The People Commentary
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8 The People

8.1 Requisitioning

Section 8.1 provides for the people itself to decide directly what level of taxation it wants to incur. This can be done by Dutch auction due to the simplified nature of confederate financing as an annual per capita charge on the states. 

Experience from Switzerland and the United States suggests that constitutional amendments restraining legislatures in their raising of revenues enjoy widespread support, and can be expected to enter the Constitution if the people has the power of the constitutional initiative. Given that such restraints are to enter the Constitution anyhow, the question is what form they ought to have.

The proposed section has the advantage of simplicity, both from the point of view of the electorate and from the point of view of their representatives. It is also highly flexible, allowing the raising and lowering of taxes depending on popular opinion.

In addition the proposed section uncouples aggregate taxation from spending on particular projects. This provides an additional hurdle for spending and reduces overall taxation.

If there is an emergency need due to war or crisis, the Congress is empowered to raise emergency funds.

The annual charge may be reset at any time, but has to be reset at least every 5 years.

8.2 The Initiative

Section 8.2 regulates the people's power to propose and enact legislation of any kind except constitutional amendments which are separately regulated in section 8.6, cfr. also section 1.9.

Most of this section follows the standard pattern for initiatives, with the following exceptions:

  • For reasons of practicality, Initiatives may be lumped together with elections so that the voters don't have to go to the polling places several times a year. Subsection 8.2.3 taken together with section 10.1, provides that Initiatives has to be decided within 465 days (100 days + 1 year).

  • Decisions require a double majority (majority of the popular votes as well as a majority of the states). This ensures that confederate legislation enjoys broad support.

Legislation enacted directly by the voters may be amended after 5 years (see subsection 8.8.3).

Experience from the U.S. suggests that legislatures has to be prevented from nullifying the decisions of the people by repealing or amending statutes enacted by the initiative. On the other hand, if initiative legislation is absolutely protected, it is unable to adopt to changing circumstances. 

In California direct legislation may only be changed by new direct legislation. This has partly led to obsolete legislation remaining on the books, and partly to the voters being snowed down by proposals for minor amendments. 

The 5 year limit is a compromise between these two opposing considerations. After 5 years, at least there will have been a renewal of the House of Representatives and in the presidency, possibly also in the Senate. This limits, but does not eliminate, the first consideration.

8.3 The Referendum

Section 8.3 regulates the people's power to approve or reject  any bill or act of Congress. This section follows the usual pattern for petition referendums with the following exception (see also comments on the Initiative):

The referendum, as defined in this document, does not imply a vote on whether to veto an act of Congress. Rather it implies a vote on the proposed legislation itself. When reading this section it should be kept in mind that the People is the ultimate legislature ref. section 6.1, and that the powers granted Congress are limited powers. Thus a successful referendum petition transfers the decision about whether to approve or reject legislation from the Congress to the People. This means that legislation not expressly approved by the people is in fact rejected and does not become law (subsection 8.3.6). See also section 10.5 Sunrise clause which regulates the coming into force of legislation.

Another principal reason for this approach is, however, to avoid the possible confusion where those in favor of a proposal would vote No at the polls and vice versa. See also section 8.8.3.

8.4   The Recall

Section 8.4 regulates the people's power to end the term of any elected public official. The recall of elected officials is new compared with either the U.S. or Swiss constitutions, but can be found in state constitutions in the U.S.. It provides a safety valve short of removal by impeachment. Additionally, it puts this power in the hands of the people instead of elected officials as is the case with impeachment.

Recall is the most recent invention in the field of direct democracy, following the introduction of the referendum and the initiative. It is rarely used, but this may not reflect its importance. After all, the instrument of impeachment is even less used, but its existence and the implication that it might be used played a crucial role in forcing the resignation of former U.S. President Richard Nixon. 

The lesser use of the recall may also be related to the fact that the qualification requirements for recalls are usually much stricter than for the initiative or the referendum. 

By loosening the qualification requirements for recall, longer terms for elected officials might become increasingly attractive and possible as the recall takes on more and more the character of being an ordinary and acceptable way of making a change of officials. (See also Continuous Voting). 

How or whether to use the recall is, however, a decision best left to the people itself through popular resetting of the qualification requirements (section 8.5).

The proposed recall provision is structured to force a new election. Some state provisions in the U.S. use a two-step procedure. First the recall itself, and then if successful, a new election. In my view this is unnecessarily cumbersome.

To ensure multiple candidates, candidates at the prior election qualify immediately. Qualification requirements for other candidates will depend on legislation.

8.5   Qualifying Initiatives, Referendums and Recalls

Section 8.5 regulates the procedure for setting the number of signatures (voters) required to qualify Initiatives, Referendums and Recalls. It has no equivalent in other constitutions.

One of the methods employed by legislatures to get rid of the perceived impertinent intrusion of the voters, has been to raise the number of signatures required to an unrealistically high number. Instead of specifying a number or percentage that may later be challenged and changed, the proposed model relies on a self-adjusting process whereby this issue may be decided by the voters themselves from time to time.

If the people feels that the number of Initiatives, Referendums or Recalls is inadequate, they get the chance of reducing the qualifying number of petitioners. If on the other hand, the number of Initiatives, Referendums or Recalls is excessive, qualifying requirements may be adjusted upwards.

One of the objections to direct legislation has been that the people quickly becomes swamped by irrelevant proposals. On the other hand, if the hurdle is too high, important issues may not get voted on. The proposed procedure alleviates these concerns by leaving the decision directly with the people itself.

8.6 The Constitutional Initiative

Section 8.6 regulates the people's power to propose and enact amendments to Part two of the Constitution. This section corresponds to the Swiss Art. 121, and to numerous equivalent amending sections in American state constitutions.

The Constitutional Initiative has more stringent requirements than the statutory initiative. This is to encourage proper statutory issues to be decided by statute and discourage the Swiss practice of putting everything into the Constitution where it is less amenable to changing circumstances.

Constitutional amendments to part two of the Constitution are decided by a 55% majority of the popular votes and a 55% majority of state votes. This gives the constitutional amendment a broader basis than the statute, but is less stringent than amendments to part one of the Constitution.

8.7 Confederate and state initiated direct legislation

Section 8.7 gives confederate institutions or state legislatures the right to initiate direct legislation. Such initiatives may be in direct response to popular initiatives.

Both in Switzerland and in the U.S.A. it is common for legislatures to present their own competing and often moderated versions of voter initiatives. Quite often these "official" alternatives win out either because they are better drafted or because they are less extreme.

8.8 Effects of direct legislation

As the people is the ultimate legislature it does not make sense to subject direct legislation to the President's veto powers. The interests that the President is supposed to take into account (the citizens in their collective capacity) are in this particular situation, themselves the direct participants in the legislative process.

The rest of this section concerns practical issues related to the amendment or reenactment of legislation. On the one hand society changes and legislation ought to be amendable so as to reflect these changes, on the other hand if direct legislation is infinitely amendable by Congress, Congress may frustrate the will of the voters. The proposed subsections 8.8.2 and 8.8.3 seek a compromise between these opposing concerns by introducing a "cooling off" period of 5 years during which Congress may not reverse direct legislation. One of the concerns regulating the length of this "cooling off" period is that it ought to be longer than at least one of the houses of Congress. In other words, there ought to be at least 1 intervening election before Congress reviews any direct legislation.

 

Revised: 2004-07-02


Copyright 1991-2003 John F. Knutsen

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