¹ Article by Roosevelt, Theodore reprinted in Munro, W. B., The Initiative, Referendum and Recall (New York, 1912), pp. 63–64Google Scholar.

² Two excellent and relatively recent studies of direct legislation are those by Key, V. O. and Crouch, W. W., The Initiative and Referendum in California (Berkeley, 1939)Google Scholar and Pollock, J. K., The Initiative and Referendum in Michigan (Ann Arbor, 1940)Google Scholar. In addition the reader may consult Johnson, C. O., “The Initiative and Referendum in Washington”, Pacific Northwest Quarterly, Vol. 36, pp. 29–63 (January, 1945)Google Scholar; Barnett, J. D., The Operation of the Initiative, Referendum, and Recall in Oregon (New York, 1915)Google Scholar; Colorado Legislative Reference Service, The Initiative and Referendum in Colorado (1940)Google Scholar; Schumacker, Waldo, “Thirty Years of the People's Rule in Oregon: An Analysis”, Political Science Quarterly, Vol. 47, pp. 243–258 (June, 1932)Google Scholar; Radin, Max, “Popular Legislation in California”, Minnesota Law Review, Vol. 23, pp. 559–584 (April, 1939)Google Scholar; Crouch, W. W., “The Constitutional Initiative in Operation”, American Political Science Review, Vol. 33, pp. 634–639 (August, 1939)Google Scholar; Palombara, J. G. La, A Study of the Initiative and Referendum in Oregon, 1938–1948 (Corvallis, 1950)Google Scholar.

³ Kdderly v. Portland, 44 Ore. 145 (1903).

⁴ Pacific States Telephone and Telegraph Co. v. Oregon, 233 U. S. 118 (1912).

⁵ Straw v. Harris, 54 Ore. 430 (1910).

⁶ See the Modern Library edition, pp. 243–244.

⁷ Kiernan v. Portland, 54 Ore. 474 (1910).

⁸ Professor C. J. Friedrieh has suggested that direct legislation itself possesses a representative quality since it is exercised by the electorate on behalf of all the people and since the electorate is represented by those people actually participating in the popular lawmaking function. See his Constitutional Government and Democracy (Boston, 1946), pp. 545–546Google Scholar.

⁹ Lowell, A. L., Public Opinion and Popular Government (London, 1914), p. 130Google Scholar.

¹⁰ Hall, A. B., Popular Government (New York, 1921), p. 121Google Scholar, pointed out that “When the public discovered the extent of legislative incompetence and corruption that had resulted from popular indifference it was but human nature for them to seek a veto upon legislative power and the creation of an alternative device.”

¹¹ See, among others, Lowell, op. cit., p. 139; Munro, op. cit., p. 2. Ford, H. J., in Representative Government (New York, 1924), pp. 287–288Google Scholar, pointed out that direct legislation had proved ruinous to the ancient Greeks and Romans and that it was partially responsible for the Reign of Terror which followed the French Revolution.

¹² Ibid., pp. 153–155. Ford found many defects in the initiative and referendum, and was, therefore, in favor of some other system of checking the elected representatives. Cf. Smith, J. Allen, The Spirit of American Government (New York, 1907), p. 354Google Scholar, who considered the initiative essential to the ability of the people to mold the policy of the state. Only through the transfer of legislative power to the electorate would the government be truly representative, i.e., responsible to the people.

¹³ Ford, op. cit., p. 305.

¹⁴ For a revealing study of the factors leading to the adoption of direct legislation in Oregon, see Culbertson, P. T., A History of the Initiative and Referendum in Oregon, unpublished doctoral dissertation (Eugene: University of Oregon, 1941)Google Scholar, Ch. 1.

¹⁵ Early studies in Oregon and elsewhere refuted this claim. See, for example, Barnett op. cit., p. 166; Beard, C. A. and Schultz, B. E., Documents on the State-Wide Initiative, Referendum and Recall (New York, 1912), p. 23Google Scholar.

¹⁶ The Oregon Supreme Court followed this reasoning in the Kiernan Case, above, pp. 474–475, when it concluded that “The extent to which a legislature of any state may enact laws is, and always has been, one of degree, depending upon the limitations prescribed by its constitution; some constitutions having few and others many limitations. But in all states, whatever may be the restrictions placed upon their representatives, the people, either by constitutional amendment or by convention called for that purpose, have had, and have, the power to directly legislate, and to change all or any laws so far as deemed proper—limited only by the clear inhibitions of the national constitution.”

¹⁷ See, for example, Munro, op. cit., pp. 25–26; Eaton, A. H., The Oregon System (Chicago, 1912), pp. 114–118Google Scholar.

¹⁸ Oberholtzer, E. P., The Referendum in America (New York, 1911), p. 476Google Scholar. As recently as 1948 the referendum was referred to as “a ‘buck-passing’ device by which the legislature may evade its responsibility for making decisions” (The Book of the States, 1948–1949 [Chicago, 1948], p. 156Google Scholar).

¹⁹ In his study of the early Oregon experience with direct legislation, Barnett, op. cit., pp. 169–170, concluded that the optional referendum was “vicious in that it may tempt the assembly to shift the responsibility for the enactment of legislation, for which it has been chosen, back upon the electors, and also to add to the already overloaded ballot.” In addition to this he pointed out that the optional referendum permitted the assembly to circumvent the governor's veto, since that power does not apply to referred measures. The latter argument is mainly curious.

²⁰ Out of a total of 365 proposals submitted to the Oregon electorate in 24 general and 12 special elections, the legislature was responsible for 148, of which 106 were constitutional amendments referred by compulsion and 42 were legislative measures submitted at its option. On measures which it failed to submit, the obligatory referendum was invoked by the people 42 times. In Michigan, the voters considered 84 proposals in 26 elections from 1910 to 1939. Of these, 56 out of 79 amendments were referred by the legislature and one out of five statutes were referred. See Pollock, op. cit., Ch. 3. Over the period 1914 to 1944, the Washington legislature submitted 31 amendments, 4 statutes by compulsory referendum and 5 statutes at its option. This makes a total of 40 submissions out of 94 proposals considered by the electorate in 18 general elections. See Johnson, loc. cit., pp. 54–63. California's experience indicates that out of 325 proposals submitted to the electorate from 1912 to 1936, the legislature was responsible for 192 proposed amendments and 13 statutes. See Key and Crouch, op. cit., Ch. 6. In Colorado the legislature, up to the general election of 1938, had not exercised its option to submit legislation. It was responsible, however, for having proposed 32 of the 73 constitutional amendments considered in addition to the submission of three questions regarding the calling of a state constitutional convention. See Colorado Legislative Reference Service, op. cit.

²¹ This is true even of California, where an average of 22.8 proposals was submitted at the thirteen general elections between 1912 and 1936. See Key and Crouch, op. cit.

²² In Oregon the average has been 59.4%; in California, where the legislature has been very active in submitting constitutional amendments, the average has been 37%. In Colorado and Washington, on the other hand, the electorate accounted for 73.5% and 61.7% of the total submissions respectively, as compared with 32% in Michigan.

²⁸ In Michigan the greatest number of proposals submitted at any one election was 8 in the general election of 1932. The voters in that state have been called upon to vote on 3.2 proposals per election from 1910 to 1939. In Washington the greatest number of submissions came in 1914, at which time 10 proposals appeared on the ballot. The average number of proposals per election in this state was 5.2 up to 1944. In California, where the average number of submissions per election has been the highest, the voters disposed of 48 proposals in 1914. Pollock, op. cit., pp. 17–18; Johnson, loc. cit.; Key and Crouch, op. cit., p. 538.

²⁴ Oregon's 1948 pension plan gave the voter no indication on the ballot that it would cost the state more in one year than the existing revenues would bring in over a two-year period. In addition, the bill made no provision for deriving funds to cover the cost of the plan.

²⁵ Key and Crouch, op. cit., p. 536, concluded that the California electorate has not been stampeded to vote “no” by those who advocate such procedures. Pollock's study, op. cit., pp. 50–51, indicated that outside of one or two counties that voted against the state generally, “boob voting” was not a significant factor in the operation of direct legislation in Michigan. Cf. Schumacker, loc. cit., p. 250, who assumes that the difference in the number of votes cast on similar measures is one way of gauging “blind voting.” This system fails to consider the possibility of honest difference of opinion regarding similar measures. Exactly the same vote on similar measures would seem to constitute sounder grounds for suspecting the intelligence of the electorate. But cf. Smith, A. F., “Can We Afford the Initiative”, National Municipal Review, Vol. 28, p. 437 (October, 1949)CrossRefGoogle Scholar, who contends that the California voter votes “no” when in doubt. This same view regarding Oregon has been expressed by Schumacker, loc. cit., p. 251. See also Luce, Robert, Legislative Principles (Boston, 1930), p. 582Google Scholar.

²⁶ See, for example, Kneier, C. M., City Government in the United States (New York, 1947), p. 481Google Scholar.

²⁷ For a detailed study of this problem, see LaPalombara, op. cit., Ch. 4. Key and Crouch, op. cit., p. 537, also point out that there is no study substantiating the claim “that the length of the ballot operates as a factor to discourage voter participation.” The study of California experience by these students led them to the conclusion that participation fluctuation is the result of causes other than the number of propositions on the ballot. But cf. Pollock, op. cit., pp. 45–46, who points out that, although factors other than the number of proposals are important, there has been a general decrease in voter participation as the number of issues presented is increased.

²⁸ This may be explained in part by the fact that initiative proposals, which have always attracted a greater average voter participation in Oregon, traditionally appear at the bottom of the ballot.

²⁹ In California, the frequent “ham and eggs” or “thirty Thursday” pension proposals have led some students to question the utility of the initiative. See, for example, the recent article by A. F. Smith, loc. cit. In Washington, the voters enacted a pension plan in 1948 which has put the fiscal structure of the state in jeopardy. The 1948 pension plan accepted by the voters in Oregon would have had a like result. The Attorney General's opinion, of questionable juristic merit, avoided that result by ruling the plan unconstitutional.

³⁰ See, among others, Barnett, op. cit., pp. 40–41; Lowell, op. cit., p. 161; Walker, Harvey, The Legislative Process (New York, 1948), p. 456Google Scholar.

³¹ Johnson, loc. cit., p. 53, has suggested the expansion of this method in Washington where it is already authorized as a form to be used at the option of the petition sponsors. Up to 1944, it has been used only four times.

³² Professor Johnson, ibid., p. 41, has said of Washington's experience that “Few, if any, absurd or freakish laws have been enacted in Washington through the initiative, and few obviously beneficial bills have been defeated by use of the referendum.”

³³ Key and Crouch, op. cit., p. 553, have recommended that the number of signatures required in California be decreased in order to give the smaller groups a better chance to compete with the well-organized and well-financed organizations. These students contend that such action would not unduly increase the number of measures presented to the electorate.

³⁴ The Biennial Report of the Secretary of State of the State of Oregon, 1946–1948, indicated that the cost of the Official Voters' Pamphlets for the primary and general elections of 1948 was approximately $140,000.00. In the special election of 1947, the cost was $30,968.08. From these totals would have to be subtracted $20,510.00 derived from candidates' filing fees, and charges for space in the primary and general election pamphlets.

³⁵ Key and Crouch, op. cit., Ch. 5, have conducted an excellent study of direct legialative campaign expenditures in California. The problems involved in reporting cost and in enforcing the law requiring the reporting are very cogently treated.

³⁶ Hall, A. B., Popular Government (New York, 1921), p. 138Google Scholar.

³⁷ Beard and Schultz, op. cit., p. 35.

³⁸ ProfessorMathews, J. M., American State Government (New York, 1934), p. 205Google Scholar, has wisely pointed out that “Every example of ineptitude in popular lawmaking may be matched by a similar instance of legislative bungling.”

³⁹ The vote on this proposal was 242,000 against and 173,004 for the bill. Johnson, loc. cit., pp. 36–37, points out that early attempts of the Washington legislature to weaken the direct legislative procedures met with decisive defeat at the polls. He concludes that the representatives were completely out of step with the people and that direct legislation was necessary to prevent the sins of omission and commission of the legislature.

⁴⁰ Sehumacker, loc. cit., p. 253. This phenomenon has remained true during Oregon's entire experience with direct legislation. Of the 365 proposals considered by the electorate from 1902 to 1948, 144, or 39.1%, have been adopted. But the legislature has submitted 148 proposals, of which 71, or 48%, have been adopted as compared with the 57, or 36% adoptions out of the 175 initiated proposals and the 16, or 39% adoptions of the 42 proposals submitted by obligatory referendum.

Washington's experience indicates that the voters there have accepted 34, or 36% of the total number of proposals and that the legislature has met with success 35% of the time, as compared with a 37% adoption of those measures submitted by the popular initiative and referendum. See Johnson, loc. cit., p. 63.

In Michigan, the voters adopted 39.2% of the proposals, but the percentage of the legislative submissions accepted was 50.9% as compared with 15% for the electorate. See Pollock, op. cit., pp. 19–20.

In Colorado, 8, or 25% of the 32 amendments submitted by the legislature were adopted, while the voters accepted 11, or 26.8% of the initiated amendments. The legislature did not submit any statutes, but the electorate adopted 16, or 45.7% of the statutes initiated by the people. See Colorado Legislative Reference Service, op. cit.

⁴¹ Smith, loc. cit., p. 437.

⁴² Pollock, op. cit., pp. 19–20.

⁴³ In a study of the period 1938–1948 in Oregon, one of the writers found that legislative proposals received an average of 76% on amendments and 86% on statutes referred, as compared with an average of 85.6% on initiated amendments, 88.9% on initiated statutes, and 77.9% on statutes referred by popular petition. The same is true of Washington, Michigan, and California. Regarding the last state, Key and Crouch, op. cit., pp. 528–529, indicated that in only one instance up to the time of their study did a measure of legislative origin poll a higher percentage vote than measures popularly initiated. It should be noted that these figures indicate a decided growth in popular participation in Oregon over the general participation average of 75% found by Professor Schumacker in his earlier study. And these percentages are based on the total number of electors participating in elections. The average participation would be even higher if based on the total vote cast for public officials such as the Governor. In no election between 1938 and 1948 did a measure of legislative origin attract more voters than those submitted by the electorate.

⁴⁴ From 1938 to 1948 the participation on amendments was 87% as compared with 84.2% for measures submitted at general elections. Inclusion of special elections does, of course, raise the participation figure for measures submitted. The same phenomenon was found to be true of California. See Key and Crouch, op. cit., No sound conclusion can be drawn regarding Michigan's experience in view of the small number of statutes submitted thus far. In this state the participation was greater on amendments. Pollock, op. cit., p. 21.

⁴⁶ Key and Crouch, op. cit., p. 487.

⁴⁷ See, for example, Munro, op. cit., pp. 29–30; Barnett, op. cit., p. 21. Finer, Herman, Theory and Practice of Modern Government (New York, 1949), p. 563Google Scholar, has asserted that “The initiative has given a heaven-sent opportunity to professional and manufacturing groups to push proposals for their special advantage, while the citizens in general have not been impelled to initiate measures.”

⁴⁷ Key and Crouch, op. cit., p. 450, drew a like conclusion regarding the state of California. “It can hardly be said,” they remark, “that the inadaptability of the initiative procedure to compromise has worked seriously to the disadvantage of any particular interest group, unless the inconvenience of organizing and financing a campaign to defeat measures striking at their interests be so considered ….”

⁴⁸ Unlike restrictions on the power of the Washington and California legislatures regarding their ability to change or repeal statutes and/or amendments voted by the people, the Oregon system gives free reign to the legislature to repeal or amend any statute or to refer an amendment at the next special or general election. See Patton v. Withycombe, 81 Ore. 210 (1916); State ex rel. Pierce v. Slusher, 119 Ore. 141 (1926). For a general discussion of this problem, consult American Law Reports Annotated, Vol. 97, pp. 1046–1053 (San Francisco, 1935)Google Scholar.

⁴⁹ Only a qualified voter may sign a petition in Oregon. This does not mean a registered voter, however. See Woodward v. Barbur, 59 Ore. 70 (1911).

⁵⁰ Laws, 1907, Ch. 226, Sec. 3, p. 398Google Scholar.

⁵¹ Laws, 1923, Ch. 247, Secs. 1–5, p. 346Google Scholar.

⁵² Ibid., Sec. 8.

⁵³ Laws, 1933, Ch. 436, Sec. 1, p. 789Google Scholar.

⁵⁴ Laws, 1935, Ch. 41, Secs. 1–2, p. 52Google Scholar.

⁵⁵ A. F. Smith, loc. cit., pp. 441–444, has indicated that the same San Francisco professional petition-circulating organization is frequently employed on both sides of a controversial issue. In view of Oregon's statutory prohibition of such activity, documentary evidence of “petition-hawking” is very difficult, if not impossible, to gather

⁵⁶ The Washington legislature, in 1915, attempted to change that state's method of circulating so as to require voters to affix their signatures in offices of registration officials, which offices would be open from 6–9 p.m. during a 90 day period. This and several other anti-people's power measures were subjected to the obligatory referendum and defeated overwhelmingly. See Johnson, loc. cit., pp. 36–37.

⁵⁷ Key and Crouch, op. cit., p. 572. They add, however, that direct legislation has added cost and inconvenience to their activities.

⁵⁸ Consult the article by Johnson, loc. cit., for an interesting analysis of the nature of the groups which used direct legislation up to 1932 and those which have used it since 1934.

⁵⁹ The situation in Oregon has improved in jecent years. Of thirty statutes submitted to the electorate in general elections between 1938–1948, the average percentage of those going to the polls who voted on the winning side was 53.9%. For 27 constitutional amendments considered over the same period the average was 44.1%. Most of the issues were determined decisively, however, with the average vote on the winning side for those who participated being 64% in the case of statutes as compared with 57.3% in the case of constitutional amendments.

⁶⁰ Lowell, op. cit., p. 222.

⁶¹ Beard and Schultz, op. cit., p. 41.

⁶² See, for example, Schumacker, loc. cit., p. 257. The type of minority legislating and constitutional amending made possible under Oregon's system can be compared to the type of minority legislation which takes place every day in those state legislatures where the heavily populated areas of the state are under-represented. Very often the same persons who denounce direct legislation on the grounds that it permits minorities to determine policy are the ones who are violently opposed to any plan to reapportion the state legislature on the basis of population. Unfortunately, this obvious inconsistency frequently goes unobserved.

⁶³ Beard and Schultz, op. cit., pp. 37–38.

⁶⁴ Professor Johnson, loc. cit., p. 49, has suggested that “If indifferent and uninformed non voters are ignored, then no initiated measure ever passes unless a majority favors it and no referred bill is ever defeated unless a majority votes against it. If we accept this reasoning, the bogey of minority rule evaporates.” Johnson offers a safeguard, however, in suggesting that no initiative measure be made effective unless passed by 40% of those participating in the election and that no bill referred by petition be defeated unless it receives 45% of the total vote cast. Similar provisions in Oregon's constitution would have resulted in the defeat of only two popular measures out of the sixty-one considered in the ten years of 1938–1948.

⁶⁵ Walker, op. cit., p. 448.

⁶⁶ Lowell, op. cit., p. 218. Cf. Mathews, op. cit., p. 200, who felt that “… there is no great need for sharp distinction between constitutions and statutes in the states since fundamental rights are adequately protected by the Constitution of the United States.”

⁶⁷ Holcombe, A. N., State Government in the United States (New York, 1916), p. 425Google Scholar, writing a few years following the inauguration of direct legislation, made the following significant statement: “In fact the original distinction between constitutional and statutory law has already been so far impaired by the insertion of ordinary legislation in the state constitutions that the preservation of the distinction in its present form is of doubtful utility.”

⁶⁸ Munro, op. cit., p. 41, who was critical of direct legislation, has said: “Of course, it is not at all certain that this outcome would be very undesirable in America. In England there has never been any distinction between constitutional and ordinary laws, yet the liberty of the individual has not suffered serious impairment on that account.” European experience has not been significantly different from that in the United States, although neither the initiative nor the referendum processes have been so widely used. See in this Review, Rappard, W. E., “The Initiative and the Referendum in Switzerland”, Vol. 6, pp. 345–366 (August, 1912)Google Scholar and Greene, L. S., “Direct Legislation in the German Länder, 1919–32”, Vol. 27, pp. 445–454 (June, 1933)Google Scholar. See also Rappard, W. E., The Government of Switzerland (New York, 1936), pp. 70 ffGoogle Scholar. and Vermeil, Edmond, La Constitution de Weimar (London, 1923), pp. 138–139Google Scholar.

⁶⁹ Bentley, Arthur F., The Process of Government (Bloomington, 1949)Google Scholar.