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ment of State was specially deputized to act as a judge of fraud charges and a large part of his time was consumed by the performance of his duties along this line. It is alleged that most of the petitions which were adjudged fraudulent to such an extent as to prevent the measures which they contained from appearing on the ballot, were circulated by paid solicitors whose only interest was the procurement of their per-name compensation. In California charges of fraud were made in connection with several petitions circulated for the submission of measures to the voters at the 1914 election. In Oregon fraud charges have been frequent. In State vs. Olcott, 125 Pac. Rep. 303 (1912), the State Supreme Court was called upon to investigate the circulation of an initiative petition, and in its opinion the following language was used:
“ That there was no general and spontaneous desire on the part of the general public to withhold the appropriation from the university soon became apparent, and the promoters were compelled to employ an attorney to secure the necessary signatures. This in itself was not an unusual course, as it is difficult to find citizens who are so devoted to their principles as to be willing to circulate such petitions without compensation. They employed Mr. Parkinson of Portland, who undertook to procure such signatures for 3} cents a name. He employed a large number of circulators, who went forth into the highways and byways to procure signatures. Seven of these, at least, devised an easy method of earning their money. They would get together and pass their petitions around each signing a few names in a disguised hand, thus minimizing the chance of detection. These forgeries were clearly proved, mostly by the admission of the parties. The petition as filed contained 13,715 names. Of these it is admitted that 3778 are forgeries, perpetrated
by dishonest circulators." Charges of fraud have also been made in South Dakota and in Ohio. Those who place the blame for the perpetration of frauds of this sort on the possibility of having petitions circulated for pay, allege that aside from the actual forgery of names by unscrupulous circulators, persons who receive pay for the names which they procure bring undue influence of every description to bear upon those from whom they solicit signatures. They frequently urge that to sign the petition does not commit the signer to the measure, while it will bring from three to fifteen cents into the pocket of the solicitor. It is also alleged that persons who make capital out of the circulation of these petitions often misrepresent their contents in order to procure names.
Friends of the initiative and referendum deny that fraud is exclusively committed by those who are paid for circulating
petitions. They allege that voluntary circulators are just as capable of the practices charged to hired solicitors. Regardless of the merits of the controversy between the defenders and opponents of paid circulation, it is obvious that this question bears on the technical perfection of the proposed measure very indirectly, if at all. It may be that if only voluntary solicitation of signatures were possible, fewer measures might appear on the ballot, but it is not evident that the measures eliminated would be the least perfectly drawn. It seems to me, therefore, that this subject is rather irrelevant to the question before your committee.
Another matter which has been very strenuously debated in initiative and referendum states is the manner of advertising initiated and referred measures. Those most interested in the success of direct legislation insist that unless measures and arguments for and against them are brought to the attention of the voters in a reasonably convenient way, the possibilities of the initiative and referendum cannot be thoroughly developed. This contention cannot very well be denied.
Merely to publish proposed measures in fine print in a regular edition of a newspaper of general circulation for a stated number of times must necessarily have but little effect in informing the voters as to the measures on which their ballots are to be cast. On the other hand, the circulation by the state of a pamphlet similar to that distributed by Oregon, cannot help but bring home to a certain percentage of the voters, whether large or small, intelligent information with respect to the nature of the questions which are to come before them. But here, again, while a wellinformed electorate may vote more intelligently on measures, the fact that the voters are well-informed will not technically perfect measures which have already been initiated. It may prevent ill-considered and poorly-drawn measures from being adopted; that is the only possible effect it can have on initiative draftsmanship.
Coming now to the direct consideration of the drafting of initiated measures, it must be remarked at the outset that no systematic effort has been made in any state to safeguard the statute-books against ill-prepared direct. legislation. Heretofore every suggestion to supervise the use of the initiative has been met by its friends as an attack on the principle of the initiative; and as the majority of the voters seem to regard both the initiative and referendum as so-called “popular” institutions, practically every effort to curtail the freedom with which they may be invoked has been unsuccessful.
In a number of states, however, the initiative procedure established in the constitutional provisions incorporating the initiative as a part of the state government tends to protect the state
against the adoption of wholly bad legislation. I refer to the indirect system of initiating as opposed to the direct.
Under the indirect initiative it is impossible to place a measure on the ballot by initiative petition, unless it has first been proposed to the legislature. If the measure is poorly drafted, the theory is that this fact will appear in the legislative discussion of it, and the result will be its decisive defeat at the polls. The states which restrict the initiative in this way are Maine, Michigan, Nevada, North Dakota, Ohio, and Washington. In these states the proponents of an initiative measure draft it, circulate their petition, and present it to the Secretary of State, whose duty it is promptly to refer the petition to the legislature. As a general rule the legislature is given 40 days in which to consider the measure. If the legislature enact the measure as it stands the law is subject to referendum petition. It would, of course, require a separate referendum petition to bring it before the voters. If the legislature absolutely refuses to enact the measure as it stands, or in a modified form, in all of the states mentioned, except Ohio, it is the Secretary of State's duty to submit the measure to the voters at a subsequent election. If the legislature passes the law in a modified form, the general practice is to submit the amended measure and the initiated measure to the voters at the same time, and permit them to choose one or reject both of them. In Ohio when the legislature does not pass the proposed measure or passes it in modified form, a supplemental petition signed by electors who did not sign the original petition must request the submission of the proposed measure to the voters in order to have it placed on the ballot. If such a petition is circulated it may call for the submission of the initiated measure to the voters, having incorporated in it any amendments thereto which were introduced in the legislature.
Among the strongest objections which have been voiced against the initiative are that there is no opportunity for debate or deliberation upon initiated measures, and that the voters are often required to decide upon their adoption or rejection without having had any intelligent arguments either pro or contra to guide them. The indirect initiative certainly tends to avoid the dangers due to a lack of opportunity for debate and consideration involved in the use of the direct initiative, where the procedure is the drafting of the measure, the circulation of the petition, and the direct submission of the measure to the voters at a subsequent election.
It must be noted, however, that except in Ohio the indirect initiative is open to all the objections urged against the direct initiative, except that the legislative debate may bring before the public such objections to an initiated measure as to make its adoption practically impossible. In Ohio the provision which permits the proponents of the measure to incorporate in it suggested changes introduced in the legislature is an intelligent
plan to curtail the dangers of having poorly-drafted enactments written upon the statute books.
As previously stated, the adoption of the indirect plan of initiating measures is the only effort which has thus far been made to prevent badly drawn measures from being adopted. Obviously the precaution taken by this particular method of incorporating the initiative is very inadequate. But to any proposal that other safeguards be adopted, those responsible for the adoption of the initiative in any state always answer that initiative measures compare favorably with measures adopted by the legislature so far as draftsmanship is concerned. They point out that as a general rule the method of drafting measures of this sort is very much more careful than the method of drafting legislative measures, because the proponents of initiative measures are generally vitally interested in their adoption and will spare no effort to perfect them to the greatest possible extent before their proposal. "Attention is called to such bodies as the People's Power League of Oregon and the Direct Legislation League of Colorado, both of which have proposed a comparatively large number of measures in their respective states. The Oregon People's Power League is constructed around Mr. W. S. U’Ren, whose intelligence and ability are not questioned even by his enemies. In the People's Power League an executive committee of about ten members plans the legislative campaign for any particular election. It rough-drafts the proposed measures and circulates them for suggestion and criticism. Subsequently, after the criticisms and suggestions have come in, the measure is gone over with a view to its technical perfection as well as to its improvement substantively. The measure is then brought directly before the voters inasmuch as Oregon has only the direct initiative. The Colorado Direct Legislation League is even more careful in its method of preparing measures. Under its constitution no measure can be initiated by the league unless it has been brought before three meetings of the entire membership of the league and passed three readings. In other words, the Colorado League is a voluntary legislature, all of whose members are presumably essentially interested in every measure which is proposed, because of the fact that an effort is made to have the league's endorsement of measures carry with it an assurance to the voters that the measure has been carefully considered and drawn, and is believed by the membership of the league to stand for sound principles, carefully and accurately expressed.
1“ Some of the measures prepared by the Colorado League have been criticised on the ground of obscurity and ambiguity. See address of Judge Jesse G. Northcutt, Vol. 16, Colorado Bar Association Reports, pp. 234, 251; and remarks of Mr. Ernest Morris, Supra, p. 37.” W. D. L.
At the same time the most ardent friends of the initiative cannot deny the fact that although many measures are proposed by such bodies as the People's Power League and the Direct Legislation League, the initiative is open to all comers and any group or individual may place a measure on the ballot without having gone to any pains to have it skilfully prepared before its proposal.
As I understand the problem before your committee, it is the conception of a possible method of protecting the statute-books against ill-drafted initiative measures which may be written into law because of the fact that the large mass of voters are unable to determine for themselves whether a measure is well drawn or poorly drawn, technically speaking. There are several possible steps which may be taken in an effort to solve this problem. One possibility would be to require every initiated measure to be prepared by a state legislative reference bureau or drafting association, and to forbid the placing of any measure on the ballot not drawn by such an official department of the state government. To this suggestion the friends of the initiative would doubtless object that it is unfair to require the preparation of initiative measures in this way unless the same restriction is made to apply to measures introduced into the legislature. It would be contended, and could, doubtless, be proved, that the percentage of well-drafted initiative laws is as high, or higher, than the percentage of welldrafted measures introduced into the legislatures of the various states. The proposal would, therefore, be regarded as an ultraconservative effort, not to assist the use of the initiative, but to throttle it.
If the suggestion of the Committee on Legislative Procedure of the Massachusetts Legislature should be adopted in states having the initiative, requiring every bill introduced into the legislature to have been prepared or revised by the state drafting bureau, there could certainly be no objection to requiring initiative measures to be prepared or revised by the same bureau prior to their initiation; and such a requirement should most assuredly be enacted into law.
If, however, it is not desirable to go so far as to require initiative measures to be prepared by a state drafting bureau, it would doubtless be possible to require state legislative reference bureaus to draft initiative measures if requested to do so by those proposing to place them on the ballot. This suggestion would not be open to the same objection as that previously mentioned. State legislative reference bureaus, as a general rule, are required to give members of the legislature any assistance requested, and to enlarge their sphere of activity by requiring them to prepare measures for those intending to use the initiative, could not be considered in any other light than as an effort to improve the quality of initiated measures.