BY ANN LOUSIN Associate professor at John Marshall Law School, Chicago, she served on the staffs of the General Assembly and the Constitutional Convention.

NO NONONO Should Illinois adopt the open initiative?

LEGISLATION enacted by a popular initiative and referendum as an alternative to legislation enacted by a General Assembly is an idea whose time has come — and gone. During the Progressive movement in the early 1900's, reformers suggested the "initiative, referendum and recall" method of improving government. The first two are the method of proposing and adopting legislation outlined in the "Illinois Initiative," the latest reform proposed by the Coalition for Political Honesty. The "recall" is a system of removing public officials whose conduct does not please the people.

The Illinois Initiative is a proposed constitutional amendment allowing voters to bypass the legislative process by drafting and proposing a law (an initiative) and then by adopting the law at a popular election (a referendum). While the concept has a certain appeal and it is difficult for one who believes in democracy to oppose the idea in public, I believe that the Illinois Initiative is shortsighted and would hurt, not improve, the laws of Illinois and frustrate our citizens even more than they are now.

Chiefly as a result of the Progressive movement's efforts, one, two or all of these reforms were incorporated into several state constitutions. Most of the states adopting them were relatively new and had little of the tradition of public service often found in the original colonies. Of the original 13 states, only Massachusetts has the initiative and referendum for legislation. Geographically, 17 of the 21 states adopting the initiative and referendum are west of the Mississippi River. Chronologically, all of them adopted it by 1918 except for Alaska, which adopted a narrowly drawn initiative in its first state constitution in 1959.

Constitutional Convention
The 1969-70 Illinois Constitutional Convention considered a proposal to allow a limited initiative for legislation, apparently based upon the Alaska model. However, the convention chose to improve the lawmaking process of the General Assembly rather than allow the alternative of a popular initiative and referendum.

The chief result of an initiative and referendum procedure for enacting laws would be to weaken the chief instrument of the legislative process, the General Assembly. Not even the most ardent proponent of the initiative and referendum suggests that it should be used as a general substitute for the legislature. Instead, proponents argue, it would be used only when the legislature is unwilling to take an action which a significant percentage of the electorate wants taken.

So when would the initiative be used? The General Assembly is one of the three integral branches of state government: the legislative, the executive and the judicial. According to American tradition, the legislative is the one branch which represents the voters. Its members are always elected and are elected more frequently than those of the executive and judicial branches, some of whose members are not even elected. The purpose is to insure that the legislators are as close to the will of the electors as possible. Indeed, one school of thought holds that legislators are merely surrogates for the citizenry, whose time does not permit their legislating directly for themselves.

During the heyday of the initiative and referendum and other legislative reforms, state legislators were notoriously corrupt and elected from disproportionately drawn districts. Few states allowed women to vote for their legislators, and many states severely restricted the exercise of the franchise by blacks, the foreign-born and the poor through harsh application of literacy tests and poll taxes. While no one would insist that legislatures, or any other institutions of man, are perfect, there is no doubt that the state legislatures as a group have improved enormously since 1900. There are several reasons why.

The better legislature
First, the reapportionment cases beginning with Baker v. Carr in 1962 (369 U.S. 186 (1962)) have insured that each elector's vote is as nearly equal to every other elector's vote as is possible. Insofar as is possible, each faction of our society has the opportunity to be represented by legislators who share their views.

Second, both the Illinois Constitution (Article XIII, section 2) and a state statute (Illinois Revised Statutes, Chap-

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ter 127, section 604A-10\ff) require that legislators and most public officers file public statements disclosing their significant financial holdings. These statements cover holdings of the officer and his family. Unfortunately, very few constituents, newspapermen and even political opponents bother to inspect these statements (see Illinois Issues, January 1977). However, anyone who wishes to see if his legislator is voting his own pocketbook may do so.

Third, a statute passed by the Illinois General Assembly requires disclosure of campaign contributions to public officials. No one denies the significance of money in American politics at all levels. However, in Illinois significant contributions are made public and several candidates disclose every single contributor. Again, if a constituent bothers to look, he can discover who has supported his legislator.

The legislative process
In my four years on the staff of the Illinois House, I saw debates and votes on thousands of bills. Relatively few of them were important enough to be the subject of "special-interest lobbying" and "interest-group pressure." Often bills whipped through committee hearings without a murmur from any interest group — special or general, Those bills important enough to attract the attention of lobbyists usually had one group strongly for the bill and one strongly against it. Legislators heard from both sides, sometimes until the groups canceled each other out, It was rare indeed that an important bill had all the lobbyists on one side.

The plain truth is that bills pass or fail. for many different reasons. Sometime' legislators are swayed by their opinion of the chief sponsor of the bill. The sheer volume of bills makes it impossible to study each bill thoroughly. Consequently, legislators often vote with a legislator whose expertise in the field they trust or whose political views jibe with their own. Sometimes a legislator will trade votes for other legislators' bills to obtain votes for his own. These considerations are, in the main, far more important it the legislative process than any "raw power" wielded by special interests.

Another important consideration of the legislative process is that ideas an often proposed before their time has come. A bill may have to be introduced

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in several sessions before it finally gains acceptance, both in public opinion and in the legislature. For example, the bill to enable municipalities to pass fair housing ordinances was introduced several times in the early 1960's before it passed. First it passed in the House committee; then it passed the House; then it passed the Senate committee; and finally the full Senate. Each year the proponents gained momentum for the bill, both by lobbying (yes, lobbying) legislators directly and by persuading constituents to prod their legislators into supporting the bill.

The initiative problems
California has used the initiative more extensively than any state. Virtually all the issues proposed in California are emotionally charged "hot potatoes." Probably the groups ardently supporting the initiative could not muster efficient support in the legislature and tried to carry their case to the electorate. Since the electorate usually did not agree with the proponents for a change in legislation, the California legislature apparently really did reflect the mood of the public after all. Every year Californians are faced with 3-10 ballot propositions, many of them legislative initiatives. And every year the number of people voting on the propositions is depressingly smaller than those voting for public officials to make the laws.

Moreover, each initiative removed pressure from the legislature, which could tell each group of proponents that it was not convinced "the people" wanted the change and suggest the proponents test public opinion by collecting the signatures needed for an initiative. Of course, once the proponents acquired a list of signatures favoring a proposition, they also had a preselected mailing list for anyone interested in future contact with voters favoring that viewpoint. Anyone who has run a modern political campaign knows how valuable a pre-selected mailing list is to a candidate who wants to save postage and energy on compiling a list of voters who are most likely to favor him. Indeed, it is not uncommon for candidates to share their lists with running mates and other candidates they wish to help.

I think this is exactly what would happen in Illinois. For instance, some people have suggest that the U.S. Equal Rights Amendment (ERA) be submitted to the public at a referendum, obviously as a means of removing the controversy from the legislature. It would be a great temptation for legislators who do not want to displease a significant part of their constituency to maintain that a controversy be "put before the people." What could be wrong with such direct democracy?

Plenty. Most important legislative issues, especially emotional ones, are too complex to be dealt with on an "either-or" basis. Abortion is not simply a question of "women's rights" v. "legalized murder," and it is unwise to change the penalties for using marijuana without considering their relationship to selling marijuana and using other drugs. When a single issue is submitted to referendum, the public cannot amend and shape the statute as the legislature can do. In North Dakota a "referendum king" has capitalized upon the simple yes-or-no format of the referendum and engineered the placement of several tax propositions before the electorate. Faced with the question whether they want to pay more taxes, most people vote no, thus dooming many public services. If they were asked, instead, if

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The initiative procedure would actually make the legislature a less viable branch of government and less able to fulfill its role

they wanted those services, most would vote yes. By separating the issue of who wants to pay for services from that of who wants to have the services the referendum presents a distorted, false choice to the citizens.

Illusion of power
The text of the Illinois Initiative shows how shortsighted the measure is. Apart from its clumsy style, the proposed constitutional amendment creates a marvelous device for a minority of legislators to block any further legislation in an area in which a law has been adopted by initiative and referendum.

This occurs because Article IV, Section 8(d), paragraph three of the Illinois Constitution requires a bill passed by the legislature to set forth completely all sections it is amending in another statute, while the Illinois Initiative, Section 16, would require a two-thirds vote in each house of the General Assembly to pass a bill amending or repealing a statute adopted by initiative and referendum. If the electorate adopts a statute on limits on real estate taxes, for example, it is almost certain that any future bill on real estate tax limits will be required to amend the initiative statute. This is true even if the new bill does not abrogate the effect or intent of the initiated statute. It may, in fact, even improve the statute and reduce limits further.

Nonetheless, the bill would require a two-thirds vote in each house. In other words, 20 of the 59 senators could block the bill. This gives 20 senators great leverage, since they could hold the bill "hostage" in exchange for amendments which they wanted. Anyone who thinks an extraordinary majority is easy to obtain ought to remember the fight to obtain the three-fifths vote needed to pass ERA in recent legislative sessions.

I doubt that the Coalition for Political Honesty, in all its zeal to reform the legislature, has truly considered these ramifications of their proposal. As I said earlier, it is unpopular to oppose a proposition purporting to "give power to the people." However, the Illinois Initiative would only give them the illusion of power. The initiative and referendum procedure would actually make the legislature a less representative branch of government and would result in no better laws than we have now.

18 / October 1977 / Illinois Issues