you go out and raise money when you need it for a particular thing?

Mr. THOMSON. Right. We have a series of if fundraising events and our basic set of funds comes by the membership itself with dues and additional donations over and above those dues.

Senator HATCH. Mr. Dent, you are an attorney; is that right?

Mr. DENT. No, I am not.

Senator HATCH. Do you represent any particular organization?

Mr. DENT. I am affiliated with Initiative America and I had written a paper 3 years ago on proposing a study be undertaken on a national initiative and submitted it around to various Members of Congress.

Senator HATCH. Mr. Fish, I know you are a professor. You may comment if you like.

Mr. FISH. I do not represent any group. I’m here on my own.

Let me make a few points.

There may be some impact on the volume of cases handled by the Federal judiciary if a national legislative initiative passes. For instance an injunction against an antipornography initiative or some­thing like that on first amendment grounds as well as challenges to signatures.

I should think you would want to seek out the views of the Judicial Conference of the United States as to what kind of impact on Federal case flow might arise from a national legislative initiative, should it become a reality.

Another point that did bother me is this. It explicitly states in S.J. Res. 67 that it does not provide for a constitutional initiative. But I wonder if a constitutional initiative could not emerge via the back door in that through a national legislative petition there could emerge a legislative proposal for an amendment to the Constitution of the United States providing for a constitutional initiative which would then go to the states for ratification by three-quarters of them.

If so, then we would have the constitutional initiative.

Senator HATCH. We already have that in the Constitution.

Mr. FISH. From the States. I’m talking about its arising from the people—the constitutional initiative based on petition such as Swit­zerland has.

There is a specific sentence in S.J. Res. 67 that says that this measure will not provide for a constitutional initiative.

Senator HATCH. I don’t want to keep you folks so long and I think your testimony has been very interesting and very appropriate and good for the record. I have enjoyed chatting with all of you.

Let me ask you this, Professor Fish. As you know the subcommittee recently considered a constitutional amendment to provide for the direct election of the President.

One of the major objections to that amendment, as you know, is that it overrides the principle of federalism that is embodied in the electoral college.

Are you suggesting that the proposed amendment for an initiative is also objectionable on the grounds that it also undermines the Federal principle embodied in the national Congress and in the Constitution itself?

Mr. FISH. I would say that if it were possible to have a national constitutional initiative, then a government of limited powers could be dissolved, it seems to me. It could put the first amendment up as an issue with the equal protection clause and vote whether or not to repeal the first amendment or repeal the equal protection clause, as the case might be.

If there was such a thing as a constitutional initiative, then that could happen.

Senator HATCH. Mr. Diamond, did you have a comment?

Mr. DIAMOND. I was going to say that right now, if the States or people wanted to repeal the first amendment they could do so by bypassing Congress and just have a State convention with alternative means of amending the Constitution—a method which has never been utilized.

I think that these kinds of expressions of fear are simply unwar­ranted. The assumption or the premise underlying that kind of a comment is that the people are totally irrational.

Senator HATCH. We had one of the most liberal Democratic polit­ical scientists here yesterday and according to his own characteriza­tion he was that way. I don’t think he called himself the most liberal but he sounded like one of the most liberal ones and he was very articulate in saying that he feels that the people would be very ignorant under the circumstances and that this is a very dangerous proposal.

Mr. DIAMOND. I do not believe that. But even if it were true, this does not in any way increase the chance of that happening because it could still happen by virtue of the alternative means of amending the Constitution.

Senator HATCH. Should not we stay with the Constitution since we have an alternative right now that the people can advocate if they like? For instance recently I advocated at an antiabortion meeting that maybe we ought to utilize the state convention approach to amending the Constitution with regard to indiscriminate abortion.

Mr. DIAMOND. You’re suggesting there is an alternative right now for popular initiative, namely the opportunity to amend the Con­stitution.

My answer to that would be that many of the kinds of proposals that you or others might make, if we had the popular initiative, I think are properly related to a statute rather than amending the Constitution.

Senator HATCH. That is a good point.

Mr. DIAMOND. So, if you were going to adopt the detailed abortion statute regulating when abortions could be offered or when they could not be or when the expectant mother could have it or when she could not, then I think that kind of a detailed proposal should be a statute.

Senator HATCH. If I offered it, it wouldn’t be detailed, it would be

simple.

Mr. DIAMOND. You say no abortions?

Senator HATCH. That’s right.

Mr. DIAMOND. But a lot of people might say—and I don’t want to get into debate—but they might say under some limited extreme circumstances abortion might be OK. –

Senator HATCH. I would say that too.

Mr. DIAMOND. But that would have to be a statute. It wouldn’t be properly a constitutional amendment.

Senator HATCH. I disagree with you on that. The Hyde amendment would be an appropriate amendment to the Constitution. Basically it says no abortions except to save the life of a mother.

But let me ask you this, Ms. Koupal. Do you receive any of your money from foundations or other organizations or is it mainly people funded?

Ms. KOUPAL. It is mainly people funded.

Senator HATCH. Mr. Thomson?

Mr. THOMSON. The funding is entirely by individual members and their donations.

Senator HATCH. So these are folks who really believe that some­times the Congress is unresponsive and they need some sort of a way of going around the Congress or any other entity in the Govern­ment to be able to let the people vote up or down; is that right?

Mr. THOMSON. That’s right.

I would like to make one point. We talked about the problem of technical corrections in the amendment. I believe the model in Massachusetts may be a workable solution to this. The text of the proposal, before any initiative petitions go out for collection of signatures, is submitted to the attorney general.

Senator HATCH. For approval?

Mr. THOMSON. Yes, before it goes on.

Senator HATCH. That’s a good suggestion.

Mr. THOMSON. Trying to do it in terms of having Congress look at the legislation after it has gone through the petition process is exceedingly dangerous because I don’t think any process has ever been devised to make the distinction between a nonsubstantive change and a substantive change when a not disinterested party is making the judgment.

Senator HATCH. That’s right. They certainly overlap. Mr. Dent?

Mr. DENT. Senator, to buttress the point you just made, I think an interesting example which just recently occurred in Ohio comes to mind. This was the situation where the legislature there passed the instant voter registration law which was subsequently vetoed by Governor Rhodes and the legislature then came back and overrode Governor Rhodes veto upon which the people went out and collected enough signatures to place the issue on the ballot and overrode the legislature by a fairly substantial margin.

Senator HATCH. And a very important vote in this country.

Mr. DENT. This says graphically one thing. The legislature was drastically out of tune with the people. The people in this case had a remedy to correct that situation.

Senator HATCH. Let me say this. As I’ve said I’m still a little up in the air on this matter. There are a lot of questions that I have about

it.

Mr. Fish has raised I think some very provocative questions about this. Mr. Diamond, you have raised some good questions. All of you have. Mr. Dent was just citing the Ohio situation.

I think you would all agree that this is a very important issue and that it is not easily solved by demagoguing and say, “Don’t you want the people to make the decision?” I particularly have appreciated

–    that none of you have done that. I think that it involves issues that were thoroughly discussed during the creation of the Constitution in the early days of this country.

But these aspects perhaps were not discussed in the detail that we’re getting into them here.

So, I personally want to thank all of you for coming. I think what you have given to us has been very good and I think this will give my colleagues an opportunity of seeing a variety of viewpoints with regard to this type of legislation.

I want to study it more myself and I think that this is what makes the representative form of Government work in having people come from all over the country and express their viewpoints with regard to legislation which really is a great moment one way or the other.

This is a very important piece of legislation and I want to thank you again for coming.

Senator HATCH. Senator Bayh would like to know this. How do you groups propose to fund a national initiative should this resolution pass? Would the 3 percent or 10 states foot the bill? Would the Federal Government foot the bill? Would the private groups foot the bill or who is going to fund this particular thing?

Mr. DIAMOND. You are talking about the elections?

Senator HATCH. Who would fund it?

Mr. DIAMOND. In terms of the election, they would take place in each State and each State would take care of it.

Senator HATCH. You’re saying that the private entities, that is the citizens would have to fund it?

Mr. DIAMOND. The measure would be placed on the ballot during the regular congressional elections so that there would not be a special election.

Senator HATCH. But the question is this. When you start the process, the initiative petition, who is going to pay for all the process? Who is going to pay for the verification of petition signatures?

Ms. KOUPAL. The same people who now pay for it.

Senator HATCH. Basically the State?

Ms. KOUPAL. The election of Presidential people and congressional people.

Senator HATCH. Isn’t it the State in California?

Ms. KOUPAL. Yes.

Senator HATCH. Twenty-three cents per individual signature?

Mr. THOMSON. No, that was somebody else’s figure.

Senator HATCH. Somebody said that in their particular state it was 23 cents a signature.

Mr. DIAMOND. Each State right now determines for itself how to conduct elections, and in respect to verifying signatures, I think that the States ought to be free to experiment. For example, in California up until a few years ago each signature had to be separately and individually verified by the registrar of voters of a particular county in which the signature was obtained. More recently they have gone to another method, which is a random sampling type method, to save money and for other purposes. So, we think this should be a matter left to the States because the States after all are the ones who are really responsible for conducting it.

Senator HATCH. You wouldn’t then federally fund the process?

Mr. DIAMOND. No.

Senator HATCH. Mr. Fish, do you have any comments on this as to the cost or the economic impact to this?

Mr. FISH. I have not given the cost or economic impact any atten­tion at all. I assume that it would be very costly but I do not know how costly or where the money would come from. I thought that funding would come from voluntary contributions but apparently some people have other ideas.

Senator HATCH. All right. Mr. Dent?

Mr. DENT. On a citizen level of collecting the signatures and the process leading up to placing the measure on the ballot, you could obviously have the expense borne by the citizens.

Senator HATCH. By the promoters?

Mr. DENT. Yes.

Senator HATCH. You would agree then with the rest of the panel about signature verification and that it has to be a State problem and not a Federal problem?

Mr. DENT. I have really not given it too much thought. I would have to defer on that.

Senator HATCH. I think that is important. Thank you very much.

We’ll be happy to have any additional information.

[The statement submitted by Mr. Diamond from the People’s Lobby was marked “Exhibit No. 15” and is as follows:]

 

[EXHIBIT No. 15]

 

STATEMENT BY PEOPLE’S LOBBY BEFORE THE SUBCOMMITEE ON THE CONSTITUTION

 

AMERICA NEEDS A NATIONAL INITIATIVE

 

A Representative Democracy is strong to the extent that elected officials are able to represent clearly the citizens from whom they derive lawmaking power. There are many times when citizens choose to give their representatives license in creating solutions to problems. But there are also times when voters wish to reserve lawmaking power to themselves. It is that freedom of choice, exercised by the citizenry, which makes Representative Democracy strong and responsive to the needs of the people. That freedom of choice—the citizens’ right to resolve issues directly rather than through a representative—is lodged in the Initiative Process, a tool of self government needed nationally as well as locally.

 

The Initiative Is The Citizens’ Tool of Self Government

By gathering signatures on Initiative Petitions, citizens in 23 states may pro­pose Laws for consideration by the electorate. The extent of citizens’ powers under the Initiative, and the time and expense involved in implementing it vary from state to state. Using state Initiatives involves researching and drafting a proposed law; organizing large numbers of people to collect the signatures necessary to qualify a ballot measure; in many cases, categorizing each signa­ture with a precinct number; and always, educating voters on the measure once it is qualified. An attempt to responsibly enact a law by Initiative at the state level requires proponents of the measure-which sometimes include a number of organizations and individuals—to commit at least a year of their time and resources.

Such a commitment may appear burdensome, especially since there are proce­dures for lobbying elected representatives. Yet the Initiative Process Is used by both well organized and ad hoc interest groups, and by state and local officials, in spite of the increasing costs and numbers of people necessary to implement

1. For example, In recent years the Initiative has been used by citizens at the state level to reform campaign expenditure reporting requirements and to define acceptable relationships between lobbyists and government officials (Cal, Wash, & Ill); to prevent the expenditure of tax money for programs such as the Olympics which citizens did not believe to be a proper use of public funds (Col); and to ensure the safety and economy of energy sources (Cal, Ore, Wash, Ohio, Col, Mont, Mo). In addition, state legislators and locally elected officials place proposals on the ballot, by Initiative and by Referendum, for voter consideration. The Initiative has dealt with problems as narrow as whether dog race betting should be legal and as broad as whether nuclear power plants should be sited on state land.

Careful study of the Initiative shows that concerned citizens write and enact particular laws because electe~1 representatives do not enact them In their legislative capacity. In some cases, Initiative measures are a clear contradiction of actions taken by a legislative body. Other times, Initiative proposals offer solutions to problems on which legislators have taken no action, either by design or by neglect. But in almost all cases, citizens attempt to influence their representatives to enact laws before using the Initiative Process.

The fact that citizen groups have not been as successful in their lobbying efforts as they had originally hoped has caused a recent increase in the use of the state Initiatives. Successful lobbying requires the financial means of sup­port for full tine legislative advocates and researchers to follow the activities of legislators. For example, Unions and professional and trade associations achieve the tenacity required for effective legislative advocacy through stable and well established funding systems, and lobbying functions are only one of the services provided their members. But citizens newly organized around an issue of concern do not generally have access to the funding mechanisms used by well established organizations. Consequently, many citizen groups cannot represent themselves equally with established organizations before elected officials.

The Initiative Process is a much needed balancing force among interest groups. In an Initiative campaign, well established organizations still have a financial advantage over citizens newly organized, but the advantage is not as great. Since use of the Initiative generates a highly visible education campaign with a definite beginning and ending, funding sources are drawn to ad hoc groups. Citizens unable to represent themselves effectively in the moneyed arena of professional lobbyists are able, through the Initiative, to function in the forum of the voting public.

The Initiative is basically the citizens’ tool of self-government. It is that nagging little voice which speaks above all others to elected officials, estab­lishing the will of the majority. The Initiative ensures the security of self-gov­ernment in a Representative Democracy. It lightens the citizens’ burden of responsibility for government by providing them with the authority to shape

government. And it strengthens the legislators’ method of representation by providing a mechanism for meaningful citizen input.

 

Enactment of a National Initiative Depends on Trust in the Collective Intelligence of Citizens

Consideration of a National Initiative is founded on one basic question: can the people of this country be trusted to govern it? There is an illogical argu­ment presented by some political scientists and voters alike which contends that the Initiative is harmful because government is a specialized area in which lawmaking should be confined to elected representatives. Under our system of government that argument makes little sense, since the Initiative does not eliminate a function of the legislature, nor should it. Legislators play a crucial role in government, and would perform legislative functions with or without a National Initiative.

It is important to remember that under our system of government legislators

are elected by citizens—the same citizens who would use the Initiative. While voters can make a decision on a proposed law by analyzing a body of objective data—the same method used by elected representatives—selecting a legislator to act on behalf of citizens requires analyzing the candidates ability to legislate, as well as the fiber of a candidate’s heart. This latter decision is the more diffi­cult, and the one now entrusted to citizens. While the safeguards of the Consti­tution and the Bill of Rights protect us from ill conceived laws, we must now bear the burden of our mistaken judgment when we are poorly represented.

We have three branches of government to enact, implement, and interpret laws. Those functions are premised on the assumption that citizens retain con­trol of government because their representatives are elected. The truth of this assumption rests on legislators’ abilities to represent their constituents. We need the Initiative for those situations In which the assumption does not hold true, for in the collective talent and creativity of the citizenry lay the means to improve the quality of government and the health and welfare of the nation. Who, but the citizenry, can be safely entrusted with the final authority to govern?

It is important to note the origins of the Initiative Process in America. The Initiative was first established in the Western States at the en~ of the 19th

Century, and it had the effect of formalizing what citizens already considered their right. While Easterners continued to adhere to many of the political ideas and practices of Britain, they were unable to make them the law of the wilder­ness. Representative lawmakers of the West were delegates of the people in every respect, or they were quickly replaced. The Western pioneers seized the opportunity to shape their lives through direct democratic methods, while the Eastern establishment feared Western populist tendencies to be a forerunner of anarchy.

Fortunately, the history of the Initiative at the state level has proven the latter theory incorrect. The voting public is a conservatively careful body. If there is sufficient question that a proposed Initiative statute will disturb the status quo, the measure is defeated at the polls. Of the 335 state measures proposed by Initiative In California between 1912 and 1977, 160 qualified for the ballot, and 117 of those qualified were defeated. These figures are similar to those for city and county measures as well as measures proposed in other states.

 

The Initiative Improve the Quality of Representative Democracy

There are several advantages produced by the Initiative Process and demon­strated at the state and local level. First, the Initiative provides a mechanism for citizen involvement in government which is lacking in other respects. More voters express their views at the ballot box when Initiative Propositions are being considered. For example, election night coverage of the 1976 Presidential race attributed increased voter turn-out in six states to interest in Initiative measures. Furthermore, consistent use of the Initiative Process creates a citizenry which is better informed about the issues that affect their daily lives, because Initiative measures are usually covered extensively by the media and argued in public forums by both proponents and opponents of the measure.

Secondly, the Initiative Process channels some of the unrest often expressed in demonstrations, protest rallies and actions of civil disobedience Into con­structive reform proposals. To use the process, citizens must provide creative and realistic solutions to social problems.

Thirdly, consistent use of the Initiative creates a more responsive legislature. The Initiative provides elected officials with direction from constituents, which makes the task of representation easier to perform. If anything, the quality of the legislature is enhanced by the Initiative.

Finally, citizens who participate in the Initiative Process often measure satisfaction with elected officials by their performance, because citizens begin to think in terms of issues rather than personalities. This phenomenon is highly visible in Swiss use of the Initiative and was aptly described by John Kenneth Galbraith in The Age of Uncertainty:

“The Swiss example has always encouraged me to believe that there Is power and effectiveness in democracy. It is the Swiss instinct that problems can be solved by the collective responsibility and intelligence of the people themselves. It is that responsibility and intelligence that count. Accordingly, the solution lies with the citizen, not the leader. The Swiss citizen does not delegate to the great in the belief that they have the answers. He seeks the answers . . . In consequence, many more elections are to resolve issues than to elect leaders. In further consequence, the Swiss have had few noted leaders, few heroes.”

 

THE PROPOSED CONSTITUTIONAL AMENDMENT FALLS SHORT OF ITS MARK

 

The Proposed Constitutional Amendment Contains Barriers to the Initiative Process.

With most good ideas, there are problems as well as advantages in their implementation. The Initiative is no exception. Barriers can be built into the Initiative which only serve to frustrate and further alienate the citizenry. Some of those barriers are apparent in state Initiative Provisions and in the proposed Constitutional Amendment.

The proposed Constitutional Amendment takes an important step in strength­ening our Representative Democracy, but it does so half-heartedly. The major deficiency in the proposal lies in the possibility of amendment or veto of the peoples’ laws by elected representatives. The Initiative is based on the theory that final authority to enact laws rests with the citizenry, and that the legisla­tive branch of government has failed to respond to the public’s demand for law in a particular area. It does not seem wise on the one hand to let the public go through the exhausting process of the Initiative only to have Congress repeal or amend such law or the President veto it. To allow amendment or veto of the peoples’ laws by elected representatives reduces the Initiative to little more than a glorified opinion poll.

Perhaps the intent of this provision in the proposed Amendment was to pro­vide a method to improve legislative language in the least cumbersome fashion, so that laws enacted by Initiative would achieve their desired effect. This can be accomplished without undermining the theory upon which the Initiative Is based and can provide an opportunity for Congress to work with citizens in implementing Initiative laws: Congress should be able to amend an Initiative law by simple majority providing the amendment is consistent with the intent and purpose of the Initiative law and strengthens rather than weakens it. Any other determination concerning the composition of peoples’ laws should be the business of the judicial branch of government.

Furthermore, the right of Initiative should go hand-in-hand with the right of Referendum. The Referendum is the process by which elected officials may refer legislative decisions to the citizenry, or citizens may support or reverse the legislatures’ actions before the Executive has implemented them. Should representatives be unsure of the will of the majority, the Referendum would provide Congress with the authority to seek the final legislative decision of the voters. Fundamentally, the Referendum is a Congressional right of Initiative, and should be enacted with the Initiative or shortly thereafter.

The scope of the Proposed Constitutional Amendment is not co-extensive with congressional authority, and the two should be identical. To grant citizens only some of the authority granted their elected representatives comes danger­ously close to creating a ruling class. It would be better to have no National Initiative than one which draws distinctions between kinds of legislative authority. Specifically, the proposed Constitutional Amendment prohibits use of the Initiative Process to declare wars, grant letters of marque and reprisal, make rules concerning captures on land and water, call forth the militia to execute the laws of the United States, suppress insurrections and repel invasions. It is doubtful whether the Initiative Process would be used for those purposes, nor should such use be encouraged. Nevertheless, those powers are included in the scope of Congressional legislative authority and should not be excluded from citizens’ legislative authority under the Initiative.

Study of state Initiative Provisions and their uses shows that it is a difficult task to set requirements for qualification and consideration of ballot proposi­tions. Requirements established in the states in the early 20th century and considered reasonable at the time are today significant obstacles to citizen use of the Initiative. Functions such as setting the number of signatures required to qualify an Initiative proposition, the number of states from which they must be collected, and the time frame within which the citizenry and the Attorney General must act, are more properly a part of the implementation of the pro­posed Constitutional Amendment, and should be left to the discretion of Con­gress. This allows flexibility and permits change should experience require it. Freezing implementation procedures into the Constitution, as the Proposed Amendment does, takes away a function which rightfully belongs to Congress and the citizenry and limits the life of the Amendment’s usefulness.

We submit for the record revised language for the proposed Constitutional Amendment which embodies the changes discussed today and request that the Subcommittee include those changes in their consideration of the Amendment.

 

CONCLUSION

 

The information which we have presented to this Subcommittee comes pri­marily from our own experience in using California’s Initiative Process, organiz­ing citizens in other states to enact laws by Initiative, and studying the effect of the Initiative Process on state government. Unfortunately, there are too few people in this country who have extensive working knowledge of the Initiative because expanding population and increased costs of mass communication have made the state processes expensive and difficult to use. Although barriers to using the Initiative should be solved in the implementation of a National Initiative, Congress would be wise to consider and study them at this time.

America needs a National Initiative, but the proposed Constitutional Amend­ment falls short of establishing it. We ask that this Subcommittee carefully consider the contradictions apparent in the proposed Constitutional Amend­ment and submit to Congress a measure which embodies the theory of the Initiative Process: that legislative responsibility and authority rests with the people. What is important to remember in establishing and implementing a National Initiative is that the collective intelligence and creativity of the citizenry will prevail. We must trust in that collective intelligence to preserve the integrity of our system of government and enact a National Initiative reflective of that trust.

 

DRAFT INCLUDING REVISIONS SUGGESTED BY PEOPLE’S LOBBY

 

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.

Resolved by the senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution If ratified by the legislatures of three-fourths of the several states:

Section 1. All legislative powers granted by the Constitution shall be vested in the Congress of the United States, which consists of the Senate and House of Representatives, but the citizens of the United States reserve to themselves the power of Initiative.

Section 2. The initiative Is the power of the electors to propose statutes and to adopt or reject them.

Section 3. An Initiative measure may be proposed by presenting to the Attorney General of the United States a petition that sets forth the text of the proposed statute and contains signatures of qualified electors the number of such signatures to be determined by appropriate legislation. Legislation shall be enacted to determine the number of states from which any portion of such signatures shall be gathered and the amount of time during which the signa­tures may be gathered. Legislation may be adopted to limit Initiative measures adopted under this Amendment to one subject.

The Attorney General shall determine the validity of the signatures contained in such petition pursuant to legislation to be adopted pursuant to this Amend­ment. Upon determining that such petition contains the required number of valid signatures, he shall certify such petition. He shall then direct that the proposed law be placed on the ballot at the next general election held for choosing members of the House of Representatives. Legislation shall be enacted to provide reasonable procedures for the preparation and transmittal of such petitions, and for the certification of signatures on such petitions.

Section 4. A proposed law shall be enacted upon approval by a majority of the people voting on the proposal and shall take effect thirty (30) days after such approval unless a longer period of time is specified in the proposed law. Any law enacted pursuant to this Article shall be a law the same as any other law of the United States except that a law enacted pursuant to this Article may only be repealed or amended by a vote of the people, unless the proposed law specifies other methods of appeal or amendment; provided, however, that Congress may, under Article I of the Constitution, amend such law providing the amendment strengthens the law and is consistent with the purpose of the law. The people may vote to repeal or amend such a law by exercising the power of Initiative set forth herein or by voting on a repeal or amendment proposal placed on the ballot by an affirmative roll call vote of two-thirds of the members of each House duly elected and sworn. The Congress, by two-thirds vote of each House, may from time to time place proposals on the ballot which repeal or amend laws adopted pursuant to this Article, and may place any other legislative proposals on the ballot for voter approval or rejection, pro­vided, however, that no law, the enactment of which would violate the Consti­tution, may become effective. The Supreme Court shall have original jurisdic­tion to determine the constitutionality of any measure placed on the ballot by the electorate or the Congress. No law adopted pursuant to this Article may be vetoed by the President.

Section 5. The Congress and the people shall have the power to enforce this Article by appropriate legislation.

 

[Whereupon, at 12:25 p.m., the subcommittee adjourned.]