This is something I’ve wondered since high school. And there is a good reason for that. In high school we learned about Initiative (submitting a proposed law by the people), Referendum (legislature doing that) and Recall (recalling a public official).
It seems these 3 political tools came about around the turn of the last century, in the USA. It was part of an interesting time in American politics, referred to as the “Progressive Era”.
Anyways, these three things only happen at the state level. And I have to wonder why. After all, our First Amendment seems to allude to at least one or two of these things:
(Emphasis mine.)
To me at least, that suggests Initiative. Get it?
Anyways, why don’t we have these three things at the federal level? Has it ever been attempted, is my next question? And would it require a whole new constitutional amendment (although note my point above w/the First Amendment)?
[QUOTE=Constitution Article I. Section 1]
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
[/QUOTE]
I would certainly think that an amendment would be necessary for a federal initiative process. Further, I don’t see the equivalence between petitioning the government and enacting positive law through ballot referenda.
The reasons it didn’t happen come from a complex mix of politics, cultures, and influences. So expect a lot of broad generalizations to get an answer down to a couple short paragraphs.
The Progressives were reformers who basically wanted to reform everything. We think today that they had a remarkable number of good ideas but at the time they seemed often to be scary radicals. The entrenched interests they wanted to reform were hugely powerful, and the only reason the progressives won as many battles as they did was that the abuses in every industry were so overwhelming, blatant, and horrifying that large enough segments of the population agreed that something needed to be done.
This also applied to politics. Bossism ran rampant in most cities and most state legislatures. The muckrakers pulled back the covers of the corruption. Various groups of reformers at various times in various places managed to win elections.
What doesn’t get said as often is that all the reformers failed almost all of the time. They kept losing the next election and didn’t get very much done while they were in office. One path around this was to attempt to give the public more direct powers. The initiative, referendum, and recall were tools in this battle. But they weren’t very good tools and they were sparsely implemented. Only a handful of people were ever subject to recall back then. It wasn’t until much later when powerful interests backed by big money realized that they could manipulate the progressive tools easier than they could manipulate legislatures, exactly the opposite of the original intentions.
Remember that the progressives were always a minority. The Progressive Party gained power in only a few local areas. Most of the progressive legislation that got passed came from the progressive minorities in the Republican and Democratic Parties gaining temporary advantages. The recall was passed at the state level in fewer than 20 states, although a few more allow local recalls, and the initiative and referendum are at about the same number. Most of the states that did use these tools in the early 20th century were midwestern and western states where bossism and the sheer weight of history was not as entrenched.
All that is doubly true at the federal level. Progressives never had real majorities in Congress. The Solid South was deeply conservative and run by an oligarchy who would never share power; that put an unscalable obstacle in the path of reformers who would have had to get a supermajority of the remaining states to get their way. This was never remotely possible. The other parts of the Progressive agenda weren’t as threatening to them directly so a working supermajority could be formed during the Depression to pass New Deal legislation, much of it progressive in origin, but Congress wasn’t going to vote to give its core powers away.
The right to petition is not even remotely comparable to the power of initiative. We can petition Congress, but we cannot force it to act on our petitions, nor go over its ahead to the people if it declines to act. In initiative states, citizens can do both of those things.
Yes, federal initiative or referendum would require a constitutional amendment. It’s more difficult to amend the federal constitution than most state constitutions, since federal amendment requires supermajority concurrence from both Congress and state legislatures. Any initiative proposal would be a nonstarter in small states, since it would render meaningless their over-representation in the Senate.
