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Opening remarks SJR67 Bayh Abourezk








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 completed 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. Attorney General. If sufficient signatures are obtained, the proposed law would be placed on the ballot in the next congressional election.

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

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

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

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

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

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

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

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

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



Washington, D.C., December 9, 1977.


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

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

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

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

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

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

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

One technical problem of concern to this Department, since it would be charged with administrative responsibilities under the proposed amendment, is the requirement that the signature of registered voters be verified by the Chief Law Enforcement Officer. It must be recognized that some States, or counties within the States, do not register voters. This would place the Department in a position of attempting to verify voting qualifications under State law for each signatory in such States or automatically disqualifying all signatories in those States lacking a registration procedure. The Department is not equipped to perform this function on a national level.

While the Department recognizes the concern for citizen participation which prompts this proposal, it must oppose S.J. Res. 67 for the foregoing reasons.

The Office of Management and Budget has advised that it has no objection to the submission of this report from the standpoint of the Administration’s program.



Assistant Attorney General.

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





     Washington, D.C., January 18, 1978.


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

DEAR Ms. RIVLIN: On December 13—14, 1977, the Senate Judiciary Constitu­tion Subcommittee held hearings on the Voter Initiative Constitutional amend­ment introduced by Senators Abourezk and Hatfield, S. 3. Res. 67.

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

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

Thanking you in advance for your cooperation.


BIRCH BAYH, Chairman.





Washington, D.C., February 27, 1978.


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

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

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


ALICE M. RIVLIN, Director.


February 27, 1978.

  1. Resolution Number: S.J. Res. 67.
  2. Resolution title: Joint resolution proposing an amendment to the Consti­tution of the United States with respect to the proposal and the enactment of laws by popular vote of the people of the United States.
  3. Resolution status: As referred to the Senate Committee on the Judiciary, July 11, 1977.
  4. Resolution purpose: S.J. Res. 67 would allow the use of the initiative proc­ess at the national level. The initiative process allows citizens to place a proposed law on the ballot by gathering signatures of registered voters, equal in number to 3 percent of the ballots cast for President in the last Presidential election, including signatures from 10 states equal in number to 3 percent of the ballots cast in the last Presidential election in each of the 10 states. The chief law enforcement officer of the United States must certify the validity of the signa­tures, in consultation with the states, within 90 days after the presentation of the proposed law.
  5. Cost estimate: To become effective, this amendment must be ratified by three-fourths of the states. Thus, by itself, passage of the resolution by Congress does not result in a cost to the government.

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

Estimated costs:                                                                             Million
Fiscal year 1979 ——————————————————–              0
Fiscal year 1980 ——————————————————–                . 8
Fiscal year 1981 ——————————————————–                . 9
Fiscal year 1982 ——————————————————–           1. 9
Fiscal year 1983 ——————————————————–              1. 0

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

The costs of this amendment fall within budget function 750.

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

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

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

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

Additional costs to the federal government with the enactment of 5.3. Res. 67 were projected to be incidental.

  1. Estimate comparison: None.
  2. Previous CBO estimate: None.
  3. Estimate prepared by: Chris M. Blair and Kathy Weiss.
  4. Estimate approved by:

(For James L. Blum,

Assistant Director for Budget Analysis.)

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

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

I want also to say that the only journalistic criticisms of this pro­posal for the initiative have come from George Will and James Kilpatrick, which leads me to believe that we are on to something good.

I will put my own statement in the record and ask that it be printed in full.



Five months ago, Senator Hatfield, Senator Gravel and I intro­duced Senate Joint Resolution 67, the voter initiative amend­ment. This marked the first time in our Nation’s history that legisla­tion had been introduced into either the House or the Senate which would allow for the use of the voter initiative process at the national level, even though the process has been proven effective in 23 States during the past 60—70 years.

Since the introduction into the Senate, two bills have been intro­duced in the House, one by Congressman Jim Jones, (D-Okla.), and another by Congressman Guy Vander Jagt (R-Mich.). Fourteen Members of the House have cosponsored these two pieces of legisla­tion.

Today, this subcommittee becomes the first congressional com­mittee or subcommittee in either Chamber to consider this further expansion of voting rights of the American people—the right to vote directly on issues. In the five months since its introduction on July 11, the voter initiative amendment has become a serious consti­tutional proposal which is commanding the support of liberals, con­servatives, Republicans and Democrats alike. The voter initiative process is truly a bipartisan issue and it has generated support from the Americans of every political persuasion.

The response I have received to the introduction of this amend­ment has gone beyond my highest expectations. I have been con­tacted by a number of potential candidates for the House and the Senate who plan to use this issue in their campaigns next year. The mail I have received and the extraordinary amount of media cover­age given to this issue has convinced me that the concept of the American people voting directly on national issues is an idea whose time has come.

It is clear that the voter initiative amendment is overwhelmingly supported by the American people. The public again expressed sup­port for the right to initiative, when, just last month, the voters of the District of Columbia adopted the voter initiative process by an overwhelming 83 percent vote. In the 23 States where the voters have previously adopted the initiative process, there has never been a serious effort to repeal the process. In these States, the voter initia­tive has become an accepted, integral part of the decision making process.

The amendment has generated the support it has because the voting public realizes there is a clear need for it. Time after time, special interests of one kind or another block legislation in the Congress— legislation that often is strongly supported by a majority of Americans. In these instances, the people should have the right to make their voices heard in a legitimate, constructive manner. The voter initiative would provide the means to exercise that right.

The voter initiative provides a concrete means for citizen par­ticipation. It would make the legislative branch more accountable to the voters and it would allow for open educational debates on im­portant issues. Perhaps most importantly, it would lessen the sense of alienation from Government to which millions of Americans now profess and would perfectly complement our representative form of government by enabling the average citizen to more effectively and directly communicate with the Federal Government.

Today, people in 23 States including some of our largest—Cali­fornia, Florida, Massachusetts, Michigan and Ohio—and hundreds of cities and counties across this country, vote regularly on an as­sortment of issues ranging from State constitutional amendments to statewide voter initiatives; to questions referred by their legisla­tive bodies; to local bond issues and tax levies. The right to vote on issues is a fixture of American life—a right that has been responsibly exercised countless times in the past several decades.

The voter initiative amendment and the growing national move­ment it has inspired is founded on the belief in the wisdom of the American people. This conviction is the cornerstone of our Constitu­tion, as well as our entire legislative and judicial system.

Because the foundation of the voter initiative process is our trust in the American people, politicians who wish to oppose the initiative process place themselves in an especially difficult position. Opponents of the initiative process appear to be saying that they don’t trust the people or that the people are not educated enough to vote on issues. What the critics ironically forget is that these very same “un­trustworthy and uneducated” people can be trusted and are educated enough to elect politicians to office.

While the arguments used in opposition to the voter initiative process deserve careful analysis and consideration, it is clear from the history of the initiative process, that the opposition arguments have been soundly refuted time and time again. The arguments that have been raised since the introduction of this amendment last July are the same arguments that were used in the early 1900’s when State after State adopted the voter initiative and are the same arguments that have been advanced in every city, county, and State where the issue has been debated since my home State of South Dakota first adopted the process in 1898.

In one way or another the debate about the voter initiative always comes down to whether politicians trust the American people suffi­ciently to allow the citizens the right to vote directly on issues. In my mind, it is clear that the people have proven themselves worthy of this direct democratic process.

One of our Republic’s strengths often cited by constitutional scholars is that the States can be laboratories for testing new ideas. In this case, the States, after an experiment of seven decades, have proven beyond a doubt that the voter initiative is a sound, basic, democratic process. The use of the initiative in the States has only increased the trust that we place in the American people. In votingon initiative issues, the people repeatedly have shown restraint and good judgment, and I can say that despite the fact that I personally may not have always agreed with the outcome of a particular issue.

This voter initiative amendment is not advanced as a panacea for the problems of our society and I do not want to give you the impres­sion that it is. The process does have its limitations. However, I think it is important to consider the voter initiative process vis a vis the Congress of the United States. The initiative is probably no better, no worse than the Congress. It is simply another, more demo­cratic means of making law, a check and balance to be issued when normal procedures break down.

I introduced this constitutional amendment, not because I seek to advance one particular issue or a set of “liberal” issues but because I think the American people deserve this basic democratic right. This right will help restore the people’s shattered faith in their ability to effect the course of their Government under which they live. In addition, the initiative process is a great educational tool which will result in open, significant debates on issues which other­wise might have been inadequately addressed. It is an important extension of voting rights, as were 6 of the last 10 constitutional amendments and is part of the evolutionary trend toward increased citizen participation in the affairs of our Government.

Since I am not seeking reelection, I do not expect to see the lengthy ratification process completed before I retire, but II expect that very soon after I leave elected politics, the Senate and the House of Representatives will send this constitutional amendment to the States for their ratification.

I look forward to these hearings today and tomorrow because we will hear from people of all political persuasions who have had ex­perience with the voter initiative process and who believe that the Congress should adopt this important constitutional proposal.

[Senate Joint Resolution 67, introduced by Senator Abourezk, was marked “Exhibit No. 4” and is as follows :]