UNPOPULAR GOVERNMENT
  IN THE UNITED STATES




THE UNIVERSITY OF CHICAGO PRESS CHICAGO, ILLINOIS

Agents


  THE CAMBRIDGE UNIVERSITY PRESS
  LONDON AND EDINBURGH

  THE MARUZEN-KABUSHIKI-KAISHA
  TOKYO, OSAKA, KYOTO

  KARL W. HIERSEMANN
  LEIPZIG

  THE BAKER & TAYLOR COMPANY
  NEW YORK

  [Illustration:

  MAP

  _showing Election Districts,
  in which an Elector of Winnetka,
  Illinois votes_

  (_except State of Illinois (United States)_)

  Compiled by
  _ALBERT M KALES_

  See pages 26-29]




  Unpopular Government
  in the United States

  _By_
  ALBERT M. KALES
  _Professor of Law in Northwestern University_


  [Illustration]


  THE UNIVERSITY OF CHICAGO PRESS
  CHICAGO, ILLINOIS




  COPYRIGHT 1914 BY
  THE UNIVERSITY OF CHICAGO

  All Rights Reserved

  Published February 1914
  Second Impression February 1915


  Composed and Printed By
  The University of Chicago Press
  Chicago, Illinois, U.S.A.




TABLE OF CONTENTS


                                                          PAGE

  INTRODUCTION                                               1


  PART I

  THE RISE OF THE POLITOCRATS


  CHAPTER I

  UNPOPULAR GOVERNMENT--DEFINED--HOW FORMERLY
  MAINTAINED--PRECAUTIONS TAKEN TO AVOID IT                  7


  CHAPTER II

  UNPOPULAR GOVERNMENT--HOW ESTABLISHED IN THE UNITED
  STATES IN SPITE OF THE PRECAUTIONS TO PREVENT IT          21

  SEC. 1. Introductory                                      21

  SEC. 2. The Burden upon the Electorate--The
  Inverted Pyramid of Governmental and
  Electoral Districts--The Offices to Be
  Filled and the Number of Electors in Each District        26

  SEC. 3. The Resulting Political Ignorance of the
  Voter and His Consequent Disfranchisement                 39

  SEC. 4. The Power of the Electorate Passes to
  Those Who Take Advantage of Its
  Ignorance to Direct It How to Vote                        48

  SEC. 5. The Power of Government Passes into the
  Hands of Those Who Are Able to Direct
  the Majority of the Politically Ignorant
  How to Vote. They Constitute an
  Extra-legal but None the Less Real Government             61

  SEC. 6. The Extra-legal Government Uses Its
  Power Selfishly to Maintain Itself and to
  Benefit Those Who Have Organized and Supported It         67

  SEC. 7. The Extra-legal Government Is Able to
  Maintain Itself in the Face of Popular Disapproval        73


  PART II

  THE WAR ON POLITOCRACY


  CHAPTER III

  DISSIPATION OF POLITICAL IGNORANCE BY SELF-TAUGHT
  POLITICAL EDUCATION                                       91


  CHAPTER IV

  THE AUSTRALIAN BALLOT AND CIVIL-SERVICE ACTS              95


  CHAPTER V

  ALTRUISTIC EFFORTS TO ENLIGHTEN THE VOTER                 99


  CHAPTER VI

  ABOLITION OF THE PARTY CIRCLE AND PARTY COLUMN           104


  CHAPTER VII

  THE PRIMARIES                                            107


  CHAPTER VIII

  THE INITIATIVE AND THE REFERENDUM                        118


  CHAPTER IX

  THE RECALL                                               122


  CHAPTER X

  INDEPENDENT MOVEMENTS AND THE NEW PARTY                  128


  CHAPTER XI

  THE SECURITY OF EXTRA-LEGAL UNPOPULAR GOVERNMENT
  BY POLITOCRATS IN THE UNITED STATES                      133


  CHAPTER XII

  THE MENACE TO UNPOPULAR GOVERNMENT OF THE
  COMMISSION FORM OF GOVERNMENT FOR SMALLER CITIES         139


  CHAPTER XIII

  THE PRINCIPLES OF THE COMMISSION FORM OF GOVERNMENT
  APPLIED TO THE LARGER CITIES                             162


  CHAPTER XIV

  THE PRINCIPLES OF THE COMMISSION FORM OF GOVERNMENT
  APPLIED TO THE STATE                                     166


  CHAPTER XV

  CONTEMPORARY PLANS LOOKING TOWARD THE UNION
  OF THE EXECUTIVE AND LEGISLATIVE POWERS OF
  STATE GOVERNMENTS                                        181


  CHAPTER XVI

  THE SECOND-CHAMBER PROBLEM                               193


  CHAPTER XVII

  METHODS OF SELECTING AND RETIRING JUDGES                 225


  CHAPTER XVIII

  CHANGES IN THE PLAN OF THE FEDERAL GOVERNMENT            252


  CHAPTER XIX

  CONCLUSION                                               262




INTRODUCTION


The plan for state and municipal governments generally accepted in
the United States in the middle period of the nineteenth century gave
great satisfaction in the provincial and frontier communities where
it was adopted and which then composed the principal part of the
United States. In many nooks and corners of the country today we have
relics of this provincial and frontier society. In such districts this
plan for state and municipal governments is entirely satisfactory
in practice. To depart from it would be unwise, for the reason that
in matters of government that which is and which is not positively
objectionable should be let alone. Frequently men of talent and power,
whose youth was spent in the provincial and frontier era of our social
and political development, still find conditions about them not so
much changed. To them the mid-nineteenth-century plan and its practice
are entirely satisfactory. Any criticism of it would at once meet
with a vigorous and, no doubt, from the point of view of provincial
and frontier conditions, a complete defense. To the inhabitants of
those parts of the United States where such provincial and frontier
conditions still exist the following essay is not addressed.

So long as the more simple and primitive conditions of society which
obtained in the first half of the nineteenth century were all but
universal in the United States, any criticism of the plan of state
and municipal government which prevailed was a purely academic
exercise. Even when, in some districts, conditions had changed and
great cities had arisen with enormous wealth and population, to which
the mid-nineteenth-century plan of government did not seem to fit in
practice, the majority were still so far satisfied as to make any
criticism of that plan of merely speculative value. But in the second
decade of the twentieth century the provincial and frontier type of
society will be found to embrace a distinct minority of the population
of the country. The social conditions presented by a large population
in a small area, with a highly organized and differentiated social
structure, have become common to a large portion of the population of
the entire country. Whether the application of a mid-nineteenth-century
plan of government to these conditions is satisfactory is, therefore,
no longer an academic or speculative question. Its due consideration
has perhaps rather become to the last degree vital to the life of the
nation. To those who are face to face with this problem the following
essay is addressed.




PART I

THE RISE OF THE POLITOCRATS




CHAPTER I

 UNPOPULAR GOVERNMENT--DEFINED--HOW FORMERLY MAINTAINED--PRECAUTIONS
 TAKEN TO AVOID IT


Unpopular government is, and indeed always has been, a government of
the few, by the few, and for the few, at the expense and against the
wish of the many.

In a former era unpopular government was achieved and maintained
with simple directness. All governmental power was, by a monarchical
or oligarchical plan, openly placed in the hands of the few. Human
characteristics insured the selfish use of that power. The maintenance
of such selfish use of governmental power against the wish of the
majority was accomplished by denying any legal opportunity to the
majority to express itself, and by the perpetuation of power in the
hands of the few by inheritance or appointment.

The makers of our mid-nineteenth-century state and municipal
governments undertook to free this land from unpopular government.
If all governments must be tyrannical from the point of view of some,
they preferred the tyranny of the majority to the tyranny of the
minority. Their aim was to establish and maintain a government “of
the people, by the people, and for the people,” as distinguished from
a government of the few, by the few, and for the few, at the expense
of the many and against their wish. They could not, however, change
human characteristics. The tendency, therefore, to use power selfishly
continued. They did endeavor to prevent the concentration of power in
the hands of the few by splitting the power of government up among
many separate and distinct offices and limiting the power which any
one officeholder might exercise. They sought to make impossible the
retention of power in the face of popular disapproval by requiring
all offices of importance in the government to be filled by popular
election and the elections to be held frequently. For the greater part
of a century these ways and means of heading off unpopular government
have been constantly employed in the development of our state and
municipal governments. The belief of the people in popular government
has become a belief in these two means of obtaining it. In popular
estimation the means have become the end. Inevitably these expedients
for securing immunity from unpopular government have been pressed to
great extremes.

The application of the principle that governmental power must be
kept out of the hands of the few is responsible for that fundamental
characteristic of American constitutions known as the separation of
powers among the three departments of government. The entire power
of the government is exercised by the executive, the legislative,
and the judicial departments. None is allowed to perform any of the
functions which belong to either of the others. If it does so, its
action is unconstitutional and void. Each department is, therefore,
supreme and independent in its own field. This is the beginning of
decentralization. In the distribution of powers, each department is
designed to be a check upon the others. The legislature, being the
most powerful by reason of its control over the making of the laws and
appropriations, is naturally a substantial check upon the executive
and judicial departments. Our constitution-makers have, therefore,
been particular to devise checks upon the legislature by the other
two departments. The executive is given a wide veto power upon all
legislation, although the veto may be overridden by a two-thirds
vote of the legislature. The courts in their power to declare laws
unconstitutional are given, potentially at least, an effective
veto power upon legislation. The scope of it is narrower than the
executive veto, but on the other hand the veto of the courts cannot
be overridden by any action of the legislature. The actual operation
of these checks and balances, coupled with the complete separation
of powers, has resulted in irritation and bickering between the
departments. The trouble between the executive and the legislative
departments especially is frequent and acute. The executive is the
most conspicuous single official. He is elected upon a platform of
pledges for legislation. He seeks to redeem those pledges by promoting
the introduction of bills and pushing them through the legislature.
The legislature feels hostile toward the executive for attempting to
coerce its action. The executive loses patience with the legislature
for not redeeming the pledges of the executive to the electorate.
The legislature is frequently hostile toward the Supreme Court for
declaring laws unconstitutional. The executive also comes in conflict
with the judiciary by reason of the fact that the latter upsets
legislation which the executive has sometimes been able to secure only
by trading for votes important appointments which cannot be recalled.
The executive and legislative departments are likely to feel that
the Supreme Court has gone beyond its judicial power in declaring
laws unconstitutional. The result is that each of the departments of
government fails to work in harmony with the others. Each tends to
retire to its own constitutional sphere and there spend considerable
time in doing what it pleases, regardless of the other departments,
and from time to time blocking and hampering them. In this way the
least progress is made with the important business of legislation and
the functioning of the executive and the judicial departments.

Our constitution-makers, however, went even farther in preventing the
concentration of the powers of government. They split up and dissipated
the powers of each department among as many different offices as
possible. They split up the legislative power between two chambers,
each operating as a check upon the other. In Illinois they went a
step farther and split up the power of the lower house by providing
a method whereby every third member might be the representative of
a minority party. A general check upon the power of the legislature
is frequently found in the provision that it can meet for general
legislative business only every two years, or that it can remain
in session for such general legislative purposes only a specified
number of days. The result is that the legislative power is not only
hampered from without by executive and judicial vetoes and the
limited time in which to act, but it is divided within among bodies
which are more or less antagonistic to each other. The executive
power of the state, if lodged wholly in the governor, acting through
his appointees, might still have been a very extensive power, but it
would have been too much power in one man to meet the approval of our
constitution-makers. Hence the executive power has been split up among
several independently elected executive officers, viz., the governor,
the attorney-general, the secretary of state, the state treasurer,
the state auditor, the state superintendent of public instruction,
and the trustees of the state university. Each one of these officers
is independent in the discharge of his statutory or constitutional
duties. So far as they divide executive power among them, they take
power from the chief executive. In the judicial department we find
the same pains to give out the minimum amount of power to any single
judge or group of judges. We find usually several courts of original
jurisdiction, each with power to handle limited and defined classes
of cases. There are justices of the peace, municipal courts, probate
courts, juvenile courts, criminal courts, and circuit courts, the
last having the most general jurisdiction. Then follow a succession
of appellate tribunals, each with a limited jurisdiction to hear
appeals. The trial judges have had their power restricted by being
forbidden to exercise any control over juries by oral instructions
upon the law. They have no power to give any instructions upon the
evidence. They have been reduced in jury trials to the position of
umpires for forensic duels between lawyers. In the appellate tribunals
they are usually forbidden to review questions of fact. Their function
is confined very narrowly to the affirming of the decision below, or
reversing it without remanding it, or reversing and remanding it for
a new hearing. They are denied any power of hearing further evidence
or making a proper order so as to settle the litigation if possible
in the appellate tribunal. The work of appellate courts consists to
so large an extent of opinion writing and closet work that the office
is inconspicuous and not very attractive. In most states the judges
are elected. Each one is independent in the exercise of the duties of
his statutory jurisdiction. Even the clerks of the various separate
courts are in many instances elected. They are absolutely independent
of the judiciary or of any other officer of the legal government in the
exercise of their statutory duties. There is no administrative head of
the court with large powers over the direction of the work of other
judges and the clerical force and a corresponding responsibility for
the conduct of judicial business. In the everyday work of his office
the judge, under the present plan of government, is amenable to no
authority except his own conscience and a fear of unfavorable public
comment upon his actions.

In our municipal governments the legislative power is usually exercised
by a single chamber, though there are instances of double chambers in
the city council. In the less important municipal governments, such
as counties, villages, and special commissions, we frequently find a
part of the executive power vested in the municipal legislative body
or in some member of it. Thus, in county governments we frequently
find the chief executive the presiding and most influential member of
the board of commissioners. In the cities, however, there is usually
a complete separation of the legislative and executive functions,
the legislative power being committed to a council and the executive
functions to a mayor and other subordinate officers. There is a
general tendency toward the splitting-up of the executive power among
different executive officers who are elected and are independent of any
superior authority in the performance of their statutory duties. A city
government will usually distribute the executive power among a mayor, a
treasurer, a comptroller, and a clerk. The executive power of a county
government will be split up among a president of the county board, a
county clerk, a sheriff, a county treasurer, a county superintendent of
schools, members of the board of assessors, and the board of review.
A great deal of unobserved splitting-up of executive and legislative
functions in municipal governments has been accomplished by the
creating of several municipal corporations with special functions
operating in the same territory. For instance, where a city and county
government cover the same territory we have two municipal legislatures
operating in the same territory, and also two sets of executive
officers. Thus is the legislative and executive power necessary for a
given district split in half. If a drainage district, a park district,
a school district, a public library district, each controlled by
commissioners or trustees with executive and legislative power, be
added, all operating in the same territory with a city government and
a county government, we have still further split up the municipal
executive and legislative power. Such situations are common enough.

The principle of decentralization has even been applied so as to
prevent the assistance to the government which might be derived from
experts in various lines. The place where the largest number and
variety of experts in the most departments of learning can be found
is the largest city of the state. If that city happens to be one of
the great cities of the country and of the world, it will also be an
important center of intellectual activity of all sorts. It will very
likely have in or near it one or more great universities. Yet in such
states we are likely to find that an ancient fear of mob influence over
legislation has placed the state capital at some distant geographical
center which is not even a transportation center. Not infrequently the
state university will be found at some point more or less inaccessible
to both the largest city of the state and the capital. These are
arrangements which tend directly to the separation of the government
from the aid of expert knowledge and the best intelligence of the
state.[1]

Members of the state and municipal legislatures are, of course,
elective. Moreover, the judges and state, county, and city
administrative officers are also elective. In addition to preventing
any officer from holding his place and his power against the will of
the majority, the wide application of the elective principle aids in
the decentralization of the executive power. It tends to make every
elective officer independent of every other officer in the discharge of
his statutory duties. By subjecting to an election at a given time a
part only of the total number of officers elected, a further check upon
the concentration of power is secured. The officers who do not come up
for election at a particular time may be of a different political faith
from those who are elected. In the same administration, therefore, some
officeholders may stand as a check upon the actions of the others. In
obedience to the principle of frequent elections all officers hold for
brief terms of one, two, four, or six years--usually for two or four
years.

Those who devised this plan of government for use in the United States
no doubt thought that the citadel of popular government as thus guarded
was absolutely impregnable. How could the power of government fall into
the hands of the few when it had been so carefully split up among so
many who could not possibly work together in harmony? How could the
power of government be retained in the face of popular disapproval
when those who exercised it were subject to such frequent elections?
Nevertheless, the impossible has again happened. The impregnable
citadel has been taken. The manner of its assault and capture is even
now one of the unexpected and, to many who appreciate only in a general
way what has occurred, one of the incomprehensible events of history.


FOOTNOTES:

[1] Compare Godkin, _Essays on Problems of Modern Democracy_, pp. 305-6.




CHAPTER II

 UNPOPULAR GOVERNMENT--HOW ESTABLISHED IN THE UNITED STATES IN SPITE OF
 THE PRECAUTIONS TO PREVENT IT


Section 1

Introductory

In brief outline this is what has occurred: As the population of the
country has grown and communities and states have passed more and more
beyond the frontier stage of development, the decentralization of
governmental power has constantly increased and the elective principle
has been more and more extensively applied. As a consequence the burden
placed upon the electorate has become more and more onerous. The voter
has been called upon to vote more often and for an increasing number
of officers. He must theoretically examine into the qualifications of
a large number of candidates at frequent intervals. This has placed
upon intelligent voting an enormous educational qualification. The task
of the voter to obtain sufficient information about candidates long
ago passed beyond what even the very intelligent citizen could fulfil
and still maintain his place in competitive industry. The result is
that the voter, though extremely intelligent in general, comes to the
polls in utter ignorance of candidates and their qualifications for
office. Nevertheless, he insists, in spite of his political ignorance,
upon voting for someone. He takes his voting seriously and endeavors
to make a show of voting intelligently. This attitude necessarily
requires him to secure advice from someone as to whom to vote for. At
once there is created the opportunity for the adviser to the voter. He
first appears naturally as a local leader whom the electorate trusts.
Soon, however, there arises the man who makes advising the politically
ignorant voter his profession. Then this professional adviser becomes
more of a director to the politically ignorant voter. This process
goes on in every electoral district where the voter is politically
ignorant enough to need some advice. It is not long before there is
developed a hierarchy of professional advisers and directors to the
politically ignorant voter. Sometimes there are competing hierarchies
of such advisers and directors. One or the other, however, is the more
generally successful, or both by agreement divide the privilege of
advising the politically ignorant voter how to vote--each helping the
other in its exclusive territory. Those who direct the politically
ignorant majority how to vote have filled the state and municipal
offices with those who are loyal to them first and to the governed
afterward. The leaders of the successful organization of advisers
and directors to the politically ignorant electorate have become an
extra-legal but none the less real government. A decentralized legal
government has been replaced by a centralized extra-legal government.
Thus the power of government has again drifted into the hands of the
few. These, pursuant to well-known human characteristics, use that
power selfishly. The decentralized character of the legal governmental
power, the fact that only part of the offices are filled at any
time, and the enormous advantage which comes from having a standing
army of advisers and directors to guide the mass of politically
ignorant voters, make it difficult to replace at the polls with real
representatives of the electorate the appointees of this extra-legal
government. We have, therefore, come finally to a well-defined
extra-legal but none the less real government of the few, by the few,
and for the few, at the expense and against the wish of the many. We
have, in a word, achieved the establishment of a substantial unpopular
government.

In form the politically ignorant voter is aided by the altruistic
advice of those who know who should be elected. In form the voter
can take the advice or not as he pleases. In reality, however, and
in actual practice, the power of the electorate to fill the state
and municipal offices has been confided by the politically ignorant
majority to the leaders in the successful hierarchy of professional
advisers and directors to the politically ignorant voter. The elector,
by being required to vote too much, has been compelled to surrender to
a large extent his right to vote at all, and to permit others to cast
his ballot as they see fit. Formerly people were disfranchised when
they were given no opportunity to vote. Today they are disfranchised
by being required to vote too much. Formerly the legal rulers of
the disfranchised masses were selected for them by the few without
equivocation. Today our legal rulers are selected for us by the few
through the subterfuge of the masses casting their ballots according
to the directions of the few. In other forms of unpopular government
the central figure has been the monarch, the autocrat, the oligarch, or
the aristocrat. In ours it is the politocrat. We have avoided monarchy,
autocracy, oligarchy, and aristocracy, only to find ourselves tightly
in the grasp of a politocracy.

So startling a conclusion with respect to our governmental condition
invites a detailed consideration of each step upon which that
conclusion is founded.


Section 2

 The Burden upon the Electorate--The Inverted Pyramid of Governmental
 and Electoral Districts--The Offices to Be Filled and the Number of
 Electors in Each District

No doubt the average American voter in most districts will readily
concede the great burden of his political duties. But unless he has
analyzed his particular situation he will hardly realize how great is
that burden. Of course, the condition of voters in different places
will differ in detail, but the important features are much the same
everywhere. For the sake of example I will analyze my own situation as
a voter of the Village of Winnetka, Township of New Trier, County of
Cook, and State of Illinois.[2]

I am one of about 600 voters in a village which elects each spring,
on one day, about one-half of the following officers: a president,
6 trustees, a clerk, a treasurer, a marshal and collector, 2 police
magistrates, and 6 library trustees; and on another day, shortly
afterward, a common-school trustee.

I am one of about 2,000 voters in a township which elects, on the same
day that the principal village officers are elected, but at a different
polling place, about one-half of the following officers: a supervisor,
a clerk, an assessor, a collector, a commissioner of highways, 5
justices of the peace, 5 constables, and a poundmaster; and at a
later day (but on the same day that the trustee for common schools is
elected), 2 high-school trustees.

I am one of about 18,000 voters to elect one member of the state Senate
every four years and 3 members of the House of Representatives of the
state legislature every two years at the regular November election.

I am one of about 28,000 voters who elect 5 county commissioners at the
regular November election every other year.

I am one of about 42,000 voters who elect one member of Congress at
the regular November election and one member of the State Board of
Equalization every two years.

I am one of about 322,000 voters who elect 3 sanitary trustees every
two years at the regular November election and a president of the
Sanitary District every five years.

I am one of about 350,000 voters who elect the following county
officers every other year at the November election: 2 of the 5 members
of the Board of Assessors, 1 of the 3 members of the Board of Review,
6 of the 18 judges of the Superior Court of Cook County; also about
one-half of the following officers: president of the Board of County
Commissioners, judge of the Probate Court, judge of the County Court,
state’s attorney, recorder of deeds, clerk of the Circuit Court, clerk
of the Superior Court, clerk of the Criminal Court, clerk of the
Appellate Court, clerk of the Probate Court, coroner, sheriff, county
clerk, county superintendent of schools, and county surveyor. I am
one of about 350,000 voters to elect, every other June at a special
election, about 5 of the 15 judges of the Circuit Court of Cook County.

I am one of about 380,000 voters to elect 1 of the 7 justices of the
Supreme Court of the state every nine years.

I am one of about 1,100,000 to elect at the regular November election
every two years about one-half of the following state officers: a
governor, a lieutenant-governor, a secretary of state, an auditor, a
treasurer, a state superintendent of public instruction, 6 trustees
of the state university, clerk of the state Supreme Court, and 2
congressmen at large.

I am one of about 15,000,000 voters who elect a president and
vice-president of the United States every four years at the regular
November election.

When I entered the voting booth at the regular November election in
1912, the ballot given me to mark was 22 × 28 inches in size. It called
upon the voter to do his part in filling, exclusive of presidential
electors, 34 offices. It presented for his consideration, exclusive of
presidential electors, 181 names from which to make selections.[3]

An enumeration of the offices to be filled by election merely
emphasizes the number of candidates whom the voter should inform
himself about. The extent of the burden upon the voter is not fully
appreciated until it is perceived how difficult actual conditions make
it for him to obtain information regarding candidates for office. The
least important and most inconspicuous state and local offices, as well
as the most important and conspicuous, must engage the attention of
the electorate of the entire governmental district. But the candidates
for inconspicuous and unimportant offices must usually be men who
are inconspicuous or unimportant in the community. Furthermore, the
importance and conspicuousness of subordinate offices do not increase
in proportion to the increase of population. The clerk of a court
or a county surveyor is not a more conspicuous officer because he
holds his office in a county having over two million inhabitants. He
is, therefore, proportionately less conspicuous and important as the
population increases. The voter is, therefore, constantly presented
with candidates whose reputations are in inverse ratio to the size
and population of the electoral district. The more electors there are
in the district the smaller in proportion is the reputation of the
candidate. The more the character and qualifications of the candidates
are hidden, the more difficult it is for the voter to obtain the
information which he should have in order to vote intelligently. For
instance, the 600 voters in the village where the writer resides are
called upon to select a clerk, a treasurer, a marshal and collector,
2 police magistrates, and library and school trustees. In so small
a community the voter may with some effort actually know who the
candidates for these places are. As a matter of fact, however, that
effort is considerably more than the large majority of voters will
push themselves to perform. The 2,000 voters in the township where
the writer resides are called upon to elect a supervisor, a clerk, an
assessor, a collector, a commissioner of highways, 5 justices of the
peace, 4 constables, a poundmaster, and high-school trustees. These
offices are not intrinsically more conspicuous or more important than
the village offices just enumerated. Hence the enlargement from 600 to
2,000 voters causes the candidates for office to be proportionately
less conspicuous in the community. To the same extent the difficulty to
the voter of obtaining information as to the character and attainments
of the candidates has been increased. The members of the state Senate
and House of Representatives are important officers because they
exercise the legislative power of the state. The conspicuousness and
importance of each of these offices is, however, weakened by the
existence of the other, for between the representatives and senators
the legislative power is divided and each is a check upon the other.
The members of the House of Representatives in the state legislature
are hidden to some extent from the voters because 3 are elected at
large from a senatorial district containing 18,000 voters. It is more
difficult for the voter to find out about a legislator when he is one
of 18,000 than when he is one of 6,000 voters. Twenty-eight thousand
electors of the County of Cook outside of the city of Chicago are
called upon to vote for 5 of the 15 county commissioners. The office is
not likely to be held by men whom it is easy for the average voter of
the district to pick up direct information about. To elect one member
of the state Board of Equalization 42,000 voters are called upon.
Again, the size of the electorate makes it difficult to know who the
candidates for the place may be. Three hundred and twenty-two thousand
voters are called upon to elect 7 sanitary trustees. Here the darkness
of the average voter becomes Egyptian, and he is practically excluded
from any means of a personal knowledge of who the candidates for the
sanitary trustees are. The same is equally true of the members of the
Board of Review, members of the Board of Assessors, the 30 judges
of Cook County, the president of the Board of County Commissioners,
the judge of the Probate Court, the judge of the County Court, the
state’s attorney, the recorder, the 5 clerks of the different courts,
the sheriff, the county clerk, the county superintendent of public
instruction, and the county surveyor. There are 350,000 voters who
regularly cast their ballots for these officers. Among a population
containing so many voters it is practically impossible, even for the
voter who makes an unusual effort, to acquire any personal knowledge
of who the candidates for these offices are. Take the most prominent
officials in the list--the judges and state’s attorney. The intelligent
man who is a voter has very little chance to acquire any personal
knowledge of the fitness of the candidates for these offices. A
particular judge or a particular candidate for state’s attorney may
become to some extent known to the voter and have the confidence of
the voter. But these are exceptional cases. The average candidate for
these offices is beyond the reach of any thoroughgoing knowledge on
the part of the voter. The difficulty of obtaining information about
one inconspicuous member of so large a population is too great. In
Illinois, to select a secretary of state, an auditor, a treasurer, a
state superintendent of schools, 6 trustees of the state university, a
clerk of the state Supreme Court, and 2 congressmen at large, 1,100,000
voters are called upon. Here again the inconspicuousness of the offices
compared with the size of the electorate is such that the obstacle to
the voter informing himself about candidates is practically insuperable.

One would think that the voter had difficulty enough in finding out
about candidates as a result of the simple process of requiring
comparatively inconspicuous and unimportant offices to be filled by
a very numerous electorate. But his difficulty has been enormously
increased by the process of requiring the voter to do the larger part
of his investigating for the purpose of voting at a single election.
For instance, the writer is called upon at a single election in
November to investigate the qualifications for office of a president
and vice-president of the United States, a congressman for his
district, 2 congressmen at large, about one-half of the state officers,
and about one-half of the county officers. To be exact, he must look up
candidates for 34 different offices (not including the presidential
electors) presented upon the long ballot given _supra_ (opposite p.
29), to the number of 181. Assuming that information about some of
the candidates for the more important offices, such as members of
Congress and members of the state legislature, could be looked up and
reliable information obtained, the chances are that this will not be
done because other more important offices, like that of president of
the United States and governor of the state, are to be filled. This
process of preventing the voter from investigating candidates for even
important and conspicuous offices by putting so much investigating upon
him at a single election that he cannot do it has operated to produce
political ignorance on the part of the electorate as to candidates for
Congress and the state legislature. These are important and conspicuous
offices. The candidates come from comparatively small districts. If
selected at an election where they were the only offices to be filled,
a very considerable amount of intelligence might be displayed by the
electorate. But these offices are hidden among half a hundred other
offices for which several hundred other candidates are running. In
the mass the voter is distracted and fails to a considerable extent
to distinguish the important from the unimportant. The extraordinary
amount of investigating to be done overwhelms and discourages him,
and he goes to the polls too frequently utterly ignorant of the
qualifications of candidates for members of Congress and the state
legislature.

That the decentralization of governmental power and the increased
application of the elective principle has necessarily cast upon the
electorate an enormous burden in order that it may vote intelligently
is clear enough from the everyday experience of the voter at the
polls. At least one political scientist has directed an experiment to
emphasize it. President Judson, a few years ago, gave to a graduate
class at the University of Chicago, four weeks before the regular fall
election in Cook County, a list of all the candidates for office on a
ballot substantially similar to that which appears _supra_ (p. 29),
and required them to report at the time of the election such facts as
they could ascertain about the candidates and their qualifications.
With diligent work on the part of the really mature men in Dr. Judson’s
class a satisfactory report was turned in with regard to only a small
percentage of the entire list. This, Dr. Judson thought, fairly
indicated what the average voter could do on his own responsibility in
the way of securing information respecting candidates if he had spent
the same amount of time with that object in view.

Not only is it obvious that the voter is under a great burden with
respect to seeking and securing information about the candidates
for office he is called upon to vote for, but it is clear that the
task is so great as to be impossible of fulfilment by the large mass
of the electorate who have their place in competitive industry to
maintain. A small handful of intelligent men of commanding position
in the community, after many years of experience, may be able with
comparatively little expenditure of time to inform themselves
accurately concerning a large number of the candidates of the two
or three principal parties on the ballot. But the average man whose
position in the community and experience with affairs is more limited
could not obtain the proper amount of information without an actual
neglect of his business or profession--a neglect which he dare not
permit. The voter who occupies a salaried position which demands a
full day of work for his employer throughout the year has no time,
inclination, nor opportunity for prolonged investigation into the
qualifications of candidates for public office. The residuary mass of
the electorate have neither the time, the experience, nor the interest
to investigate in advance and inform themselves of the qualifications
of candidates to be presented for a large number of offices.


Section 3

 The Resulting Political Ignorance of the Voter and His Consequent
 Disfranchisement

Of course, there is some political ignorance due to illiteracy and
general lack of intelligence. With this, however, we are not now
principally concerned. It is here assumed that except in small
and exceptional districts the great majority of voters are neither
illiterate nor unintelligent, but are of a fair average intelligence
and capable of reaching and following sound moral and political
judgments. The fact which is now to be emphasized is that the burden
upon the voter is such that the vote of the most intelligent man is
made quite as politically ignorant as that of the least intelligent.
The percentage of politically ignorant voting has become very high, not
because the voter is unintelligent, but in spite of the fact that he
may be extremely intelligent. An electorate that is capable of casting
an 85 per cent intelligent vote on a given matter of importance has,
by the simple process of requiring the voter to vote too much, been
reduced to the voting effectiveness of a Filipino who is not yet ready
for popular institutions. To the extent that our intelligent voter has
thus artificially been made ignorant in the discharge of his political
duties he has been disfranchised. Too much of what popularly passes
for democracy has resulted in too little real democracy.

When the voter faces in the voting booth such a ballot as that already
exhibited _supra_ (opposite p. 29), or even a much simpler one, he has
no time to analyze his condition of knowledge or ignorance. He must
vote quickly and be about his business. If we could secure a revelation
from the voter of the state of his mind as he faces the ballot, would
not his condition of ignorance be appalling? He would, of course, admit
that he knew nothing of the duties of a large number of the offices to
be filled. He would admit that he knew nothing of the qualifications of
a large number of the men who were seeking office. Indeed, many of them
he would never have heard of. The average voter would no doubt have
prepared himself, by reading, by following events, and by discussing
the matter with other voters, to vote for a particular candidate for
president of the United States. From the same sources he might acquire
a personal preference among the candidates for governor of the state.
He might have a personal preference founded upon some actual knowledge
or current rumor as to the proper candidate for congressman or member
of the state legislature or president of the county board. He might be
satisfied that some one of the several candidates running for several
vacancies on the bench ought to be elected. It is hardly probable,
however, that he will have any personal preference founded upon any
actual knowledge as to the candidates for all these places at once.
Outside the candidates for three or four places he will be utterly
and entirely devoid of any personal knowledge upon which to base an
intelligent vote.

To make this position more concrete I will describe my own state of
mind as to the ballot illustrated _supra_ (facing p. 29). I never
heard the names of any of the candidates on the Socialist Labor,
the Socialist, or Prohibition tickets except those of Debs and
Chafin, and of these I had an impression about the qualifications
for office only with respect to Mr. Debs. On the Democratic ticket I
think I was intelligent with respect to Mr. Wilson’s candidacy for
president and Mr. Dunne’s for governor. I had some personal knowledge
regarding one candidate for a trustee of the state university, the
candidates for state’s attorney and for president of the Board of
County Commissioners. The other names on the Democratic ticket
meant nothing to me. On the Republican ticket I regarded myself as
informed sufficiently to vote intelligently on Mr. Taft’s candidacy
for president, and Mr. Deneen’s for governor. I had some personal
knowledge regarding one candidate for representative at large in
Congress, the candidates for representative in Congress from the
congressional district, and for president of the Board of County
Commissioners. Of the remaining thirty-nine names on the Republican
ticket I recognized one as that of the son of a war governor, one as a
former attorney-general, one as a former county judge, three seeking
clerkships and the office of coroner, as the incumbents of the offices
for which they were running, and one as a lawyer with whom I had some
personal acquaintance. The names of the other candidates at the time I
voted meant absolutely nothing to me. On the Progressive ticket I was
intelligent with respect to Mr. Roosevelt’s candidacy for president
and Mr. Johnson’s for vice-president; also to the candidacy of those
seeking the offices of attorney-general and representative to the state
legislature. I had some acquaintance with one of the candidates for
trustee of the University of Illinois, and one of the five candidates
for county commissioner. The rest of the names meant nothing whatever
to me.

If the offices which the voter was called upon to fill while
politically ignorant were few in number and altogether insignificant in
the extent of the governmental power which they controlled, not much
harm would be done. But little by little, as population has increased
and social and governmental organization has become more complex and
the political duties of the voter have grown heavier, the political
ignorance of the voter has extended to a constantly increasing number
of candidates for office, until the sum total of the governmental
power of all the offices for which the voter casts his ballot in
political ignorance constitutes the principal part of the entire local
and state governmental power. The great sources of governmental power
are the Congress of the United States, the legislatures of the state
and local governments. When the tide of political ignorance on the part
of the intelligent voter rises so high that it embraces the candidates
for the local, state, and federal legislative bodies, the situation is
serious. When it includes the local judiciary and all but the president
of the United States, the highest executive officer of the state and of
the principal local government, the situation has become desperate.

So far as the electorate is too ignorant to vote intelligently it has
been in effect disfranchised. It does not really vote at all. If the
voter were required to vote blindfolded, or if the ballot were made up
in cipher, he would know that he was disfranchised. Suppose, however,
that the voter is blindfolded or the ballot done in cipher only in
those instances where the voter is called upon to vote without any
political information necessary to enable him to vote intelligently.
Would he be any worse off because of the cipher or the bandage on his
eyes? Does not the political ignorance of the voter as clearly deprive
him of his power to vote as the use of a cipher or blindfolding? In
both cases he goes through the mechanical act of voting, but he records
nothing at all by so doing.

The ignorance of the voter and his consequent disfranchisement
follow necessarily from our present plan of government. They result
immediately from the burdens placed upon the electorate. Those in
turn arise from the application of the two principles of government
which we have constantly heretofore applauded and proclaimed--the
decentralization of governmental power and the principle that all
offices of any consequence should be elective. These principles of
government are still regarded by the mass of the people as the true and
only sources of democracy and the necessary protection of the people
from all forms of unpopular government. The application of these
principles is in varying degrees protected by state constitutions which
provide for the separation of the powers of government, both state
and local, among departments and officers, and require local as well
as state subordinate officers to be elected at frequent intervals.[4]
Thus do the letter and the spirit of our governmental theory and
practice necessarily induce the wholesale ignorance and consequent
disfranchisement of the large majority of the electorate in regard to
candidates for offices, which, when filled, wield a very large, if not
the larger, part of the state and local governmental power.

Formerly unpopular government was founded upon the absence of any
voting. Today the electorate, while voting furiously, has nevertheless
been deprived to a large extent of the ballot because a burden of
knowledge--an educational qualification, in effect--has been placed
upon it which, under present conditions, it does not and cannot
fulfil. Thus, by the simple process of too much so-called popular
democracy--that is, too much decentralization of governmental power
and too much voting--we have arrived at the essential condition
which invites the establishment of unpopular government--namely, the
disfranchisement of the electorate.


Section 4

 The Power of the Electorate Passes to Those Who Take Advantage of Its
 Political Ignorance to Direct It How to Vote

The severe educational qualification which has been imposed upon the
electorate today has done more than merely deprive the voter of the
power to vote. It has presented to others the _opportunity_ to direct
the voter how to vote and thus in effect to cast his ballot for him.
That opportunity has at once been taken advantage of by men who have
been quick to perceive the vast political power which the privilege
of casting the voter’s ballot for him confers. This combination of
opportunity and selfish motive is the complete cause of the passing of
a considerable part of the political power of the electorate at large
to the few who direct it how to vote. It is important that the way in
which the effect follows from the causal conditions be set forth in as
detailed and precise a manner as possible.

The voting for a large number of the most important offices in the
state and municipal government is done during a few hours on election
day. In these few hours great masses of voters come face to face with
such a ballot as appears opposite p. 29. They have no opinion as to any
of the candidates except a very few, for the most part at the head of
the ticket. They do not, however, because of their ignorance refrain
from voting. Neither do they pitch a coin to decide for whom they shall
vote. They insist on voting, and they take their voting seriously.
It follows that when they are politically ignorant they vote the way
they are told to vote by somebody. The important questions are: Who
tells them how to vote? and By what means are they told? The small
minority, including many of the most intelligent, vote the way they
are directed by some newspaper. At one time a prominent newspaper in
Chicago was credited with the ability to direct about one-tenth of
the voters in a county or city election how to cast their ballots.
But this was possible only when the newspaper concentrated its entire
influence on the filling of one or two offices. The newspaper gives
very little advice to the voter with respect to the filling of a
considerable majority of offices for which elections are held. Even
as to the few offices with regard to the candidates for which the
newspaper makes a great effort to advise voters, its influence is
limited. A large proportion of the electorate vote the party circle.
Some are moved by sentiment or strong prejudices; others by the fact
that men of whom they know something personally are responsible for
the nominations or appear as candidates in a prominent place on a
particular ticket. In every case a vote in the party circle, which is a
blanket vote for a great number of party candidates of whom the voter
has no knowledge, is a vote according to the direction of those who
promoted or directed the nomination of the men who appear as candidates
in that party column. It is believed, however, that a very large body
of voters--especially in districts where large numbers are generally
ignorant or illiterate--need, and indeed must have, advice as to how
to vote from some individual whom they either look up to and trust,
or fear. These voters do not ask for political leadership. They do
not desire information upon which to found political opinions. All
they ask for is advice as to how to mark their ballots. In congested
centers of population this advice is sought within a few hours in a
single day by tens and even hundreds of thousands of voters. The voter
wants information as he approaches the booth. Even those who allow a
newspaper to direct them how to vote need advice in voting for offices
which the newspaper ignores. So the practice of independent voting and
splitting tickets causes the voter to seek advice from those who make
it their business to know something about the candidates. If these
masses do not obtain instruction and advice as to whom to vote for
they must refrain from voting, or pitch a coin, or fall back upon the
party circle. They do the last as the most rational, and thus take
the directions of those who are able to place the names of candidates
under the party circle. In brief, the entire situation is something
like this: As to four-fifths of the candidates for office the voters
are politically ignorant; yet they insist upon voting and in taking
seriously their duty as a citizen to vote. They will not pitch a coin.
Hence they must vote the way they are told. Nine-tenths of the voters
who cast ballots for four-fifths of the offices are directed to vote
by those who have placed the names upon the ballot or by someone
who makes a special appeal to the voter at the polls or by a special
canvass before election.

Not only, however, does the political ignorance of the voter present
an obvious opportunity to someone to direct him how to vote and thus
cast his ballot for him, but an overwhelming self-interest on the
part of individuals invokes at once the strongest motive to use the
opportunity. The man that can control the power of the electorate will
secure the power to appoint to office. He who can regularly place the
candidate in office will soon control the holder of the office and
exercise the governmental power which the officeholder wields. The
securing of such governmental power has always been an object in itself
to a proportion of the individuals in every community. When seen as a
source of personal profit and advancement, the numbers who will strive
for it and the efforts which they will make are greatly increased.
Indeed, the prize which the successful secure is such as to produce the
keenest competition and the most exhaustive effort.

It is important to notice that the necessities of candidates quickly
reveal the extent of the political ignorance of the voter and the
opportunity which this affords for someone to direct him how to vote.
The candidate, of whom the vast majority of voters are politically
ignorant because his office is obscure and inconspicuous, finds that
his election is not a matter of his policies and efficiency, but of the
efforts of workers at the polls and the canvassing of voters before
election. Such a candidate needs the support of successful advisers to
the politically ignorant voter. He needs the support of that man or
combination of men in the community that can cast the largest number of
votes of the politically ignorant. A little experience in fulfilling
this apparently innocent and legitimate demand for a campaign manager
will reveal to the manager the character of the voter’s political
ignorance and the fact that someone must always direct him how to vote,
and that this is the means by which political power is to be secured.
A slight actual experience is all that is necessary to point the real
path to the exercise by the few of governmental power.

Such conditions of opportunity revealed and ever-present selfish
motives must inevitably produce men who aspire to be successful
advisers to the electorate. Active competition for these places
naturally ensues. Success, then, means the survival of the fittest.
That means that among the professionals those win who take their
profession seriously, understand it thoroughly, and practice it
assiduously and with judgment, tact, and craft. Here, then, we have
the local political boss or professional politician. He is merely the
successful local adviser and director to the politically ignorant
voter. He is the man who can, more than anyone else, in a local
district, direct the largest number of the politically ignorant how
to vote. He advises and directs the voter how to vote principally by
personal canvasses of the voters and solicitations at the polls and
by controlling the machinery of nominations so as to determine who
shall appear as a candidate under a given party name. The political
ignorance of the voter is one of the necessary conditions to his
existence. The fact that most voters cannot make a show of voting
intelligently without someone to help them provides the opportunity
which calls him into being. The power of the successful adviser and
director to the voter is in direct ratio to the political ignorance of
the electorate. It makes no difference whether that ignorance be the
result of general lack of intelligence or be artificially produced by
placing a special educational qualification upon the voter which he
cannot or will not fulfil. To the extent that the adviser and director
of the politically ignorant voter can direct and advise the voter how
to vote, he can fill the offices of the state and local governments
with those who are loyal to him, and thus control some part of the
power of government.

Since the business of directing the politically ignorant voter how to
vote has fallen into the hands of a professional class and since the
prize to be won is the control of governmental power, it is not to be
wondered at that the profession has become highly organized for the
purpose of achieving its object; that men of extraordinary power and
ability have arisen as its leaders, and that to a very great extent the
object of the organization has been achieved.

The political boss or adviser to the politically ignorant voter
first appears in the smaller election districts. His advent is
coincident with a certain degree of political ignorance on the part
of the electorate. At first that ignorance was the result of the
actual illiteracy which appeared in the majority of the voters of a
particular district, usually in a large city. Thus we first hear of
the ward boss in our larger cities. His ward usually contains a large
foreign population living in the densest political ignorance, easily
terrified, easily cajoled, and easily corrupted. The steady increase in
the length of ballots and the burden placed upon the electorate soon,
however, began to produce artificially a state of political ignorance
on the part of the most intelligent electorate. This at once produced
the political boss for districts where the electorate was possessed
of a high average of character and intelligence. This boss was of a
different type from a river-ward boss. It took longer to make him. He
was of a somewhat finer grain. He had some inkling of the fact that he
really bore a fiduciary relation to the politically ignorant electorate
whom he advised and directed and whose vote he cast. He had to possess
himself of the confidence and the trust of his constituents. His
success was obtained only by close attention to his profession and by
qualities of tact and leadership. His supremacy was retained only by
care and subtlety. The moment each one of any considerable number of
local election districts developed such a professional political boss
it was inevitable that they should begin to act together to direct and
advise the politically ignorant voters of the larger districts how to
vote when it came to the filling of a more important office in a larger
election district. Thus the bosses of the city wards and the country
districts combined to agree on who should be presented to the voter
for election and to direct the voter how to vote. Naturally out of
the combination some men emerged capable of leading the combination
of bosses. Thus arose the city or county machine. In extraordinary
instances a single man became a city or county boss for a particular
party organization. In the same way, when the districts of a state
were well provided with permanent political bosses, there was a
movement among the leaders to combine into a state machine. Again, in
extraordinary cases a single man was great enough to be the supreme
political leader of a political party organization in a state and to
lead it regularly to victory at the polls.

Thus almost imperceptibly, but with astonishing rapidity, there have
been developed state-wide feudal organizations for the purpose--in
form at least--of advising the politically ignorant voter how to
vote, but in reality for the purpose of casting his vote for him, and
thus securing the political power of the electorate. In each smallest
election precinct there is a regular band of workers under a precinct
captain. In each collection of precincts which make the smallest
electoral district, like a ward in a city or a township in the country,
there must be a mesne lord whom the captains obey. In larger election
districts, such as a city or a county, or a combination of counties,
there must be tenants in chief over the mesne lords. Finally, there
is the great lord paramount for the whole state. No precinct captain
is permitted to have any idea of principles or policies. It is his
duty, with his aids, to produce delegates for conventions who will
vote as the organization chiefs direct, canvass the precinct before
election and buy, command, instruct, persuade, or coerce, as the
exigencies of the case may require, votes for the candidates named by
the organization chiefs. When the precinct captain and his workers fail
to perform these services successfully, out they must go, and others,
waiting eagerly for promotion, will take their places. When they show
ability they will make progress in the organization. The district boss
must equally keep his captains in obedience and effectiveness. For him
also there is promotion or reduction to the ranks in prospect. It is
the law of life and the source of the organization’s power that its
officers render implicit obedience to their immediate chiefs and that a
mighty personality direct the whole.

Thus does the power of the electorate pass to those who take advantage
of the political ignorance of the electorate to direct it how to vote.


Section 5

 The Power of Government Passes into the Hands of Those Who Are Able
 to Direct the Majority of the Politically Ignorant How to Vote. They
 Constitute an Extra-legal but None the Less Real Government

The professional adviser and director to the politically ignorant
voter aims to secure control of as much of the power of government as
possible. His means to that end consist in becoming the most important
single factor in the filling of the offices of the legal government.
Success in advising and directing a majority of the politically
ignorant voters how to vote places in his hands the power to fill by
appointment all offices for which candidates are presented who are
unknown to the electorate generally. Our political boss naturally
tends to appoint men who are loyal to him and to his power, and by
this means he naturally secures a certain control over part of the
local governmental power. In the same way, the prize of a combination
of successful local bosses is the power to appoint the majority of the
officeholders of some more extensive and important local municipal
government and thus obtain control of a part of its governmental power.
When the state-wide organization of the feudal army of directors
and advisers to the politically ignorant voter has been thoroughly
perfected, with a man of great ability at its head, the prize to be
obtained is the principal part of the entire governmental power,
whether state or local. More and more such an organization will fill
with men loyal to its leaders the local and state legislative bodies,
the local and state executive offices, and even places upon the bench.
Such an organization, when continuously successful for any length
of time, will have actually filled all of the less conspicuous and
less important offices in the executive, legislative, and judicial
departments of the state and local governments.

But the influence of such an organization will go farther than this.
Being in existence and efficient, it will often be a determining factor
in nominating and electing a candidate for an office so important,
and, viewed by itself, so conspicuous, that in a special election
to fill that one office the intelligence of the electorate would be
displayed at its maximum. For instance, if we look at the federal
government alone, we find that the voter casts his ballot only for
president, vice-president, and usually only one congressman. The
congressman is selected for the most part from a fairly small district.
Taking the federal government by itself, the voter’s function in
selecting a congressman is so simple and direct that no professional
advice or direction is needed except in the unusual case where the
district is filled with an actual illiterate vote. But the moment the
vote-directing organization is called into being in the congressional
district because of the artificially produced political ignorance of
the voter in respect to candidates for various local municipal offices
and state offices, such an organization at once exercises an important
control over the nomination and election of the congressman. In the
same way the organization will gain a very considerable influence over
the nomination and election of candidates for local municipal offices
where they consist only of the mayor and an alderman from each ward,
who are elected at a special election. Such an organization will have
at all times a vast influence in the nomination and election of judges,
even when they are chosen at a special election. There is no doubt that
the nomination for governor of the state and president of the United
States may from time to time be greatly influenced by politocrats whose
power is based upon the political ignorance of the voter in respect to
candidates for all manner of obscure offices in the state and local
governments. Speaking generally, if the voter is habitually so ignorant
politically that the politocrats have secured, to a considerable
extent, the power to direct him how to vote, then the politocrats
will exercise a great deal of influence in determining who shall be
elected to offices so conspicuous and important that if they were the
only ones filled by election the voter would exercise a high degree of
independence and intelligence in making his selection and the services
of the same politocrats would be wholly dispensed with.

A vote-directing organization which is steadily successful in a given
state or local government for eight years will reach a point where it
actually places in practically all the state and local offices that
are filled by election, and also in the House of Representatives, in
Congress, and in the United States Senate, men who are loyal to the
organization and its leaders before everything else. The leader of such
an organization may even have obtained a controlling influence with the
governor of the state and the president of the United States, so far
as their power extends to local appointments and affairs. When this
occurs, the leaders of the state and local vote-directing organization
have become the real though extra-legal government. The real power of
government, both state and local, and an important influence in the
power of the federal government are in their hands. Local and state
executive officers and local and state legislators will take orders
from these leaders. Judges in a more subtle way will take account of
their wishes.

Thus we have, however imperceptibly, none the less effectively changed
the character of our government. The very excess of our precautions
to prevent the power of government from coming into the hands of
the few has delivered the power of government into the hands of the
few. So obviously and completely has the elaborate effort of our
constitution-makers failed to keep governmental power out of the
hands of the few that we might as well accept it as axiomatic that
governmental authority in any highly organized society cannot be
prevented from becoming concentrated in the hands of the few. Our form
of government has indeed changed from the decentralized democracy
of the frontier to the centralized politocracy of a highly organized
civilization. We have turned our back upon the autocrat and the
aristocrat only to find ourselves in the hands of the politocrat.


Section 6

 The Extra-legal Government Uses Its Power Selfishly to Maintain Itself
 and to Benefit Those Who Have Organized and Supported It

Our extra-legal government is not one of altruists. It may be relied
upon to act selfishly in two respects: First, it will use all of its
influence and power to maintain itself. Then as its tenure of power
becomes more secure it will use that power to reward the leaders who
have organized and supported it.

The clear perception of what is necessary for the maintenance of
the extra-legal government will provide the wise politocrat with
a deep-rooted political philosophy. His creed, if uttered, would
sound something like this: “I believe in the disfranchisement of the
voter by keeping him too ignorant politically to vote intelligently.
I believe that all voters, no matter how intelligent in general,
can be made politically ignorant in voting by placing upon them a
burden of investigating candidates and attending elections which
they can conceivably, but will not in fact, perform. I believe that
such a burden upon the voter can be produced most readily by the
decentralization of governmental power in every possible way, and the
constant application of the elective principle. I therefore believe
in fostering the popular fear of kings, the popular prejudice against
the centralization of power and the filling of offices by appointment.
Above all I believe in more democracy (i.e., more applications of the
elective principle) as the cure for the ills of democracy.”

With these deep-seated convictions, the course of action of the wise
politocrat in many respects is not difficult to predict and not
difficult to understand when it is observed. The chief executive of
the state or of the United States who, in response to any popular
demand, attempts to influence or coerce the legislature must be
publicly rebuked. It must be pointed out that he is overstepping the
bounds of his constitutional power. He must confine himself to the
limited constitutional sphere of the executive. When a man becomes
governor or president he must cease to be a citizen. The promotion
of decentralization of governmental power through the creation of
several new municipal corporations operating in the same district is
a step which should always receive the favorable attention of the
politocrats. The constant application of the elective principle to
each newly created office must be maintained. The election district
furthermore should always be kept as large as possible and always
larger than the personal reputation of anyone who would be likely to
seek a given office which the voters of the district select. Methods
of redistricting can be devised and carried out so as to yield the
maximum amount of power for the extra-legal government for the time
being in power. Election laws must be so shaped and administrative
acts so directed as to enable the organization to marshal its votes in
the most effective way. New parties and independent movements must be
discouraged. One of the neatest devices to effect such discouragement
is to retain the party circle and at the same time provide that no
candidate shall appear on more than one ticket on the ballot. That
will force all candidates who can secure the extra-legal government’s
party nomination to take it as against an independent nomination.
The fact that the extra-legal government puts up some men who are
satisfactory and who cannot also be placed upon an independent ticket
will discourage the putting in the field of any independent ticket. No
harm will be done to the extra-legal government by politocrats if the
network of governmental bodies becomes very complex, or if the details
of carrying out provisions of election laws become so difficult to
understand that the whole machinery of elections must be directed by a
few experts.

But the chief care of the wise politocrat will not be to acquire a
selfish political philosophy or a selfish program for governmental
legislation. Of paramount importance is the organizing, recruiting,
training, feeding, and caring for the feudal army of directors and
advisers to the politically ignorant voter and the rewarding of the
officers and lesser leaders of that army according to their position.
So far as possible, of course, the district and precinct workers will
be given places upon the public pay-rolls and so fed and clothed from
the public treasury. In return for what they receive from the public
they will do the minimum amount of work for the public and the maximum
amount for the organization. Places on the pay-rolls of private
corporations may also be at the disposal of the leaders among the
politocrats. In a city of any size much small graft connected with the
issuing of licenses of all sorts, the selling of liquor, the business
of vice, and the activities of the underworld may be picked up by the
privates and captains in the organization. The lesser politocrats
will take the higher salaried positions and fee offices. It will not
interfere with their obtaining these places that they must submit to an
election. The work of the office will be done by a chief deputy paid
out of the public treasury. The holder of the office will, therefore,
be enabled to spend his entire time conducting the business of advising
and directing the politically ignorant voter whom to vote for. The
larger graft connected with the protection of the business of vice
and the activities of the underworld will go to those who are still
higher up among the politocrats. This, however, is a dirty and risky
mode of reward and the protection which can be given has its limits.
Many politocrats, and among them the most powerful, will not touch
it personally. In certain districts men of excellent social standing
and mental attainments can be used to advantage by the extra-legal
government. In most instances material of this sort can be drawn from
among lawyers. The reward for those who are constant and effective in
their service will be a place in the corporation counsel’s office or
the state’s attorney’s office, and finally a place upon the bench. The
larger graft of public contracts is reserved for the overlords of the
feudal organization. But even this the great leaders will not touch.

The great prize which is reserved for the lord paramount and his
tenants in chief is the privilege of entering into an alliance,
offensive and defensive, with special business and property interests
which need the aid of the local or state governmental power to exploit
to the best advantage the many, or the protection from governmental
interference at the demand of the many who are being exploited. Indeed,
so close may the relations become between the great captains of such
special business and property interests and the extra-legal government
by politocrats, that the real power of government may to some extent
actually reside in the former rather than the latter. It will indeed
be difficult in many instances to tell which group commands and which
obeys. Where the leaders of both are equally able there will be a
complete partnership.


Section 7

 The Extra-legal Government Is Able to Maintain Itself in the Face of
 Popular Disapproval

The conditions under which extra-legal government exercises its power
and the manner of that exercise furnish it with certain considerable
advantages in its very natural effort to maintain itself in the face of
popular disapproval.

The extra-legal government has the advantage of being hidden from the
electorate. The mass of voters can tell who only a few conspicuous
officeholders in the legal government at any one time are. Of the
existence of a thoroughly organized extra-legal government they have
no real knowledge whatever. If they have some idea of machines and
bosses it is vague and imperfect. They see only a little at a time and
have no idea who it is that casts their ballots for them. The voter
who masters such secrets is rare indeed. Even the very intelligent
man who is a voter cannot tell anything in his own district about the
extra-legal government. He only knows that there are bosses whom he
never seems to have a chance to vote against. This secrecy on the part
of the extra-legal government is an invaluable asset in enabling it to
retain power. So long as extra-legal government remains hidden, there
is little chance of the voter causing it any serious damage.

The extra-legal government has a great advantage also in the fact that
while it is the real government, the electorate is constantly voting
for the legal but dummy government of officeholders. Of course, if the
voter knew the connection between each officeholder and the extra-legal
government he might vote intelligently, but that is information of
the most secret kind. In many instances it is impossible for anyone
to obtain it. Certainly it cannot be expected that a voter who is
in ignorance of the qualifications and personality of most of the
candidates for office will ever know what connection any of them have
with a more or less secret extra-legal government.

The wise politocrat appreciates the advantage which his extra-legal
government has in hiding behind the legal government and in the fact
that his power is not subject directly to the approval or disapproval
of the electorate. He knows, however, that from time to time some loyal
adherent of the extra-legal government will demand and must be given
the nomination for an office so prominent that his record will be fully
investigated and his relation to the extra-legal government become
widely known. Then the existence of extra-legal government will, in the
contest for that office, become an issue, especially if there be an
independent anti-politocratic candidate. But experience will make it
clear that such an issue must be avoided. The extra-legal government
must drop as a candidate for an office of any prominence a man known
by the electorate to be loyal to the politocracy. In his place may be
put a fresh dummy or a real independent, as the exigencies of the case
require. The former step is, of course, from the point of view of the
politocrat, to be preferred. When, however, the outlook is dark and
forbidding for the extra-legal government in power, its leaders will
assent with a show of enthusiasm to the nomination of a Hughes or a
Wilson. They know that the naming of an independent and popular man who
is likely to be successful at the polls will enable their extra-legal
government to appoint to office the subordinate elective officeholders
in the legal government. They know that a governor surrounded by
independent subordinate officers and opposed by legislators selected
by and loyal to the extra-legal government can do that government no
permanent damage. They know that most men can, during their term of
office, when placed in close contact with such opposition, be worn down
and disheartened, so that they are glad to quit when the opportunity
for promotion to a place where they need no longer war upon extra-legal
government is tendered them. Thus, a popular governor may be induced to
accept the position of vice-president or a place upon the Supreme Court
of the United States.

The failure to observe this principle of action at the Republican
National Convention of 1912 has started the most widespread and serious
movement against extra-legal government that we have yet had. According
to all the rules of astute politocratic management, the representatives
of extra-legal government in that convention should have acquiesced
in the selection of the most popular and prominent leader available,
in spite of the fact of his independence. They should have driven
into power with him as many of their adherents as possible, or let
him go down to defeat. Whichever happened, extra-legal government, as
conducted by means of the control of an extra-legal oligarchy over
successful candidates for office, would not have been disrupted and a
general movement inimical to the whole basis of extra-legal government
would have been averted. The revelation of the existence of a power
in a few hands which could legally override popular desires in the
selection of a candidate for the president of the United States, and
the exhibition of what, to a large number of people, must have seemed
to be the actual exercise of such a power, and the defeat of the
popular will clearly expressed could have only the result of launching
one of the greatest independent political movements of half a century,
with its principal attack upon extra-legal government as it has grown
up in the United States. This is the same sort of mistake that the
advocates of slavery made when they underestimated the unexpressed
determination of the North to preserve the Union.

There are, of course, as many rival vote-directing organizations as
there are political parties which have become established and have a
name with any good-will attached. If two of these organizations are at
all well matched and occupy practically the entire field, their leaders
frequently make secret agreements according to which the governmental
power is divided. One takes the city and the other the county, or one a
great metropolitan district and the other the state. Such arrangements
are preferred to a life-and-death struggle for supremacy. They result
in a combination which it is exceedingly difficult for the politically
ignorant majority of the electorate to overcome.

After all, however, do not the people rule? Does not the power of
such extra-legal government continue by their choice? Can they not
smash it if they choose? Theoretically, yes; practically, no! The
extreme decentralization of the legal government--the success of the
constitution and laws in preventing the concentration of power at
any one point in any one office in a legal government--is the very
foundation upon which the existence of the extra-legal government
rests. It is also the chief reason for its continuance in power.
The paramount power of the electorate as a whole is broken into
infinitesimal fragments by the constitution and laws providing for a
multitude of independent offices to be filled by election. To turn
out an extra-legal government which has filled practically all of
the offices in the legal government the electorate must be vigilant,
active, and successful, not in filling one office or a few offices at
a single election, but in the filling of a hundred offices voted for
at all the elections occurring during a period of from four to eight
years. The extra-legal government stands as a solid, well-organized,
single-headed army against a large but disorganized mass. The latter
may triumph at points or on occasions, but it will exhaust its
strength in comparatively small and unimportant victories. Coming
to the voting booth constantly handicapped by the densest political
ignorance, without organization and without leaders, it falls again and
again before the trained and permanent feudal army of vote-directors.
There will be no serious danger to our extra-legal government from
the electorate as a whole while the officers of the legal government
are shorn of power or the opportunity by combination to secure power
and compelled to face constantly an electorate ignorant of their
personalities and their qualifications for office. It is one of the
maxims of modern warfare that the important thing is to destroy or
disrupt the opposing army--not merely to occupy a particular place
or a particular territory. In the same way, in a war upon unpopular
government, it is important to destroy or disrupt it, not merely to
fill a few offices, or even many offices, with good men who are opposed
to an extra-legal government which still continues in existence, ready
again to seize the power of government when occasion offers. So long
as the real government is in an extra-legal oligarchy at the head of a
feudal organization of vote-directors which remains unimpaired, while
the popular army occupies for the time being a few offices denuded
of power, the campaign has accomplished next to nothing. In a few
more elections the extra-legal government will again have secured as
complete control as before.

Even when monarchy was absolute and a popular uprising overthrew it by
means of a successful revolution, the ultimate result was merely to
substitute a new absolute monarchy for the old one. So with us today,
when one extra-legal government by politocrats is overthrown by the
extraordinary and prolonged efforts of the electorate, nothing happens
ultimately but the substitution of a new extra-legal government for the
old. The fact is that so long as we know of no other form of government
except an absolute monarchy, or insist upon a plan of government
which necessarily results in a decentralized legal government being
controlled by a centralized extra-legal government of politocrats,
we shall never have any other form of government except a monarchy or
an extra-legal politocracy. The tendency of the mass of the people to
acquiesce in any governmental arrangement that they seem not to be
able to escape from is a great asset to the maintenance of power by
the extra-legal government. If it takes a supreme effort for a number
of years successively to oust a present extra-legal government, and
when the result of so doing is merely to substitute another extra-legal
government of the same sort, what is the use of the extraordinary
effort made? Why not advise the voter to concentrate his efforts
from time to time in getting good men in the more important offices
and letting the rest go? This attitude of mind becomes more and more
common, especially among intelligent men who see the actual situation.
It is substantially a surrender of all the offices to the control of
the extra-legal government.

Such are the circumstances which a priori make the continuance of our
extra-legal government, in the face of popular disapproval, probable.
The fact that it has and does now so continue is becoming every day
more apparent. Suppose, for instance, at any time in the last ten years
the direct issue could have been presented to the electorate whether
they preferred government by an extra-legal oligarchy of politocrats,
subject only indirectly and very slightly at any single election to the
electorate, or a legal government, subject directly to the will of the
electorate. Can there be any doubt that the great majority would vote
the extra-legal government out of power and abolish politocracy as they
would abolish absolute monarchy or a self-perpetuating oligarchy? If
any demonstration of the temper of the electorate on such an issue be
needed, we have it in the steady popularity of all measures which have
been put forward aimed at the so-called political bosses and government
by them. Twenty-five years ago it was apparent to the electorate that
the ward boss in some districts of our larger cities maintained himself
in part at least upon corrupt voting. Hence the Australian ballot.
Then it was observed that political machines supported their workers
by salaries from the public pay-rolls. Hence the civil service acts.
Then the extra-legal government’s control over nominations seemed to
be the true source of its power. Hence the direct primary. It was also
observed that the extra-legal government had a grip on the state and
municipal legislatures and the state and local executive offices and
the judges. Hence the initiative, the referendum, and the recall. It
was observed that the origin of the extra-legal government and the
great source of its power came from the complexity of our municipal
governments, their cumbersome administrative machinery, and the
number of offices submitted to the electorate. Hence the movement
for the consolidation of municipal governments and their control by
a commission. It has been observed that the governor often expressed
in a satisfactory manner the desires of a majority of the electorate,
but that he had no power to initiate legislation. Hence the two recent
proposals that the governor’s bills be given the right of way upon
the legislative calendar so that they could be brought to a vote and
not quietly strangled by the crowding of the legislative docket and
the action of committees; and that the governor be allowed to submit
for approval by the electorate generally any bill presented to the
legislature and not passed by it.[5] The judges, especially those of
the Supreme Court, were observed to be declaring laws, in favor of
which there was great popular sentiment, unconstitutional. The courts
were then at once placed by the electorate in the same camp with
the extra-legal government--quite unjustly perhaps--and the demand
arose for the recall of judges, or the recall of judicial decisions
on constitutional questions, or in any event the greatest possible
restriction upon the court’s power to declare acts of the legislature
unconstitutional, or the elimination of that power altogether.
Finally, we have had most recently a new national party, which has
been dedicated in general to the war on extra-legal government and
to a program of governmental reform believed to be inimical to its
existence. Every one of these movements upon analysis shows the
electorate conscious of the deprivation of its power to express its
will and to enforce responsibility to it from the officers of the legal
government.

We are obviously in the midst of a great effort to meet an overpowering
extra-legal governmental force which has been depriving the electorate
of its power and legitimate influence in the functioning of the legal
government. Such continued, increasingly aggressive, and always popular
efforts to rid ourselves of extra-legal government by politocrats
points very clearly to the conclusion that our state and municipal
governments have in a greater or less degree fallen into the hands of
that sort of government, and that it has been able for a generation,
and is even now able, to maintain itself in the face of popular
disapproval. A practical, workable form of unpopular government has, in
spite of the precautions taken to prevent it, been established in the
United States.


FOOTNOTES:

[2] See frontispiece.

[3] The ballot which the voter in Chicago faced at the same election
was even larger. It was 19 × 31 inches and presented elections to
53 offices, exclusive of the presidential electors, and 267 names,
exclusive of the presidential electors, to be voted upon. At the fall
election in Cook County in 1910 the ballot was 17 × 20 inches. It
presented 52 offices to be filled and 190 candidates for the voter to
investigate.

[4] In Illinois, for instance, the following state and local offices
are provided for in the state constitution, protected by the state
constitution, and required by the constitution to be filled by
election: governor, lieutenant-governor, secretary of state, auditor of
public accounts, state treasurer, superintendent of public instruction,
attorney-general, judge of the Supreme Court, clerk of the Supreme
Court; in counties outside of Cook County: the county judge, state’s
attorney, sheriff, county clerk, treasurer, recorder, coroner, clerk
of the Circuit Court, county superintendent of schools, judge of the
Probate Court, judge of the Circuit Court; in Cook County: 15 county
commissioners, judge of the County Court, 14 judges of the Circuit
Court, 18 judges of the Superior Court, state’s attorney, recorder,
coroner, sheriff, county treasurer, county clerk, clerk of the Circuit
Court, clerk of the Superior Court, and county superintendent of
schools. This includes all the state and local offices named in the
long ballot printed opposite p. 29, except 3 trustees for the state
university, 3 representatives in Congress, 1 member of the State Board
of Equalization, 2 members of the Board of Assessors, 1 member of the
Board of Review, the county surveyor, and 3 trustees of the Sanitary
District.

[5] _Post_, chap. xv.




PART II

THE WAR ON POLITOCRACY




CHAPTER III

DISSIPATION OF POLITICAL IGNORANCE BY SELF-TAUGHT POLITICAL EDUCATION


If extra-legal unpopular government by politocrats rests upon a
condition of political ignorance on the part of the electorate, then
it will be said that the obvious cure is to dissipate that ignorance
by political education. It would not, however, be suggested that this
political education be compulsory and at the expense of the state by
competent teachers. That would irritate the electorate, be expensive,
and probably end in the establishment of a state-paid boss. No! The
political education of the voter must be self-taught. He must be
aroused to more knowledge and a more conscientious performance of
his political duties; more investigating of the qualifications of
candidates and greater efforts to secure the proper sort of candidates.
He must spend the time necessary to perform all his political duties
and to do so intelligently enough to make an individual choice as to
every candidate for every office at every election.

Many persons of intelligence will regard this as the only means of
successful assault and permanent overthrow of extra-legal and unpopular
government by politocrats. They are therefore content to sit still and
await the millennium of self-taught political education which will
enlighten the voter. The difficulty is that dissipation of political
ignorance by such means will never occur. Since political education
is not compulsory, we have to deal, not with the political knowledge
which the voter might conceivably obtain, but that which he actually
secures. The fact is the electorate is the sole judge of how much work
it will do in securing political knowledge and performing political
duties. On occasions it may be aroused to an exceptional activity; on
other occasions it may do nothing at all. Obviously then, in order to
obtain the highest percentage of intelligent voting on an average it
is necessary that the political duties of the electorate be adjusted
to the amount of self-taught and self-acquired political education
that the electorate will generally and in the long run secure. If the
political duties and education required are out of all proportion to
what the electorate will obtain for itself, then political ignorance
and neglect of political duties follows as a matter of course and is
a fixed and continuing condition. It is futile then to insist upon
the performance of duties which the electorate will not perform or
the attainment of a political education which the electorate will not
secure by its own efforts and which cannot be had in any other way.
The proper course is to readjust the political duties of the voter so
that what he is called upon to do he will accomplish with the minimum
amount of ignorance in view of the effort which he himself is likely to
develop to inform himself and make an intelligent choice.

When, therefore, we find an extra-legal unpopular government by
politocrats established by reason of the long-continued and increasing
political ignorance of the voters, who are on the whole an educated and
intelligent class of citizens, the necessary inference is that the
political duties of the voter and the requirements of self-obtained
political education have been placed far beyond his willingness to
perform, or perhaps even beyond the possibility of fulfilment by him.
To insist then upon self-taught political education which the voter has
not in the past and will not in the future and perhaps actually cannot
secure is to all practical intents and purposes to ignore utterly the
cause which makes the existence of extra-legal unpopular government
by politocrats permanent. It offers no means whatever for ridding
ourselves of such government.




CHAPTER IV

THE AUSTRALIAN BALLOT AND CIVIL-SERVICE ACTS


The evolution of the modern politocracy began with the ward boss in
districts of our larger cities where voting was ignorant because the
population was largely foreign, illiterate, and easily corrupted,
cajoled, or frightened. The boss’s methods of carrying elections were
coarse. The business of vice and the activities of the underworld were
protected and the corrupt and illegal vote increased to the utmost.
Indeed, to the average citizen and his leaders it seemed that the
power of the boss rested mainly upon the corrupt and illegal vote.
They saw that the opportunity of securing this vote was large because
of the loose method of conducting elections. At once advocacy of the
Australian ballot law became a part of the fight against the boss.
Voters must be registered in advance of election day and opportunity
given to challenge all voters so registered. The ballot must be
secret, so that the corrupter could never be sure that the bribed
delivered the vote which he had been paid for. The remedy proposed
received an overwhelming popular approval a generation ago and
elaborately drawn Australian ballot laws are now almost everywhere in
force.

No doubt the Australian ballot laws were a needed and valuable reform
indeed, but the power of the boss did not rest ultimately upon the
illegal and corrupt vote. Fundamentally it depended upon the political
ignorance of the voter. The power of the ward boss not only survived
the Australian ballot laws, but it tended to increase with the spread
of political ignorance on the part of the voter. Other bosses of a
different type sprang up and ruled in districts where the corrupt and
illegal vote was negligible, but where political ignorance prevailed
among an intelligent population. Then a hierarchy of bosses became
a machine and by means of the machine secured the control of the
governmental power of a municipality.

In moments when the electorate turned its attention to the matter it
observed that the machine and its leaders practiced spoils politics on
a large scale. Its workers were being cared for by means of salaries
from the public treasury. Efficiency in the service of the machine was
a more important qualification for office or employment than efficiency
in the service of the municipality. Naturally the enemies of the
extra-legal government began an agitation for civil-service acts which
should take the places in the public service out of politics--that
is, out of the control of the politocrats. Government employees must
be appointed only from eligible lists made up by a civil-service
commission after holding an examination designed to test the efficiency
of applicants. Once appointed from such a list, the appointee must
be protected in his position from a discharge based upon political
reasons. The enemies of politocracy rallied to the support of the
civil-service acts and an appeal to the popular disapproval of the
extra-legal government in general secured very widely the adoption of
civil-service principles.

No doubt the civil-service acts were necessary and valuable
legislation, but the power of the bosses did not rest fundamentally
upon their ability to place their workers on the public pay-rolls any
more than it had rested upon the corrupt and illegal vote. The power
of the extra-legal government still was predicated upon the political
ignorance of the voter. This cause not only lay undisturbed, but, with
the increase in the number of elective officers, and the multiplication
of local governments operating in the same territory, each with a
corps of elective officers, it became more and more pronounced and
widespread. Even the most intelligent man became by an artificial
process politically ignorant and befogged. Local bosses became more
usual, less coarse in their methods, and more able. Combinations
of bosses secured more governmental power in widening areas of
governmental control.




CHAPTER V

ALTRUISTIC EFFORTS TO ENLIGHTEN THE VOTER


A few astute friends of the electorate have perceived that the power
of the extra-legal politocracy rested fundamentally upon the political
ignorance of the voter, especially the political ignorance of the voter
who was an intelligent man and who could render a valuable judgment if
he could have the facts. This idea produced the Independent Voters’
League, which through a small executive committee undertakes to gather
facts and give out information to the voters about candidates for
office. The electorate, of course, should be given information about
all candidates in every election. But such a task is too large and (if
indeed it be possible at all) would require more money than could be
raised by subscription from a comparatively few people. These leagues
therefore, when formed, have devoted all their energies to giving the
voter information about the candidates for a single office. Thus in
Chicago the Municipal Voters’ League informs the electorate in each
ward of the city about the candidates for aldermen and those alone. The
Illinois Legislative Voters’ League gives out information concerning
candidates for the state legislature.

It has been noticeable that of the two the Municipal Voters’ League
has been the more effective. This is due in part at least to the fact
that at the Chicago aldermanic elections the ballot is very short. In
many elections the candidates for the aldermanic office and those alone
appear upon the ballot. Thus the voter’s attention is concentrated upon
the candidate for a single office from a single district. The advice
of the league is, therefore, more easily noted and remembered. On the
other hand, the Legislative Voters’ League attempts to advise the voter
at an election at which are filled state, county, and judicial offices.
The length of the ballot and the number of offices to be filled has
already been indicated by the specimen ballot printed, _ante_, opposite
p. 29. Naturally the advice is lost in the babel of voices which
goes up concerning the candidates for the important local, state, and
national offices to be filled.

The bar primaries as they have been held in Chicago are the weakest
of all these altruistic efforts to inform the voter how to vote. Such
primaries are merely the expression of preferences by the lawyers of
Cook County with respect to the candidates for judicial office. They do
not characterize any candidate or give any facts concerning his record.
Nor is any effort made to promote the election of the men approved at
such bar primary. Where a large number of judges are to be selected
by an electorate of several hundred thousand, the bar primary is very
weak indeed in its function of giving information to the politically
ignorant voter.

Practical experience would seem to indicate that altruistic efforts to
enlighten the political ignorance of the voter who is an intelligent
man, to be effective at all, must consist of non-partisan, direct, and
personal criticisms of candidates’ qualifications and records. Even
then not much can be done unless the election is for a single important
office and the election district is wieldy[6] in size. Whenever the
candidates about whom the voter is to be informed are only four or five
out of two or three hundred running for fifty different offices, the
information and criticism lose much of their force. If the altruistic
effort were directed toward informing the electorate about candidates
for unimportant and inconspicuous offices, not only would funds fail to
be forthcoming, but its voice would be unheeded and unheard. Thus the
limitations upon the effectiveness of the efforts of altruistic voters’
leagues are very definitely fixed.

Of course, newspapers wield a great influence in elections, even when
partisan in the dissemination of news regarding candidates and in their
comments upon the news. But this exhibition of partisanship occurs
largely with reference to the head of the ticket or to candidates
for two or three of the most important offices. The influence of a
newspaper in advising and directing the voter how to vote when he
is ignorant of the qualifications of the candidates and has heard
no public discussion in regard to them, depends upon much the same
considerations as does the influence of the altruistic voters’
league. To be an effective adviser to the voter as to candidates for
subordinate offices, about whom there is no public discussion, a
newspaper must be to some extent at least non-partisan. It must be
direct and explicit in its recommendations and characterization of the
candidates. It must concentrate its efforts on some one point in the
ballot and let everything else go. These rules are as a matter of fact
regularly observed by newspapers. The practice of them very much limits
the actual scope of a newspaper’s power as an adviser and director of
the politically ignorant voter.


FOOTNOTES:

[6] I.e., “one not so large but that the candidate who is willing to
run may be known with a fair degree of ease by the electorate and be
able with the least expense to make a personal canvass” (see chap. xii,
p. 148).




CHAPTER VI

ABOLITION OF THE PARTY CIRCLE AND PARTY COLUMN


In a rough way it has long been perceived that the party circle and
party column on ballots are a vital part of the machinery necessary
to direct the politically ignorant voter how to vote. If the voter is
not only politically ignorant but also illiterate, the party circle
is about all he can use, and only by directing his attention to that
can he be told what to do. If the politically ignorant voter is an
intelligent man he needs the party column at least so that he may
take its suggestion when he attempts to vote for candidates about
whom he knows nothing. It is not strange, therefore, that, in the
war on politocracy, the abolition of both the party circle and the
party column have been proposed. The more remarkable fact is that
such a proposal has received so little support. The fact is that with
our long ballots the abolition of the party circle and the party
column would result either in a clumsy restoration of the party column
by the furnishing of party lists to the individual voter, or else
in a disfranchisement of the voter so startling and complete, and a
governmental chaos so much more inimical to good government than the
extra-legal politocracy, that popular support for such a movement has
been generally withheld.

[Illustration: SPECIMEN BALLOT. 10th Congressional, 7th Senatorial
District.]

Imagine, for instance, the party circle and party column abolished
for the state and local offices on the long ballot in Cook County
reproduced, _ante_, opposite p. 29. We should then have a ballot with a
single column to fill 34 offices, with 181 candidates, the Republican,
Democratic, Prohibitionist, Socialist, Social Labor, and Progressive,
all lumped together. The large majority of voters could not rely upon
their own knowledge of the candidates to make an intelligent choice.
The burden upon the voter is too great. If the electorate voted at
random there would arise a political chaos in officeholding. The voter
would be least likely to do this. If the voter felt he could not vote
at all he would be plainly and utterly disfranchised. The voter would
undoubtedly enter the voting booth with a party list in his hand as the
most rational method of securing advice as to whom to vote for. That
would be in effect a restoration of the party column which had been
abolished. No wonder then that popular sentiment cannot be aroused over
the general abolition of the party circle and the party column where
the excessively long ballot is placed before large numbers of voters at
frequent intervals.




CHAPTER VII

THE PRIMARIES


Upon the first appearance of the professional adviser and director to
the politically ignorant voter he became a power in the presentation
of candidates for election. It was indeed an essential part of his
business in advising the voter how to vote that he should furnish
him with a candidate for whom the adviser and director could vouch.
At first the adviser and director of the politically ignorant voter
named only candidates in the smallest governmental districts. But as
the power and influence of the vote-directing organization spread to
larger and more important governmental areas its leaders continued to
control the nomination of candidates for office. At first the friends
of the electorate sought to meet the formidable advantage which the
vote-directing organization possessed by reason of its power to
control party nominations by laws which permitted the nomination of
independent candidates by petition. Of course, if the law provided
that no candidate should appear on more than one ticket, independent
nominations were likely to be very much discouraged. But even when the
election laws were most liberal in permitting independent nominations,
the vote-directing organizations were still able to hold the field
against all but the most violent and revolutionary independent
movements. In short, unpopular government by politocrats was still
reasonably safe.

There were two reasons for this. In the first place, the vote-directing
organization exists and prevails because the voter is ignorant with
respect to the personality and qualifications of candidates for
office. He must be advised and directed how to vote. The independent
movement simply matches the strength of a temporary and sporadic
effort to advise and direct the unorganized and inflamed but still
ignorant voter how to vote, against a permanent and well-organized
vote-directing machine. In the long run the latter will prevail.
Secondly, the permanent organization for directing and advising the
politically ignorant voter has always secured possession of a revered
party name. This has heretofore given it an overwhelming advantage. It
makes every independent an apostate of some party. So great has been
the good-will of the two principal national parties in the last fifty
years that independent movements have been confined largely to local
elections, and even then it is difficult to obtain candidates because
of the fear of party irregularity. Of these two reasons clearly the
former is the more important. The two principal national parties of the
last half-century might cease, but if the voter remained politically
ignorant as before, extra-legal government would still go on. On the
other hand, if the voter could be made politically intelligent at all
elections and in filling all offices from the candidates presented,
then extra-legal government would have to go and party names would not
militate seriously against independent movements.

Nevertheless, when the friends of the electorate came to appreciate
the failure of independent movements to make headway against the
extra-legal government they did not plan to attack the fundamental
difficulty of enlightening the voter’s political ignorance. Instead,
they did as they had done before and sought a cure by attempting
to eliminate the superficial and obvious cause. Mr. La Follette in
Wisconsin thought that he could have no political success unless he
continued to be a member of the Republican party. As matters stood,
however, he could not obtain the nomination from that party because
it was controlled by men who did not want him in office. Yet Mr. La
Follette was more popular with the electorate who usually voted the
Republican ticket than were the gentlemen who controlled the use of
the party name. The obvious move for Mr. La Follette was to take the
control of the party name from those who held it. This he did by
means of legislation which permitted any candidate who could secure a
plurality of votes of the Republican party voters at a primary election
to use the Republican party name in the election for the office.
This was merely a legal and orderly way of depriving an extra-legal
government of the advantage of using a revered and popular party name.
That is the proper function of a primary election law.

The availability of the primaries might, of course, have been limited
to situations such as Mr. La Follette created in the Republican party
in Wisconsin--namely, when an independent in the party wished to
wrest the control of the party name from an extra-legal government
which had lost the confidence of the party electorate. If so limited
its use would practically have been confined to the occasions when
a well-organized revolt was in progress against the wing of a party
in control of the party name. Such occasions would be infrequent
because such revolts are infrequent. Extra-legal government having
become established and having obtained control of the party name,
the tendency would be to let the matter alone. Small uprisings in
regard to nominations for some particular office might occur, but a
well-organized, persistent, and ably led revolt such as Mr. La Follette
has conducted in Wisconsin is the event of a generation. Illinois, and
no doubt many other states, are just as much in need of the leadership
of a man like Mr. La Follette as Wisconsin. But no such leader appears.
None seems likely to appear. Our state lines have very effectively
excluded Mr. La Follette’s efforts from every state in the Union except
his own. The use of the primary as a means of permanently and wholly
depriving an extra-legal government of its power to control the use of
a party name must be regarded as unusual and extraordinary and not at
all likely to occur.

The use of primaries, however, has not been limited to occasions
when an organized attempt has been made to deprive the minority of
a party of the use of the party name. Instead, primaries have been
made compulsory and applied to the nomination of practically all
elective officers. They must be gone through with, although there is no
organized revolt against the usual nominating authority. This extreme
application of the primaries has been justified on the ground that
the holding of primaries would operate automatically and regularly
on all occasions to rid the electorate of control of the extra-legal
government. Again, we have had a popular application of the theory that
the cure for the ills of democracy is more democracy. If the number of
appeals to the electorate which we had before the primaries did not do
any good, we must have double the number of appeals. The futility of
this course will be observed no more clearly than in the operation of
the universal and compulsory primary.

Under the usual circumstances of normal conditions, when no organized
revolt is being led against it, the extra-legal government will as
effectively control the results at primaries as it does results at
elections themselves. The permanent organization of advisers and
directors to the politically ignorant voter will, of course, have a
slate of candidates for nomination, just as it provided a slate of
nominees under the convention system. There may be some independent
candidates for nominations. Most frequently, however, these are obscure
individuals who try for a nomination on the theory that they are no
more unknown than the slate candidates. The voter’s burden has been
doubled. Consequently his political ignorance, both at the primary
election for candidates and at the election itself, is probably greater
than it was at the election for office alone. At all events, the
voter comes to the primaries (if he comes at all) just as ignorant
of the personality and qualifications of candidates for nomination
as he formerly did of the candidates for office. His ignorance may
be so apparent that he does not vote at all. Perhaps he votes only
for a few names that he happens to recognize. In either case his vote
is negligible. The effective voter at the primaries is the one who
votes for candidates for all places. He must, however, as a result
of his dense political ignorance, vote the way he is told. As usual
the most effective force for telling him how to vote is the permanent
organization of advisers and directors to the politically ignorant
voter. It is that organization which will most often carry the primary
election which nominates candidates for most of the offices. In short,
the extra-legal government will influence and control the results
of the ordinary primary just as it has influenced and controlled the
results of ordinary elections. It is only in the language of the stump
that the primaries enable the people to nominate. While an extra-legal
government exists the people can no more nominate at primaries than
they can choose at elections. Such precisely has been the experience
in Cook County, Illinois. There, from the time the primaries first
went into effect, the leaders of the two principal vote-directing
organizations have made slates more or less secretly, secured the most
favorable position for the slate on the primary ballot, pushed the
slate at the primaries, and obtained the nomination in practically
every case of the slate candidates. In primary elections we have an
appeal to voters on matters apparently less important and conspicuous
than the filling of the offices themselves. If the vote-directing
organization can in the long run control elections to a majority of the
offices, it can certainly in the long run control the nominations for
those offices at the primary election.

We must not overlook one great advantage to the extra-legal government
in making nominations at primaries instead of at conventions. In the
convention the leaders of the extra-legal government were so openly
and publicly the makers of nominations that they were in a degree
responsible. They had to consider very carefully the popular temper
in giving each candidate a place on the ballot. Under the primaries,
however, the result is, in the language of the stump, “the judgment
of the people.” If, therefore, any black sheep slip into nominations
for obscure places it is the fault of the people, just as it used to
be the fault of the people when bad men were elected to office. The
popular demand, however, for primaries is a confession that elections
did not produce the choice of the people. Before long, experience with
universal and compulsory primaries to make nominations for long ballots
will indicate that they do not produce nominations by the people.

Not only is the compulsory primary for all elective offices entirely
ineffective to break up the power of the extra-legal government to
direct the nomination of its loyal adherents, but in the long run
its presence exaggerates the very condition which necessarily causes
the existence of a centralized extra-legal government controlling
a decentralized legal government. That condition is the burden of
political duties cast upon the voter which he will not and very likely
cannot possibly carry. It is that which makes him politically ignorant
and forces him to fall back upon the assistance of the professional
political adviser. When the primaries double the burden on the voter
they increase twofold the necessity for permanent organizations for
directing and advising the politically ignorant voter how to vote.
Consequently, so far from disrupting an extra-legal government, the
universal and compulsory primary makes its continued existence even
more certain.




CHAPTER VIII

THE INITIATIVE AND THE REFERENDUM


Nicholas Longworth, when congratulated on his election to Congress,
is reported to have said: “Election! I wasn’t elected; I was
appointed.”[7] This contains a very real truth. As the power of the
extra-legal government has increased it has gained a large and in
some instances predominant influence in our legislative bodies and
particularly the state legislatures, through its power to appoint
members who would be loyal to it. Once obtained this influence may be
used to protect certain interests from legislation which they do not
want, but for which there may be a proper popular demand. It may be
used also to promote legislation which the electorate is against or
would be against if it understood the situation. When such a condition
of affairs exists and becomes widely known, we have a demand for the
initiative to compel the enactment of laws which the majority of the
electorate wants but which the legislature will not pass. We have also
a demand for the referendum to veto acts which the legislature has
passed but which the majority of the electorate does not want.

Of course, in extraordinary and unusual situations, when the electorate
is organized and led against some attempted act of the extra-legal
government, the initiative and referendum may be used to defeat and
discomfort the latter. But that is not a normal situation. It is the
extraordinary and unusual occurrence. The real effect of the initiative
and the referendum on the extra-legal government cannot be determined
with reference to abnormal circumstances. It must be looked at in
connection with normal everyday events. The usual and normal situation
is that of political quiet. The extra-legal government governs from
day to day and from election to election. The placing on the ballot
at any election of a number of acts to be initiated or approved on a
referendum adds more burdens to the already greatly overloaded voter.
He must now read over the acts, study their details, and understand the
ultimate effect or possibilities of certain clauses. The legislation to
be considered by the voter may be of relatively small importance to the
majority of the voters, or the desire of the majority for the general
object may be so great that the means are not to be considered. The
ballot may contain counter propositions and additional acts upon the
same subject. Some reformers might present one act and the extra-legal
government another on the same subject. When these occasions arise,
one thing we may be certain of: the average voter will be most densely
ignorant of what it is all about. Who, then, in the usual case will
have the privilege of directing him how to vote? Why, of course,
the same organization that directs the voter regularly how to cast
his ballot for candidates for office. The power of the extra-legal
government to advise and direct the politically ignorant voter how
to vote will be just as effective in the normal election to carry or
defeat an act on an initiative or referendum as it is to place men
loyal to it in the offices of the legal government.

The initiative and the referendum, then, while they may at times give
the righteous a desirable advantage, will in normal conditions place in
the hands of the extra-legal government the opportunity to secure the
passage of undesirable laws or to defeat good ones and to insist for a
time at least that this is “the judgment of the people”; just as for
years they have declared that when the system of frequent elections for
many offices produced undesirable officeholders, it was the result of
the will of the people.


FOOTNOTES:

[7] George Kibbe Turner, “The Thing above the Law,” _McClure’s
Magazine_, XXXVIII, 575.




CHAPTER IX

THE RECALL


What has been said of the initiative and the referendum is almost
precisely applicable to the recall.

The movement for the recall began just as soon as it was generally
perceived that our system of frequent elections to fill a large number
of offices did not prevent the extra-legal government from placing in
office men loyal to it. The movement for the recall is the frankest
admission that this system of elections has been a failure. The real
cause for this failure was the fact that too much voting had overloaded
the voter and his resulting political ignorance had delivered him into
the hands of an organization which in effect cast his ballot for him.
Again, however, this was entirely neglected, and the superficial and
obvious remedy was put forward of having a new election whenever it
was discovered that an officeholder was objectionable because of his
subservience to an extra-legal government. The statutes, however, do
not undertake to submit to the electorate the question whether the
officers subject to the recall elections have been too subservient to
the extra-legal government and that alone. Instead, the voters may cast
their votes for the recall of an officer on any ground they please.

If there is an organized and effectively led revolt against extra-legal
government, then obviously the weapon of the recall may be of great
service. It will enable the attacking party to sweep out of office
adherents of the extra-legal government who would otherwise have held
until the next election, when the tide of popular sentiment in favor
of the attack might have begun to ebb. But revolts are not at all
frequent. There has always been an opportunity at regular elections for
such movements through independent nominations by petition. A revolt
of any consequence would have undertaken to use this method. In spite,
however, of the opportunity thus afforded, the general revolt against
extra-legal government in local districts is the occurrence of a
decade, if not of a generation.

It is the effect of the recall under normal circumstances, when no
revolt against extra-legal government is in progress, that must
principally concern us. At such times the recall is more valuable to
the extra-legal government than it is to the electorate at large.
The recall is as available to the extra-legal government as it is to
the electorate at large. In fact, the extra-legal government must of
necessity become familiar with its use. Every officer of the dummy
legal government must, therefore, at all times act with the knowledge
that the extra-legal government may start a recall election against
him. Imagine what this means to the host of subordinate officers that
were put in apparently by the electorate, but of whom the electorate
never had any knowledge whatever. They have no popular following.
They have no money with which to advise and instruct the voters of
the character of the fight that is being made against them. What
possible chance would such officeholders stand against the permanent
organization of advisers and directors to the ignorant voter which the
extra-legal government controls? The recall under normal, everyday
conditions would place the majority of officeholders even more
completely in the control of the extra-legal government than they are
now.

The recall, if applied to the judiciary, would in usual and normal
times operate to give the extra-legal government the same power over
the judges that it would have over other officeholders.[8] A judge
is one of the most helpless of all elective officers. He can run
on no platform; he can have no political program. He cannot point
dramatically to any achievements on behalf of the people. Whether
he is a good judge or not is a matter of expert opinion that only a
comparatively few persons are competent to pass upon. His reputation
can be easily blasted by the circulation of false statements. He may
even be hurt by the performance of his duty in a particular case. His
retention in office at elections is in a great number of instances
purely a matter of accident. If he is up at a fall presidential
election, his retention in office will practically depend upon the
success of the national party in whose column his name happens to be.
It will make little difference whether he has been one of the best
judges that the county or state has ever had, or one of the worst.
Elections place the judge very largely at the mercy of the extra-legal
government. That government may not be able to return him to office,
but the judge knows that without its support his re-election will
become practically impossible. To give the extra-legal government the
opportunity to use the recall upon a judge is to hold above the judge’s
head at all times the threat of an extra election which he is in no
wise prepared to undergo. Nothing could more clearly increase the power
of the extra-legal government over the judiciary. If the recall of
judges be advocated on the ground that they have become subservient to
the politocrats, the conditions which have caused them to become so
will have been greatly increased by the very device which is advocated
as a means of ridding us of that subserviency.

We may conclude, therefore, that there is no more danger to extra-legal
government in the recall than there is in frequent elections and
independent nominations by petition. On the other hand, the free use,
or freely threatened use, of the recall by the extra-legal government
will give it a power over officeholders and judges greater than that
which it now has.


FOOTNOTES:

[8] See _post_, chap. xvii.




CHAPTER X

INDEPENDENT MOVEMENTS AND THE NEW PARTY


Independent movements have been launched in different localities
from time to time. These have been prompted by the too open and too
violently selfish use of power by the extra-legal government. They
have often been temporarily successful. But they have been available
only upon extraordinary occasions and have proved of merely temporary
effect. In the first place they did not develop any organization
of professional advisers and directors to the politically ignorant
voter. They did not continuously put forth the effort to establish a
centralized extra-legal government which the condition of decentralized
legal government demanded. Secondly, the independent movement suffered
under the disadvantage of operating in opposition to the candidates of
the two great historical parties--the Democratic and the Republican.
This was an almost insuperable obstacle when the local, state and
national elections were held together.

One of the important independent movements of the last fifty years is
that which brought into existence the Progressive party. The spark
which touched this off was what appeared to a large number of voters to
be the refusal of those who legally controlled the Republican National
Convention to make a nomination for president of the United States
in accordance with the express wishes of a majority of the rank and
file of the party. It was in effect an exhibition of the arbitrary
action of the minority in refusing to carry out the expressed will
of the majority. Those legally in control of the convention were
supported principally by the delegates who had been sent as the result
of the action of local political organizations in the states where
no primaries had been held. Those who did not legally control the
convention were supported by the delegates who were directed by the
majority of the party electorate actually voting in the primaries, to
nominate Mr. Roosevelt. In short, a great independent revolt had been
started in the Republican party at the primaries. In the convention
the popular will was directly matched against the forces, similar in
appearance, if not in fact the same, to those of the usual extra-legal
government. Naturally the efforts of the new party have been expressly
dedicated to the disrupting of extra-legal government in this country.
For the first time a national party has begun to proclaim the fact that
extra-legal government does exist; that it can maintain and exercise
its power against the will of a majority, and that it must be destroyed.

These utterances are of enormous value, but when we look at the
platform of the new party for the ways and means of accomplishing
the result the outlook is not encouraging. We find the new party
approving of the primaries, the initiative, the referendum, and the
recall of officers other than judges. These proposals, as we have
already analyzed them, hold out no promise of permanently disrupting
extra-legal government. It is true the short ballot is advocated,
but as yet there seems to be no clear perception of the connection
between the long ballot, the decentralization of governmental power,
the political ignorance of the voter even when he is an intelligent
man, and the rise and permanent acquisition of governmental power by
the extra-legal government. The short ballot seems to be included in
the Progressive party’s platform, not because it embodies a theory
of government which is entirely opposed to that upon which our state
governments were founded and have been developed, but because it is
one of several panaceas and because of its superficial and obvious
appeal. The Progressive party does not reveal itself as yet ready to
assume a theory of government which lies at the basis of the short
ballot and which insists upon the centralization of governmental power
exercised in subordination to the popular will, as distinguished from
the decentralization of governmental power exercised in subordination
to the influence of an extra-legal government not readily answerable to
the popular will.

If our state governments remain as they are with only such alterations
as come from a shorter ballot, the primary, the initiative, the
referendum, and the recall, extra-legal government will not be
eliminated. The Progressive party must then either cease to exist,
as so many other lesser independent movements have done, or it must
acquire an organization precisely such as the old parties have had.
It must acquire the same multitude of legal vote-directing machines,
the same feudal hierarchy of politocrats, and by this means establish
an extra-legal centralized government to run the decentralized legal
government. Whichever happens, the new party, as the champion of the
power of the electorate against the power of the politocrats, will
have failed. The new party is indeed doomed to failure unless it
can so change our theory of government and induce the making of new
governmental arrangements pursuant to that theory, that extra-legal
government on its present grand scale will no longer be possible.




CHAPTER XI

THE SECURITY OF EXTRA-LEGAL UNPOPULAR GOVERNMENT BY POLITOCRATS IN THE
UNITED STATES


Extra-legal unpopular government rests fundamentally upon the fact that
a few are able to cast the ballots of the voters for them. This is
accomplished through the process of advising and directing the voter
how to vote. The opportunity to do this at all is presented whenever
the voter is politically ignorant and still insists upon voting with
an apparent show of intelligence. The opportunity to advise and direct
the voter how to vote is presented on a large scale when the entire
electorate, no matter what its average intelligence may be, is made
politically ignorant concerning a majority of the candidates for
office. The decentralization of governmental power, as manifested in
the multiplication of elective offices and the frequency of elections,
has placed upon the voter--even when he is a most intelligent man--a
burden which he does not and practically cannot carry. He therefore
goes to the polls politically ignorant and the essential condition
is presented upon which the rise and establishment of an extra-legal
unpopular government rests. It may be observed, therefore, of all
efforts to disrupt and destroy a system of extra-legal unpopular
government, that so long as the assault upon it consists of a more
frequent appeal to the electorate on occasions of ever-lessening
importance, the more the assault will in reality contribute to the
condition which makes the existence of some extra-legal government
unassailable.

The growth and security of extra-legal unpopular government rests
upon the increase of the political burdens upon the voter. Every
political theory, every governmental bogey, and every practical
innovation which tends toward the multiplication of elective offices,
the frequency of elections and the consequent decentralization of the
power of government, whether state or local, must be advocated and
encouraged by the politocrat. Every effort must be made by him to
foster and maintain the popular conviction that the centralization and
concentration of governmental power in the hands of a few, even though
those few hold office as a whole at the mere whim and pleasure of a
majority of the electorate, is the real basis of unpopular government
and inimical to free institutions. He must make every effort to foster
and maintain the popular conviction that the only hope of popular
government and free institutions lies in as many appeals to the
electorate on as many occasions as possible. This idea may be conveyed
in convincing and epigrammatical form by repeating the wisdom that the
cure for the ills of democracy is more democracy. The electorate should
never be allowed to forget that by reason of the constant appeals to
them they are ruling, and that whatever happens they are responsible.

In short, the security of unpopular government lies in the maintaining
of the popular conviction that our present constitution and laws are
sound. The bulwark of unpopular government in the United States today
is the man who believes that our institutions are fundamentally
satisfactory; that in the main our scheme of government is the best
that was ever devised or can be devised; that it is the fault of the
electorate that bad men are in office; that the electorate at the last
election put the machine out of business, or came near it, and is going
to do better the next time; that if the machine is not disrupted,
then the people themselves are at fault and richly deserve what they
get; that if any improvements are needed they will be found in the
more frequent appeals to the electorate through such devices as the
primaries, the initiative, the referendum, and the recall. Extra-legal
unpopular government must encourage men of this stamp and teach these
fundamental principles to its supporters. While such men represent the
views of the masses extra-legal unpopular government will be safe.

Unpopular government in the United States will be secure until our
present popular convictions about the science of government are
reversed and popular and persistent opinions prevail that the ability
of the electorate to vote intelligently is limited; that the moment the
voter is called upon to fill any other than a few offices which wield
great power and are therefore conspicuous and important, he becomes
politically ignorant, even though he be an unusually intelligent man;
that it makes no difference that this may be his fault, for the fact
remains and will remain; that it is this artificially stimulated
political ignorance of the voter that delivers his vote to a permanent
organization maintained for the purpose of directing him how to vote;
that to prevent this artificially stimulated political ignorance on the
part of the voter he must be called upon to exercise such a limited
voting power as he is able to use with intelligence. This means that
the power of government must be centralized and concentrated in the
hands of a few officeholders of the legal government who are prevented
from perpetuating their power and so establishing an unpopular
government by being at all times subject to be ousted or kept in
office at the pleasure of the majority of the electorate. The moment
the real government, be it legal or extra-legal, can be swept out of
office as a whole at a popular election easily initiated, which makes
the existence and action of the real government a direct issue, the
most effective means yet devised for preventing a real government from
becoming unpopular--i.e., maintaining the selfish exercise of power in
the face of popular disapproval--has been found. When these principles
of government are received by the masses with the same conviction
that they now support the theory of government that a minimum amount
of power should reside in any one officer or department of the legal
government and that appeals to the electorate should be upon as many
matters and as often as possible, the downfall of extra-legal unpopular
government will be imminent.




CHAPTER XII

THE MENACE TO UNPOPULAR GOVERNMENT OF THE COMMISSION FORM OF GOVERNMENT
FOR SMALLER CITIES


It took a flood and a hurricane which overwhelmed a prosperous city to
reverse the popular convictions which lie at the basis of government
in the United States. In 1900 Galveston was all but destroyed by the
waters of the Gulf rising during a hurricane. Confronted with a great
emergency in which quick and efficient action was imperative if the
city was to be restored at all, the people abandoned the fear of kings
and of centralized governmental power. The entire municipal power of
government, executive and legislative, was vested in a single board of
five commissioners. These were both the legislature and the executive.
They made the ordinances and wielded the executive power through
subordinate officers appointed by them. The governmental principle
which was thus applied in the commission plan is the concentration
of governmental power by the union of the legislative and executive
functions of government in the hands of a few[9] who are controlled
and prevented from becoming an unpopular government because they are
subject to the electorate through elections at frequent intervals. The
office of commissioner was made conspicuous and elections interesting.
The population of Galveston was about 40,000. Hence the entire city was
not so large but that a candidate might be personally known with a fair
degree of ease by the electorate, and with the least possible expense
make a personal canvass. It was, in short, a wieldy district. Hence
the coming forward of candidates was increased to the maximum, and the
need for a vote-directing machine practically eliminated. The maximum
amount of thought and intelligence was obtained from the voter because
his attention was concentrated on filling a few important offices.
Excessive and artificial political ignorance was thus diminished.
The ultimate result was a real expression of the will of the
electorate through the representatives chosen and full power in those
representatives to enact that will into law and also enforce the law
thus made. In actual operation the results of applying this principle
left little to be desired in Galveston. Here are the comments of a
keen observer,[10] writing in 1911:

 To Americans accustomed to inefficiency in public office as contrasted
 with private enterprise, the story of the achievements of this
 Commission reads like a romance. Unhampered by checks and balances
 and legal red-tape, the Commission reorganized the city government,
 restored the city property, planned and financed and built the
 great sea-wall that now bars out the sea, raised the ground level
 of the city, and, withal, reduced the tax-rate and the debt! The
 annual running expenses of the city were decreased one-third. The
 new government displayed foresight, intelligence, and dispatch. It
 appeared sensitive to that public clamor which the average politician
 considers so needless.

 There was striking change in the attitude of the public toward the
 doings at City Hall. The people began to “take an interest” in their
 common property, to discuss the doings of the Commission on street
 corners, to have “civic pride” (since there was now at last something
 to be proud of), to criticize or applaud the work of their servants.
 They seemed to have actually a proprietary interest in the government!
 Amid this widespread discussion the influence of the politicians of
 the town was swamped and counted for only its true numerical strength.

 Now every American city has its spells of good government--the
 reactions that follow orgies of corruption and scandal--and the
 fact that the new Galveston government saved money is not in itself
 significant. The vital difference is that these good administrators
 in Galveston, without building up personal “machines” or intrenching
 themselves in power by the usual army-like methods of political
 organization, were able to secure re-election again and again. They
 won favor by serving all the people well. They did their work in the
 spot-light of public scrutiny, where every citizen could see and
 appreciate and applaud.

Unless, however, the fundamental principles at the basis of government
by commission are observed and applied, there can be much apparent
commission form of government for cities which will not in any way
militate against extra-legal unpopular government.

If, for instance, a municipal government by commission is planted
in a territory where several other municipal governments are also
operating, each with a long list of elective officers, very little
has been accomplished toward that centralization of governmental
power in a few commissioners which tends to eliminate extra-legal
government. Each of the municipal governments operating in the same
territory will divide the entire local governmental power among
them. The decentralization of governmental power will still exist in
exaggerated form and the political ignorance of the voter must still
be such that he will need to be advised and directed how to vote, and
the professional adviser and director to the politically ignorant
voter will still continue to satisfy that need. Once the professional
adviser and director to the politically ignorant voter is retained in
the district where the commission form of government operates, he will
begin to exercise an influence in the nomination and selection of the
commissioners. Extra-legal government as conducted by him may even
capture a majority of the commissioners and use the great governmental
power vested in them in a scandalous manner. The present situation in
Chicago well illustrates this danger. There the municipal government
is very highly centralized. The voter casts his ballot only for a
mayor every four years, a city clerk and the city treasurer every two
years and two aldermen from each of the 35 wards--one alderman being
selected from each ward every year. The other administrative officers
not under civil service are appointed by the mayor with the consent
of the council. If Chicago were the only local government in the
territory which it occupies it would be a fair type of responsible city
government wielding a highly centralized governmental power. Machine
politics would thrive only in the districts where the majority of
the voters were illiterate and where corrupt and illegal voting was
practiced on a considerable scale. But operating in the same territory
with the city of Chicago is the Sanitary District with 9 trustees,
and Cook County with 73 elective officers. It is the long ballot for
Cook County which causes the densest political ignorance on the part
of the voter and makes the existence of the professional adviser and
director of the politically ignorant voter necessary and therefore
the existence of extra-legal government certain and permanent. Such
an extra-legal government, when once established, naturally exerts a
great influence even in city elections. If the two principal party
vote-directing machines agree to divide the city and county governments
between them and each helps the other to appoint those who are to fill
the legal offices in that government which it is agreed each shall
control, the power of extra-legal government in the city will be very
great indeed. In the same way, if a commission form of government
be provided for smaller cities which must divide governmental power
with a township government, a county government, and a drainage or a
levee district, all operating in the same territory and all having a
considerable list of elective officers, there is little hope for a real
trial of the effect of the concentration of governmental power in a
few elective offices to disrupt extra-legal government. It is of the
utmost importance to the success of the commission form of government
for smaller cities that such government be the only local government
operating in the territory occupied by the city.

In some cases, however, it is necessary that municipal corporations
with special powers and functions and collecting taxes from a special
district for a special purpose should occupy territory in which several
other units of municipal government operate. For instance, the Sanitary
District in Cook County properly levies taxes upon property in the
city of Chicago and in part of Cook County, and builds a canal running
through Cook County and Will County. How is it possible to avoid having
the commissioners of such a sanitary district elected from the district
where its revenues are obtained? The answer is very simple. Such
commissioners should be appointed by the different municipal units of
government occupying the territory included in the sanitary district.
The city of Chicago, of course, should appoint the majority of the
commissioners. The municipal governments outside the city of Chicago
should be combined together in groups and the legislative bodies of
the municipalities in each group be given a voice in the selection
of commissioners for the Sanitary District. The same principle of
appointment may be adopted whenever a special board with special
functions is to occupy territory which includes several units of local
government.

The effectiveness of the commission form of government for cities to
oust extra-legal government requires the election of each commissioner
from a wieldy district, i.e., one not so large but that the candidate
who is willing to run may be known with a fair degree of ease by the
electorate and be able with the least expense to make a personal
canvass.[11] The supposed advantage of electing commissioners at large
from an unwieldy district is that this method insures the candidacy
and election of men prominent in the entire district and hence more
fit to hold office. But this is precisely what it does not do. It is
true such a plan _demands_ candidates with a wide general reputation
in the whole district. But such candidates do not come forward simply
because the method of election suggests that such candidates should
appear. Men with wide reputations in a large district are almost
certain to be occupying offices of greater importance in the state and
federal governments, or else they are not available at all for the
holding of public office. The leading citizen will not as a rule be a
candidate for a position in the municipal government. The available
candidates are almost sure in the long run to be men whose reputations
are confined to some district of the larger community. When they run
for election in a district which stretches beyond the zone of their
personal influence and reputation, some machinery for enlightening the
voters’ ignorance as to who they are and what they stand for must be
devised. This means that the candidate must have money and backing.
Those requirements may seriously limit the number of candidates and
therefore the choice of the voter. Furthermore, in promoting slates of
candidates care will usually be taken to select men with reference to
particular districts in the community at large, so that each district
will feel that it has a representative on the ticket. Thus a provision
for the election of commissioners at large from an unwieldy district
is likely to relapse in practice into the presentation of candidates
representing small districts, each with a local reputation in his own
district. This becomes in substance an election of commissioners from
districts and yet the range of choice by the voter resulting from the
coming forward of candidates will be very much restricted because
of the expense of making a canvass in the unwieldy district and the
necessity for an organized support. Candidates who are successful in
being elected from the unwieldy district are likely to be beholden to
an organization, whether it be temporary or permanent, which has aided
them in the election. A system of electing commissioners at large from
an unwieldy district in a greater or less degree produces a condition
which tends to keep alive the extra-legal government. On the other
hand, with elections in wieldy districts the number of candidates who
come forward is the largest possible. The choice of the voter is,
therefore, the widest. Each candidate may become most easily personally
known to the electorate. The sharp contest between individuals in a
small district is always peculiarly enlightening to the electorate
and stimulating to his interest in political matters. The expense of
a canvass may, therefore, be reduced without lessening the amount of
knowledge which the voter will obtain regarding issues and candidates.
The services of an extensive organization for the purpose of directing
the politically ignorant voter who to vote for would naturally give way
to organizations for dispensing actual knowledge concerning candidates
and conditions. The services of a highly developed and permanent
machine designed to direct the politically ignorant how to vote must
become of the least possible value.

The practice of the principle of selecting commissioners from wieldy
districts may take several forms, depending largely upon the size of
the electorate.

If the whole city is not more than a wieldy district in itself, then of
course the election of all the commissioners at large is in accordance
with the sound principle announced. Such election may very properly be
according to any one of several plans.

_First_: The candidates to the number of commissioners to be selected
receiving the highest vote at a single election may be declared
elected, although none receive an actual majority of the votes cast.
This is the simplest method. It is the one in use at Galveston, with a
population of about 40,000, and seems to have given satisfaction.

_Second_: The commissioners elected at large may be required to receive
an actual majority. If there are more than two candidates for each
place, this may be secured at a single election by the voters marking
their first and other choices for each of the places to be filled, so
that if no election is had by a majority according to the first choice
of the voters, the second and other choices may be used to indicate
which ones receive an actual majority. Or a second election may be held
at which only candidates in double the number of places to be filled
who have received the highest number of votes at the first election
are placed upon the final ballot. The second election may be required
even though candidates receiving the highest votes at the first
election actually receive a majority. This last is the plan adopted,
apparently with good results, in Des Moines, Iowa.[12]

_Third_: Then there is the Hare plan of proportional representation and
the single transferable vote.[13] To insure an election a candidate
need only obtain a “quota” of the votes cast--i.e., that number of
votes which can be obtained by the number of candidates equal to the
number of places to be filled, but by no more. Thus if the electorate
number 5,000 and there are 5 places to be filled, the “quota” or number
of votes required for an election would be 834. Five persons could
receive this number of votes, but the sixth candidate could not do
so. Each voter is allowed to indicate his first, second, third, and
other choices, but can indicate only one first choice and one second
choice, etc. At the first count only first choices are reckoned and
the candidates who have received a “quota” or more according to first
choices are declared elected. If all the places have not then been
filled up, the surplus votes of those candidates who have received
more than the “quota” are transferred according to the names marked
(2) on them. If these transfers do not bring the requisite number of
candidates up to the “quota,” the lowest candidate is eliminated and
his votes transferred according to the next preference, and so on
until all the places are filled. The object of this plan is to give
representation to minorities or to groups less than a majority.

So far as the disruption of extra-legal government by politocrats is
concerned, it is doubtful if it makes any difference which of the above
plans of election be adopted in commission-governed municipalities
which as a whole constitute only a single wieldy district of, let us
say, not to exceed 6,000 male voters and 50,000 inhabitants.

Suppose now the municipality be larger than a single wieldy district,
but still small enough so that it is very plainly a unit in its
interests and collective activities--let us say a city with not to
exceed 25,000 male voters and a population of not more than 150,000.
Here there will be a distinct danger in electing commissioners at large
at a single election at which are chosen those who obtain the highest
votes, even though less than a majority. If the choice is to be by a
plurality at a single election the municipality should be divided into
wards with a single commissioner elected from each, but no candidate
should be required to reside in the ward where he stands for election.
The Hare plan is entirely available and consistent with the choice
of commissioners from wieldy districts. In Des Moines, Iowa, with a
population of about 86,000, the double election plan seems to have
been used with success. This may also be regarded as consistent in a
way with the election of commissioners from wieldy districts. True,
a single district with a population of 80,000 might be regarded as
unwieldy for the purpose of a single election. But the double election
secures the same education for the electorate that the voter would
obtain in a single election in a district one-half as large. Hence a
wieldy district having a double election can be considerably larger
than a wieldy district having a single election.

Suppose, however, that the municipality be large enough to be readily
divided into as many wieldy districts as there are commissioners to
the number of from five to nine. For instance, let us assume a city
of to exceed 25,000 male voters and a population exceeding 150,000.
Here the district is too unwieldy for the election at large of those
candidates receiving the highest votes at a single election. It may be
doubted whether the double election will produce satisfactory results
in the way of securing a really intelligent vote. We have probably
come to a situation where the principle of electing commissioners from
wieldy districts requires either a division of the city into wards
with a commissioner elected from each, or else the election at large
of all the commissioners by the Hare plan, in which only a “quota” of
votes is required for a choice. The advantage which the Hare plan has
of permitting the candidates for commissioner to come from any part
of the city can be duplicated to some extent in the ward plan by not
requiring any residence by candidates in the ward of the city where
they stand for election. Under either arrangement candidates will in
all probability come from particular districts and localities where
their strength lies.

It is no part of the writer’s plan to discuss at length the comparative
merits of the system of election from wieldy geographical districts
and wieldy “quotas.” Each has its advantages and disadvantages. The
wieldy geographical district has the advantage of presenting an issue
of extreme simplicity to the voter and inducing interest in it by
the dramatic element of personal contest. The field in which the
candidates contest being limited, there is more concentrated work
upon the education of the electorate and the electorate focuses its
attention. It is not so clearly the fact that in a municipal election a
large minority may be wholly unrepresented as it might be in elections
to a national legislative body. The Hare plan insures minority
representation, or rather representation of different groups throughout
the district. It, however, departs from a desirable simplicity in
voting and vote-counting. It tends to eliminate the sharpness of
personal contest between candidates. Under the Hare plan candidates
will go on a still hunt all over the district for a “quota” and bid
to various classes and cliques in the municipality for first and
second choices. This develops what is called “minority thinking” and
“particularist politics.” The candidates do not run against each other
so much as they dodge in and out about each other. This also tends
to puzzle the voter, confuse the issues, and achieve results which
are unexpected. The test of the Hare plan in cities of over 150,000
inhabitants in the United States is, it is believed, still to be made.

If the principles of the commission form of government be applied
faithfully and completely, there is no doubt that extra-legal
government in its present violent form must go. The voter’s duty
will be simple and he can perform it with the maximum amount of
intelligence. The function of the electorate in voting is vital
because it confers the whole power of the local government upon a body
which is directly responsible to the electorate. What place, then, is
there for the professional adviser and director to the politically
ignorant voter? None! There is no such political ignorance as calls
for a director and adviser. The voter needs only enlightenment as
to which of two honest and fairly efficient men has a program which
the voter on the whole favors. The voter is seeking information of a
highly organized sort. He can obtain that only by the use of his mind
and a consideration of the promises and programs of the candidates.
The candidates now must make an appeal to the voter’s intelligence.
What, then, is the need of the present-day extra-legal government? Of
course, parties and party organizations will spring up, but they will
cease to be mere machines for directing the ignorant voter how to cast
his ballot. Instead, they will become instruments for disseminating
propaganda on social, economic, and governmental issues.

Once the extra-legal government is eliminated by the concentration of
governmental power in the hands of a few, each of whom is elected to
office from a wieldy district or by a wieldy “quota,” the electorate
may with perfect safety secure control of its representatives in a
variety of ways. It may insist upon the recall, the initiative, and
the referendum. It is the promotion of these expedients while the
ballot is still left as long as at present and the governmental power
decentralized as it now is that tends to promote the existence and
security of extra-legal unpopular government. With irresponsible
extra-legal government replaced by a responsible legal government
subject to frequent elections, one might hazard the guess that neither
the recall, the initiative, nor the referendum would be much used.
The primaries would be utterly out of place. No party names would
appear on any ballot. In theory every individual legally qualified for
office would have the privilege of running at an election. Individuals
should be allowed to put themselves up. To discourage the running of
irresponsible persons who have no real chance of election a sum should
be forfeited by all candidates who do not receive a certain percentage
of the vote cast. Parties with principles and programs would naturally
be the only ones which would have any standing. It is highly improbable
that any such parties would exist for municipal elections. If they did,
they should be left free to run their affairs in their own way, since
their candidates must always compete with individuals who wish to come
forward in opposition.


FOOTNOTES:

[9] The question is frequently put whether it is better to have
five commissioners and let them choose their own chairman as a mere
presiding officer, or to provide that one commissioner specially
elected shall be chairman, with special executive and administrative
powers. The two plans represent simply a difference in the degree
with which the executive and legislative powers are united. If one
commissioner is elected specially as a chairman or a mayor, with
administrative and executive duties, and the other commissioners are
merely an advisory board, you have a certain degree of separation
of the executive and legislative functions. The chairman or mayor
must in that case be elected at large from the city. His office will
be so conspicuous and important as to overshadow the offices of the
commissioners, and there will be the probability of deadlocks between
the executive and the commissioners exercising the legislative power.
If, on the other hand, all the commissioners are equally possessed
of the executive and legislative power, there is a complete union of
both functions. The majority of the commission then becomes entirely
responsible, not only for the making, but for the enforcement, of
the laws and administrative measures. So far as the disrupting of
extra-legal government in cities the size of Galveston is concerned,
it is believed not to make any material difference which plan be
adopted. The surer course is that of making the majority of all the
commissioners responsible for the exercise of the entire legislative
and executive powers.

It is entirely in accordance with the principle of the union of
executive and legislative powers in the commission that it hire a
professional municipal administrator to hold office at the pleasure
of the commission and delegate to him such executive duties and
legislative power, subject always to the control of the commission, as
the commission sees fit.

[10] Richard S. Childs, _Short-Ballot Principles_, pp. 66-67.

[11] For a further exposition of a wieldy district see Richard S.
Childs, _Short-Ballot Principles_, pp. 51-58.

[12] John J. Hamilton, _Dethronement of the City Boss_, pp. 158-168.

[13] See _Encyclopedia Brittanica_, 11th ed., XXIII, 115 (from which
the description in the text is largely taken); Richard S. Childs,
_Short-Ballot Principles_, p. 58; Ramsay Muir, _Peers and Bureaucrats_,
pp. 236-39; C. G. Hoag, “The Representative Council Plan of City
Government,” _The American City_, April, 1913.




CHAPTER XIII

THE PRINCIPLE OF THE COMMISSION FORM OF GOVERNMENT APPLIED TO THE
LARGER CITIES


If the city be a larger one, with 100,000 male voters and upward,
and a population of 700,000 to 1,000,000 and upward, its government
by a small commission, each member of which is elected from a wieldy
district, or by a wieldy “quota” under the Hare plan, becomes
impossible. When districts begin to have more than 6,000 male voters
and a population of more than 50,000, or the “quotas” are over 6,000
male voters, they are probably no longer wieldy. Yet a commission of
16 and upward is no longer a body which can exercise legislative and
executive power in a convenient manner, like a board of 5, or even 9.
The problem of the application of the principles of the commission form
of government to the larger cities is therefore this: How can districts
or “quotas” be kept wieldy and the city at the same time be governed by
a small commission having both legislative and executive powers?

One solution of the problem is as follows: The control of the entire
executive and legislative power of the municipality should be vested
in the municipal council. This should be composed of as many members
as there are wieldy districts or wieldy “quotas” in the municipality.
Taking 3,000 voters as making up a wieldy district or “quota,” this
would give a city of 100,000 male voters a council of 33 and a city
of 300,000 male voters a council of 100. This last might be reduced
to 50 if the maximum of 6,000 male voters be taken as the measure
of a wieldy district or “quota.” This council should then appoint
the mayor and perhaps, with the mayor’s approval, the heads of the
departments, all to hold office at the pleasure of the council.[14]
The mayor and his heads of departments should then form a governing
commission or board with such executive and legislative powers as might
be conferred by ordinances passed by the council and subject at all
times to the control of the council. Such a scheme would retain the
system of electing representatives from wieldy districts. There would
rest upon them full responsibility for the exercise of the legislative
and executive power. Yet they would be left free to delegate executive
power and some legislative power to a commission of administrators
whose whole business it was to serve the municipal government. Such
a commission might be composed of the leaders of the majority of the
council or of expert municipal managers brought from any part of the
world, or both. The council should be left free to choose what method
it would adopt.

A plan of government for our larger cities frequently adopted is
this: Single aldermen are elected from each wieldy district in the
municipality. All the aldermen thus selected form a city council which
exercises the legislative power. The mayor is elected at large. He
presides over the city council and, with the heads of his executive
departments who hold at his pleasure, wields the entire executive
power. The new Cleveland charter gives the department heads seats
in the council with the right to address that body. There is here a
proximity of the executive and legislative power, rather than a real
union of it. Whatever union there may be is largely on the side of
giving the executive a position in the deliberations of the legislative
body. The council has no function in the actual exercise of the
executive power. The entire executive power is really concentrated in a
single individual elected at large and holding office for two and often
four years. This feature is in sharp contrast to the vesting of the
executive power in the representatives of wieldy districts or “quotas,”
who control and direct the exercise of that power by a single executive
who holds at their pleasure.

The one plan that should not be attempted in our larger cities is
that of providing for the union of the executive and legislative
functions in a few commissioners elected at large, thereby violating
the essential principle of electing representatives from wieldy
geographical districts or by wieldy “quotas.”


FOOTNOTES:

[14] See Richard S. Childs, “The Theory of the New Controlled-Executive
Plan,” _National Municipal Review_, II, 76 (January, 1913); C. G. Hoag,
“The Representative Plan of Government,” _The American City_, April,
1913.




CHAPTER XIV

THE PRINCIPLES OF THE COMMISSION FORM OF GOVERNMENT APPLIED TO THE STATE


The principles at the basis of the commission form of government for
cities may equally well be applied to a state government.

Our first care must be to eliminate the division of power which comes
from having two legislative chambers, each equally representing the
electorate. The legislative power as it comes from the electorate at
large must be lodged in a single legislative chamber.

In the second place we must provide for the election of members to
this single chamber from “quotas” or districts which are as wieldy
as possible. One member should be elected by each “quota” or from
each district.[15] The requirement that districts or “quotas” which
elect members be wieldy is so important that it must determine the
minimum number of members in the single legislative chamber. If it be
determined that a district or “quota” with 4,000 male voters would be
suitably wieldy, then each district would contain a population of about
25,000, and for a state like Illinois there would be 200 districts.

Lastly, following the commission form of government for cities we must
place the control of the entire executive power in the hands of this
single legislative chamber. In short, we must apply the principle
of uniting the executive and the legislative power in the same body.
How, it will be asked, can this be done? It is essential that the
legislature should have two hundred members so that the districts
or “quotas” may be wieldy. How, then, is it possible to give to the
legislature control of the executive power?

It is believed that the plan of a state executive selected by the
single-chamber legislature and holding at its pleasure, after the
manner of the controlled executive for the larger cities, will not
do. It is true the state executive may not handle so large a budget
as some cities, but the state executive power is not for that reason
less important or extensive. The legislative power of the state, which
is greater than the legislative power of any city, may build up the
state executive functions so that they are quite beyond those of any
city. The state executive functions are, therefore, always potentially
more extensive than those of the city executive. Then in the state
legislature composed of one hundred members or more representing
different political and party programs, there are far greater chances
of a serious deadlock than in a city council. When a deadlock occurs
in the state legislature it may be difficult, if not impossible, to
determine what are the controlling elements in the legislative assembly
if the power of selection is left with the legislature itself. There is
need, therefore, of an independent authority outside the legislature
to select from it those who shall wield the executive power and
thus rescue the exercise of that power from any deadlock among the
legislators.

These considerations lead naturally to the following plan: All
executive acts must be done as now, in the name of a single executive.
But the control of all executive acts must be placed in the hands of
a council of state, to be composed of (let us say) seven members,
who should usually be drawn from the leaders of the regularly voting
majority of the legislative chamber. It will be the important duty
of the single executive to determine who are the regularly voting
majority, and who are its leaders, to summon them to form a council
of state, to determine when those leaders have ceased to possess a
regularly voting majority and, when that occurs, to dismiss them or
accept their resignations and replace them with a council of state
which has at its command a regularly voting majority. Once the council
of state is selected, however, the actual control of the executive
function will reside in it. Thus the real executive is the council of
state, and since it must usually control a majority of the legislature,
it will have possession of the legislative power as well. This is the
neat and feasible scheme for applying the essential principle of the
commission form of government when a large representative assembly is a
necessity. The method of selecting the single executive whose principal
duty it is to place the executive power of the state from time to
time in the control of a proper council of state, selected from among
the leaders of a majority of the legislature, is not very important.
Very likely the only practicable way would be by election at large at
considerable intervals of time.

Very little alteration in our present state constitutions is necessary
in order to bring about the greater part of the change in the plan of
government suggested. The members of the lower house of the legislature
are usually elected from fairly wieldy districts. The union of the
executive and legislative functions is very simply accomplished by
dropping from the list of elective officers the lieutenant-governor,
the secretary of state, the auditor of public accounts, the treasurer,
the superintendent of public instruction, the attorney-general, and
others and adding the following provisions:

 There shall be an executive council to advise the governor in the
 government of the state. The members thereof shall be chosen and
 summoned by the governor and serve as executive councilors. They shall
 hold office during the pleasure of the governor.

 The executive power vested in the governor by this constitution
 shall, unless in this constitution otherwise specified, be exercised
 by the governor acting with the advice of the executive council. The
 provisions of this constitution, referring to the governor in council,
 shall be construed as referring to the governor acting with the advice
 of the executive council.

 The governor may appoint officers not exceeding ten in number to
 administer such departments of the state as the governor in council
 may establish and until such establishment, to administer the
 departments of state, public accounts, treasury, public instruction,
 justice, and state institutions. Such officers shall hold office
 during the pleasure of the governor. They shall be the members of the
 executive council and after the first general election of members of
 the general assembly, as herein provided, _no member of the executive
 council shall hold office for a longer period than three months unless
 he is or becomes a member of either house[16] of the general assembly_.

The necessary result of such changes would be that the governor could
do no important act without the consent of the council. The council
would in fact be the executive. The election which put the governor in
office might be expected to put a majority of the same party in the
legislature, and the executive council would naturally be selected from
the leaders of that majority. Even if the governor and the majority of
the legislature belonged to different parties, yet there would be the
strongest motive for the selection of an executive council from the
majority of the legislature, thus avoiding the responsibility for a
contest between the majority in the legislature and the executive which
would throw the government into confusion.

The complete success of a plan which involves the union of the
executive and legislative power in the leaders of a majority of
the legislature requires the presence in the legislature of some
at least of the leaders of the principal parties. The absence from
the legislature of such leaders would leave the control of the most
important powers of government in the hands of the less experienced
and less able members of the party. The opposition also might have
a less effective representation. This would be a serious matter for
the parties themselves. The public service also would suffer. It is
in the interest of the best administration of the affairs of state
that the ability and experience of the party leaders of both the
majority and the minority be kept in the service of the state as long
as possible. It is also important that the executive and legislative
powers be exercised for the benefit of the state as a whole and not
for the purpose of furthering the parochial interests of individual
legislators. This is most surely accomplished by the presence in the
legislature of the party leaders of the majority. There are several
ways of insuring the return to the legislature of some at least of the
leaders of the principal parties, even when they may not be able to
secure a plurality of the votes cast in the district where they run:
First, candidates for the legislature may be permitted to stand for
election in any district of the state, no matter where they reside.
That does not go far, however, in the direction of returning party
leaders unless elections are held at different times in different
districts. Second, if elections are held at the same time in all
districts the elector might be permitted to vote for a candidate
running in his own or any other district. This would enable the party
to switch some of its votes in a district where it was strong to
special leaders standing for election in districts where their success
was in doubt. This is one of the proposals of the People’s Power
League of Oregon. Third, a direct way of accomplishing the desired
result would be to permit each party polling at least 25 per cent of
the total vote cast at an election for members of the legislature to
appoint as many representatives as the entire party vote contains
tenths of the total vote cast. Fourth, the same result might be
obtained by providing for the election at large of a small number of
legislators by “quotas,” according to the Hare plan.[17]

Now observe the effect of the application of the principles of the
commission form of government for cities to the state government. The
office of legislator has been made important and conspicuous because it
is the only office in the state government (except that of governor)
for which the voter casts his ballot, and because the successful
candidate will cast one of two hundred ballots for the selection of
the real executive. Under such a system it is certain that the voter
will know in advance that a vote for candidate A means a vote for B,
as the real executive or leader of the council of state. Thus a vote
for state legislator will be a vote to confer the entire legislative
and executive power of the state upon a given group of legislators
and their leaders. We have indeed made the voting privilege of the
elector so important that he will not only be sure to vote, but he
may be expected to do much to keep himself fully informed about the
candidates. We have made the act of voting so simple that the elector
cannot fail to use such intelligence as he has and to spend any extra
time which he may have in informing himself further. By providing for
the election of single legislators from wieldy districts or by wieldy
“quotas” we have brought the voter as near the candidates as possible.
By stimulating the number of candidates we have given the voter as
wide a range of choice as possible. These devices all have a tendency
to eliminate the politically ignorant vote. The actual intelligence of
the electorate is given the fullest possible play, and even stimulated
to unusual efforts of comprehension. This is a guaranty, and it is the
only guaranty, against that political ignorance on the part of a large
number of voters which provides the opportunity for the professional
politician to step in and, in the guise of advising and directing the
voter how to vote, in effect to cast his ballot for him. The essential
condition upon which a vote-directing political machine is founded and
maintained has, therefore, been eliminated. Under such circumstances
a vote-directing machine, instead of slipping over, in the darkness
and obscurity which comes from a multiplicity of elections and offices
to be filled, those whom it can control, for ends of which the
electorate does not really approve, must begin to appeal to the voter’s
intelligence with candidates of character, arguments, platforms, and
pledges of legislation which those elected have the power to keep.
Such activities on the part of any organization will at once change it
from a mere vote-directing machine into a legitimate party with real
principles and a real program. The leaders of such an organization
will necessarily stand for election in the real government, which will
now be the legal government. Real party leaders will appear in the
legislature with real party programs for legislation and real party
responsibility.

We have, however, in the scheme of state government presented, not
only done our utmost to destroy at the roots extra-legal unpopular
government, but we have provided a government which can operate. We
have cut off all bickering between the legislature and executive. We
have given power to an executive council which will enable it to do
something. We have constituted a government which will be inactive,
not because its hands are tied, but because it chooses not to do
anything. The leader of the successful party cannot say that he has
failed to keep the party pledges because he had no power to act. No
one, however, need fear that the concentration of power in the hands of
a few will prove in any way dangerous to the liberties of the people.
The council of state can exercise power only so long as it retains the
confidence of a majority in the legislature. Even out of the season
of elections the legislature will necessarily be sensitive to public
opinion, and a council of state that did not consider the effect of
public opinion upon a majority of the members of the legislature could
not long hold power. By frequent elections the majority may be changed
and the council recalled in favor of the leader of an opposition. The
effectiveness of voting will thus be enormously increased, for the
electorate will not have to turn out a dozen different officers at
several different elections in order to change control of the legal
government. Voting at a single election does it. Upon a poll of the
districts or of the “quotas” it is determined whether one set of
legislators or another shall control the executive and legislative
power centered in a single chamber. No government can be unpopular
or an executive council remain in office against the will of the
electorate under such a scheme of government. No government can remain
in office and avoid the consequences of failure and inefficiency when
so organized.

If such a scheme of government does not break the malign influence
of an extra-legal government founded upon a vote-directing machine,
then such a power cannot be broken. If the scheme of government which
has been outlined does not give the electorate a real opportunity to
express its will through its representatives and to make that will into
law and then enforce the law through those same representatives, then
our attempt to achieve representative government will have failed and
we shall have been unsuccessful in securing that which other nations,
even though in form at least still governed by kings, have been able to
achieve.


FOOTNOTES:

[15] The Illinois plan of minority representation in the legislature
provides for the election of three representatives from each district
and allows each voter to cast three votes as he pleases, one for each
candidate or three for one candidate or one and a half for each of two
candidates. Where extra-legal government by politocrats is strong, this
has for years resulted in members of the legislature being appointed
by the extra-legal government. The electorate has been wholly and
palpably disfranchised. If there are two political machines in the
district, one dominant and the other with a fair strength, they have
by agreement between them arranged that the dominant machine should
nominate only two candidates and the other only one. Thus the voter is
given no choice whatever and the nominations are an appointment. If
there are three equally strong political machines, each by agreement
will nominate one candidate. As a matter of fact without agreement the
number of candidates nominated will usually be as above indicated under
the circumstances named. Thus the electorate in very many Illinois
districts has had comparatively little or no real representation in
the lower house of the legislature for years. The worst elements in
the house have under this system been returned again and again. See
editorial in the _Chicago Tribune_ for December 22, 1912, on “Minority
Representation.”

[16] This assumes the existence of a second chamber as suggested in
chap. xvi.

[17] See _ante_, p. 153.




CHAPTER XV

 CONTEMPORARY PLANS LOOKING TOWARD THE UNION OF THE EXECUTIVE AND
 LEGISLATIVE POWERS OF STATE GOVERNMENTS


Our state legislatures are now for the most part composed of members
elected from fairly wieldy districts. Governmental changes then which
look toward the application of the principles of commission government
to the state, as outlined in the preceding chapter, have to do
principally with the union of the executive and legislative powers.
Several recent proposals for changes, coming from Illinois, Wisconsin,
Kansas, and Oregon, indicate that legislators, governors, and political
scientists with practical experience have concluded that the executive
and legislative powers must be brought nearer together. The interesting
fact, however, is that no plans have been suggested by which the
legislature is to absorb the control of the executive power by placing
it in the hands of the leaders of a majority of the legislature. On
the contrary, the proposals for bringing the executive and legislature
nearer together have, with one exception, been along the line of
conferring upon the executive greater power to control and coerce the
legislature.

The Illinois House of Representatives at its 1913 session adopted
a rule for which Representative Morton D. Hull was responsible. It
provided as follows:

 When any bill or resolution is introduced for the purpose of
 carrying into effect any recommendation of the governor, it may by
 executive message addressed to the speaker of the house be made
 an administration measure. An administration measure may be sent
 to the appropriate committee, or it shall, upon request of its
 introducer, be sent to committee of the whole house. When such a
 measure has been reported out of committee, it shall have precedence
 in the consideration of the house over all other measures except
 appropriation bills. The house shall sit in committee of the whole
 for the consideration of administration measures on Tuesday morning
 immediately after the reading of the house journal.

This rule very plainly brings the executive and the legislature nearer
together. It does so, however, only by conferring upon the governor
an important privilege which enables him to advance his legislative
program.

The proposed amendment to the Wisconsin constitution providing for an
initiative by the electorate at large for legislation[18] gives to
the governor a practical method of coercing or “steam-rollering” the
opposition of a hostile legislature. It provides for the submission to
the electorate at large of any bill introduced into the legislature
any time within the first thirty days of the session. This enables the
governor to present all administration bills to the legislature and if
they fail of passage he may then present them for enactment into law by
the electorate at large. This is giving the governor power to promote
and control legislation to a very great degree.

Governor Hodges of Kansas in his message to the legislature of March
10, 1913, in terms advocated the adoption of the commission plan
of government for the state. As there outlined, the details of the
plan were somewhat vague. It consisted apparently of a unicameral
legislature containing one or two members from each of the eight
congressional districts of the state, with terms of from four to
six years. This legislative commission was to be in session as the
exigencies of the public business demanded. The governor was to
be ex officio a member and presiding officer of the commission or
legislative assembly. We observe here no other union of the executive
and legislative powers than occurs in a city government like that
of Chicago, where the mayor is elected at large and vested with the
executive power and presides over a unicameral council of comparatively
few members exercising the municipal legislative power. Governor
Hodges’ suggestion would vest more power in the state executive than
he now has, by reason of his being the presiding officer of the
legislative body. Apart from this, it does not go farther than to
propose a reduction in the size of the legislature. But even that
part of the plan may be open to the objection that it violates the
fundamental principle of the selection of representatives from wieldy
geographical districts or by wieldy “quotas.” On the whole, Governor
Hodges’ plan would seem to be one which, like the Hull rule in Illinois
and the Wisconsin provision for an initiative, increased the power of
the executive elected at large and diminished the importance and power
of the representatives of the electorate.

The latest plans of the People’s Power League of Oregon are set out in
detail in certain constitutional amendments which are to be submitted
to the people upon a referendum.[19]

We notice first of all a concentration of executive power in the
governor by reason of the fact that he appoints his cabinet consisting
of an attorney-general, a secretary of state, a treasurer, a printer,
a superintendent of public instruction, a secretary of labor, a
state business manager, and such others as may be provided by law.
He appoints also all sheriffs and district attorneys throughout the
state. These local officers, however, are subject to a recall by
the electorate. The powers and duties of all state commissions are
consolidated and vested in the governor and become a part of the
executive powers and functions, excepting the rail-road commission,
the members of which are, however, appointed by the governor. The
governor’s power is further increased by giving to him and his cabinet
officers seats in a unicameral legislature. It is made the duty of the
governor to introduce all bills for appropriating money. While the
legislature may reduce the amount of appropriations, it cannot increase
them without the consent of the governor. The general veto power of
the governor is taken away, but he would still seem to have power by
promoting a referendum, to appeal to the electorate to override the
legislature.[20]

The single-chamber legislature is to consist of 60 members not less
than 2 of whom are elected from each district containing approximately
as many sixtieths of the population as there are members to be elected
from the district. The voter in no case is permitted to vote for more
than one candidate. Hence each party would be expected to put up as
many candidates as it estimated its strength to be in sixtieths of
the population. The result is bound to be a minority representation,
if there be any substantial minority. To obviate the minority having
as much power as the majority each member elected casts as many votes
in the legislature as there are voters who cast their ballots for
him. The unsuccessful candidate for governor who receives the highest
number of votes in his party is made a member of the legislature with a
voting strength equal to the number of votes cast for the unsuccessful
candidates of his party for places in the legislature. One might
hazard the guess that a legislature so precisely representing the
voting strength of all factions and parties was peculiarly liable to
legislative deadlocks which would again vastly increase the opportunity
of power in a governor who, with his cabinet, had places in the
legislative body and who possessed a vast power over appropriations.

On the whole these new plans from Oregon tend in the direction of
magnifying a one-man-executive power at the expense of the legislature
rather than the increasing of the power of the legislature by giving to
its leaders the control of the executive power.

At the 1913 session of the Illinois legislature there was introduced
by Senator Logan Hay a bill to establish what is now known as the Hay
plan for a legislative commission. It provided for a joint legislative
commission to consist of the governor, who was made ex officio chairman
of the committee, the lieutenant-governor, the speaker, the chairmen of
the committees on appropriations and judiciary of the Senate and the
House, and five other senators and five other representatives, selected
as other committees were, viz., in the senate by the resolution of that
body, in the House by the speaker. The governor, lieutenant-governor,
and speaker were to serve on the committee during their term of
office and the other members till the convening of the next General
Assembly after their appointment. The commission was to be in session
from the commencement of one regular session of the legislature to
the commencement of the next. It was given power to prepare and
bring forward a complete legislative program, including a budget of
appropriations for the coming legislative session, and to establish
a legislative reference bureau. It was given power to investigate
the administration of any department of the state government and the
expenditure of any appropriation made by the General Assembly. Such a
plan was admirably designed to increase the power of the legislature
by centralizing in its leaders power and authority to present a
comprehensive and matured program before the legislature convened. At
the same time it conferred no additional power over legislation upon
the governor. On the contrary, it, in a mild way, actually attempted to
secure additional control over the executive power. The mere existence
of a standing legislative commission composed of the leaders of the
legislature, with power at any time to _investigate the administration
of any department of the state government_ or the expenditure of any
money appropriated, was a continuing menace to the present executive
isolation and irresponsibility.

The plan evidently met with determined opposition from the executive,
for in the House it was amended so as to provide four members from
the Senate and House instead of five, and these were to be _appointed
by the governor_. The power of investigation by the commission was
restricted to such as it was called upon to make by the governor, the
General Assembly, or either house, and the power to investigate the
administration of any department of the state government was entirely
omitted. In this form the bill became one which would vastly increase
the governor’s power by delivering into his hands the authority of the
commission and giving him recognized administration members of the
legislature. A deadlock ensued between the House and the Senate, and
the bill as finally passed contained a provision only for establishing
a legislative reference bureau. In the contest over the original plan
and the house modifications we have a clear-cut recognition of the
necessity of bringing the governor and the legislature nearer together.
We also have presented a sharp dispute as to whether the governor
shall have added to his power further authority over the promotion
of legislation or whether the legislature shall increase its power
by organization, and at the same time secure some control, if not an
actual domination, over the executive power.

It is rather startling that in all the above proposals which look
toward the closer relation of the executive and legislative powers we
should find a strong tendency toward the increasing of the power of the
single executive by giving him greater control over the legislative
power. Historically the effort has constantly been to break down the
power of the single executive. True, the executive in such cases was
not subject to the electorate at frequent intervals. But frequent
elections may not protect the governed from a vast number of errors
of judgment and smaller tyrannies, executive oppression and bad
appointments, which do not become a matter of general knowledge or make
a considerable issue before the electorate. Good executive government
in the sense of one which is just and fair, well balanced, seeking
improvements, and acting conscientiously in lesser affairs, comes more
certainly from a small committee of experienced leaders than from a
single man. The exchange of views by such a body and the reaction of
one member upon another has a value which cannot be estimated. The
single executive on the other hand is likely to have no fixed set of
responsible advisers. He is too frequently swayed by the advice of the
last man who reaches his ear.

In making constitutions it is quite as easy to unite the executive
and legislative powers by giving the control of the executive power
to a majority of the legislature as it is to hand the control of the
legislative power over to the single executive. From the point of view
of expediency there is much to be said of the plan which places the
control of the executive power in the hands of the legislature.


FOOTNOTES:

[18] Joint resolution 4A, introduced June 16, 1913.

[19] These were furnished to the author by Mr. U. S. U’Ren of Oregon
City, Oregon. One is in the form of a letter dated December 28, 1911,
asking for criticisms on the draft of constitutional changes. The
other is in the form of an initiative petition for the submission of
particular constitutional amendments (being a part of the entire plan
of changes) for adoption by the electorate.

[20] “The power of the governor to promote initiative and referendum
petitions is not, however, increased by the suggested amendment. He
has now the same rights in this as a private citizen but no official
powers” (comment of U. S. U’Ren).




CHAPTER XVI

THE SECOND-CHAMBER PROBLEM[21]


The institution of private property is still with us and likely
to remain for some time. The acquisition and holding of private
property is still the main object of our existence and doubtless will
continue to be so. It is privately held property which pays taxes
and supports the state. In any government property is entitled to
fair consideration and protection. Special differentiated classes
of property, such as railroads and other public-service plants,
manufacturing interests, mines, and landlords’ and farmers’ holdings
are entitled to fair consideration and protection. Indeed, the state
that permitted indiscriminate assaults upon private property or upon
differentiated classes of private property could not long endure.
Certainly its prosperity would be short-lived. These premises have not
been questioned in the past. Not many in this day would be found to
controvert them.

What sort of demand, then, was there, when our state governments
were first organized, for governmental arrangements suitable to
protect property interests? How was that demand answered in our
mid-nineteenth-century plans of government? What is the character of
that same demand today and how do our present governmental arrangements
answer it? These are important inquiries preliminary to our ultimate
question: How are property interests to be protected when the
principles of the commission form of government are applied to the
state?

It is the object of this chapter to attempt to answer in outline these
questions.

Our federal government was established in a territory which was mostly
a wilderness, with a fringe of frontier and colonial communities
on the Atlantic seaboard. Whenever a state government has been
first established, the territory of which it has been composed has
been either wholly or very largely of a frontier character. In such
communities opportunity was abundant and pretty much equal to all.
Men started with not much advantage except that with which nature
had endowed them. The differences in wealth were not such as to be
beyond the hope of most men to bridge in a lifetime. The population
was controlled by a community of feeling and a certain similarity of
occupation. In such a society any attack upon property interests was
bound to come home to too many to make such an attack possible. The
practical danger was that states would permit the resident debtor class
to repudiate its obligations to a non-resident creditor class. This was
headed off by the very practical provision of the federal constitution
that no state should pass any law impairing the obligation of
contracts. Apart from this the governmental devices adopted to protect
property interests were largely theoretical and academic. They were for
the most part directed to preventing all sudden legislative action.
Legislation must in every case be the result of “sober second thought.”
No distinction was made between legislation which affected property
interests and any other sort. The safeguards for securing the “sober
second thought” of the electorate or legislature were as applicable to
the most trivial legislative matters as to the most important. Thus we
have the separation of the legislature into two houses. The members
of both are elected. The only difference is that the number of the
upper house is smaller and the term a little longer. We have also the
limited veto power of the governor. Although not in terms provided for
in our constitution, it has become a part of our scheme of government
that the courts shall exercise the power of declaring void acts of the
legislature which are forbidden by the written constitution. As these
written constitutions have contained almost universally the provision
that “no person shall be deprived of life, liberty, or property
without due process of law,” the courts have had the power to declare
void acts of the legislature which they deemed to be a taking of the
“liberty” or “property” of any person “without due process of law.”
When exercised this power has amounted in effect to a judicial veto.
If the court deem the act in question to have been forbidden by the
constitution the act is invalid until such time as the constitution
shall have been changed and the general prohibition eliminated, at
least so far as the offending act in question is concerned. It was,
however, only the taking “_without due process of law_” which was
forbidden. But legislation was itself “due process of law” unless it
was arbitrary and irrational in its operation.[22] Thus an act which
forbade the consumption of liquor by red-haired persons and which
imposed a fine for the offense would be arbitrary and irrational in its
application, and the imposition of a fine pursuant to the act would
be a taking of the property of the individual without due process of
law. But more than this, the arbitrary character of the legislative act
must be clear beyond all reasonable doubt.[23] It must be so clear
that two rational men could not differ about the matter.[24] These
were the limits of the power of the court as originally laid down. It
is apparent that with these limitations conscientiously observed the
veto power of the court over legislation was of largely theoretical
and academic value in protecting property interests. The fact is that
this power of the courts to declare laws unconstitutional because they
took some person’s life, liberty, or property without due process of
law remained practically unused during the first half of the nineteenth
century. Perhaps there was no call for the protection of property
interests from the legislature. Perhaps the limitations upon the
exercise of the power of the court were too faithfully observed. It is
not unlikely that both reasons contributed to the results.

Before 1860 the Atlantic seaboard states ceased to be provincial or
frontier communities. Since 1860 an enormous area in the Mississippi
Valley has ceased to be a frontier community. Great cities have arisen.
Whole states have been brought under cultivation. Manufacturing has
constantly gone forward. Facility in transportation has diminished
the size of the country twenty-fold in many areas. The increase in
the value and quantity of private property has been fabulous. So
enormous an increase in so short a time has necessarily resulted in
the concentration of immense fortunes in the hands of a considerable
number of individuals. Even more marked has been the concentration
of collective property holdings in corporations. The financial
difference between persons of some property and those with vast
fortunes is so great that the bridging of the gap by even the
exceptional individual in his lifetime is out of the question. The
financial difference between the position of persons possessing some
property and the collective wealth of great corporations is beyond
the actual comprehension of the human intelligence. Opportunity is
no longer anywhere near equal and many start the race in life with a
lead which puts them out of sight of all but a very few. The result
is that a constantly increasing number of people think not in terms
of property and the interests of property, but as individuals, and in
many instances as one of a collection of individuals. They have begun
to consider whether the state is so run and legislation so framed
that they as individuals, or as one of a collective organization of
individuals similarly situated, are enabled to live satisfactorily.
They are readily inclined to believe that specially organized property
interests are attempting to make the laws, or to block the making
of laws in the interests of property and against the interests of
the individual, either singly or in organized groups. Such specially
organized property interests have become liable to persistent and
sometimes vicious and retaliatory attacks by a majority of the
electorate. The fact that this majority is composed of persons who
are, to some extent, holders of property does not prevent them from
thinking in terms of their position as individuals. Thus spectacular
onslaughts by the electorate have been made upon such organized
property interests as railroads, public-service corporations, and
mine-owners. Legislation to promote social justice and in the actual
or pretended exercise of the police power may be in effect an attack
upon some legitimate business. Yet the general object of such acts will
receive an overwhelming popular approval.

Step by step with the development of this antagonism in the state
between specially organized property interests and the individual has
grown the effort of such interests to combine for protection from the
electorate. Naturally they use all the means at their disposal in the
governmental scheme to secure that protection. The governor’s veto,
however, has proved of less and less value, for the governor is so
conspicuous an officer as frequently to be a popular choice. Property
interests have fallen back upon the legislative lobby, an alliance
with the extra-legal government, and the constant urging of the courts
to go farther and farther in the exercise of their veto power over
legislation. The lobby has gained power through the assistance and
sanction of the leaders of the extra-legal government. That government
has been stimulated to the highest efficiency and the greatest
activity by reason of the prizes coming to its leaders as the result
of their alliance and partnership with collectively organized property
interests. As a last resort the courts have again and again been
importuned to veto legislation inimical to specially organized property
interests, and all property interests when attacked at once become
specially organized at the point of attack. These importunities come in
the form of arguments to the court on behalf of property interests that
are unfavorably affected by the legislation in question. Frequently
the act which they complain of has been badly drawn and is really
vicious and unfair in some of its workings, although the main principle
may be sound. This intensifies the appeal of the individual for its
overthrow. Such complaints from the interests affected, together with
the social and economic theories of the judges themselves, and no doubt
in some cases, the direct influence of the extra-legal government,
have been pressed upon the judges in an effort to cause them to
abandon the academic, theoretical, and bloodless function which was
conceded to them when the power of the courts to declare acts of the
legislature unconstitutional originally was asserted, and to expand
this power so as to present an efficient barrier to the onslaughts
of the proletariat upon property interests. At times and to a very
considerable extent state courts have yielded to this pressure. It is
the demand of specially organized property interests for protection
and fair treatment and the inclination of the courts to give it that
has presented in the last thirty years so long a list in every state
of legislative acts held unconstitutional because they took the
liberty or property of some person without due process of law.[25]
It is, no doubt, the desire of these same property interests that the
clause of the fourteenth amendment of the federal constitution, which
provides that “no state shall pass any law depriving any person of
life, liberty, or property without due process of law,” may in the
hands of the United States Supreme Court afford the same practical and
effective protection to property interests which similar clauses in
the state constitutions have done through the action of state supreme
courts.

Such is the actual situation into which it is now proposed to project
alterations in our scheme of government which will eliminate
extra-legal government by politocrats and thereby lessen, if not
entirely do away with, the lobby which is backed by the extra-legal
government. The same changes are to give us a single legislative
chamber which shall be really representative, highly sensitive, and
quickly responsive to the popular will. Very naturally property
interests, particularly those most frequently subject to legislative
attack, will wish to know how they are to be protected from the
onslaughts of the proletariat or from the hasty judgments of an
ordinarily conservative and fair majority. Property can point to
the fact that the commonwealth under Cromwell gave up the single
legislative chamber and reverted to the bicameral plan;[26] that
the single chamber adopted by the French Constitution of 1791 was
abandoned for a bicameral arrangement in 1795, and never again, except
for a brief space under the Second Republic of 1848, did France
renew the experiment. It can point to the opinions of Mill,[27]
Lecky,[28] Maine,[29] Bagehot,[30] and Sidgwick[31] in favor of the
second-chamber plan and to the well-nigh universal practice of such
a method of constituting the legislature. Furthermore, the second
chambers established outside of the United States and perhaps Australia
have in practice acted on the whole as the representatives of property
interests and the protectors of those interests from the acts of the
popular house. These experiences may contain no lesson for us and the
opinions referred to may be hopelessly reactionary, but they would at
least seem to justify property in humbly asking what is to be done to
protect it from the actions of the single popular legislative chamber
in which is united the executive and legislative power.

There are two ways at least of meeting this question:

The first is to do nothing at all. Property is to be persuaded that it
is in the long run entirely safe at the hands of a legislature which
is really expressive of the will of the majority and sensitive to that
will; that property has money with which to advocate its cause and
can buy newspapers, circulate pamphlets, and hire speakers; that the
mass of the electorate are in general entirely fair and conservative
toward property; that property is protected by the courts and by
constitutional provisions prohibiting the taking of property without
due process of law from sudden and violent legislative action.

This attitude will, however, hardly satisfy property interests. How
they will be treated by a single legislative chamber representing the
popular will cannot be determined till the experiment is actually
tried. All a priori views are merely speculative opinions made up
from data wholly incomplete and inconclusive. Property interests
will naturally regard it as unfair that they should take the risk of
a new experiment in government. Nor will property be satisfied with
protection by the courts as now constituted. The fact that judges are
for the most part elected by popular vote, that the recall of judges
and of judicial decisions is being violently advocated, will hardly
tend to reassure property in the protection from the electorate by the
courts to which it believes itself fairly entitled.

The second method of meeting the demand of property for protection
from the single popular legislative chamber is to give it a direct
representation in the legislature and a voice in the enactment of the
laws at the time they are in the process of making. The representatives
of property should have power to propose legislation, to amend that
which comes from the popular legislative chamber, and to enter into
compromises respecting it. They should have in addition at least a
limited veto on the passage of laws. The exercise of such powers
should be open and legal, but at the same time entirely subordinate
to the power of the representatives of the electorate in the single
popular chamber. This requires the establishment of a second
legislative chamber in which the representatives of property interests
shall sit.

The most direct method of constituting such a second chamber is to
divide the state into as many senatorial districts as there are to be
members of the second chamber--let us say one-fourth of the number of
the popular house. The districts should be created on the basis of an
equal amount of taxable property in each. One representative should
be sent from each district. One vote should be given each taxpayer in
the district who during the preceding year had paid a given amount or
less in taxes. Each taxpayer should have one vote in addition for each
similar amount which he paid in taxes, and should vote as a taxpayer,
whether a corporation or a non-resident citizen of the United States.
It might be desirable to elect the senators at large from a few
districts, the voting by taxpayers to be according to the Hare plan,
thus allowing groups of taxpayers to send their representatives.

A less direct method would be to fill the second chamber with members
holding for life and appointed by the executive council of state.
The natural tendency of such a life tenure of office, coupled with
appointment from among successful men, is to produce a conservative
second chamber. If, however, one party is in power for a long period
it also results in the packing of the second chamber by one party for
its own purposes and this brings renewed party strife and legislative
deadlocks.[32] Such a second chamber will, however, in the long run, it
is believed, represent property interests.

It would be, of course, of vital importance that a second chamber
constituted in either of the above ways be kept in strict subordination
to the chamber which represents the electorate at large. The principal
means for accomplishing this has already been provided for in the plan
for the union of the executive and legislative functions in the lower
house. The fact that the entire executive power of the state is placed
in the hands of the leaders of the legislative majority of the lower
house must always make that the more powerful organ of government. But
we can go farther. It may be provided that the second chamber shall
never have the right to reject an appropriation bill. This will prevent
its ever interfering with the conduct of the government through the
collection of taxes and the expenditure of money. Then a suitable
method of “steam-rollering” the second chamber with regard to the
passage of legislation may be provided as follows:

 After the rejection of any bill passed by the lower house in two
 successive sessions, the vote upon such bill shall be taken, with both
 branches of the legislature sitting in joint session and a majority of
 the votes in such joint session shall be sufficient to give the bill
 the effect of law.

By such devices the second chamber representing property interests as
such will have been given only a properly limited veto power upon
legislation. At the same time, as a second chamber, it will have power
to approve that which passes the popular house and to enter into
compromises respecting it. The second chamber can undertake a popular
defense of its action. These are important privileges. They aid in the
production of laws which are fair to all. On the other hand, the second
chamber is equally clearly cut off from ever gaining any ascendancy
over that branch of the legislature which represents and is sensitive
to the popular will.

We may, however, in the establishment of a second chamber representing
property interests proceed with still greater indirectness and the
utmost caution along a path on which we are already started.

Our highest state judicial tribunal is already possessed of a
substantial veto upon legislation in the interests of property by
reason of its power to declare acts of the legislature void because
they take property “without due process of law.” There are few, if
any, constitutions today in the United States which do not contain
other prohibitions upon the legislature under which acts may be
declared unconstitutional in the interests of property. The courts
have already gone beyond the mere academic function of declaring acts
of the legislature void only when they are utterly irrational and
arbitrary in their discriminatory operation. The courts now boldly
perform the function of protecting property from hasty, ill-advised,
and unjust legislation. Heretofore, at least, public opinion has
sustained the courts in the exercise of this function. The placing
of this power in the hands of judges has insured its exercise by men
who at least are not prejudiced against property and are inclined to
give it a fair hearing. Judges must be selected from among lawyers,
and hence must be men of some education and intellectual attainments.
Since the main business of judges is to decide litigated cases arising
between individuals, there is very naturally a demand that judges be
selected from among the leaders at the bar. This means that there is
a constant and legitimate pressure in favor of the selection of men
who will naturally give property as full protection as the power of
the court will permit. Even lawyers of only fair success and ability
in fifteen or twenty years of practice will acquire the property point
of view. Practically all lawyers live in an atmosphere of enforcement
of property interests. They cannot avoid being educated to see the
unfairness of legislation which affects unfavorably property interests.
It is not improbable that among those who secure seats in the highest
court some will regard themselves as specially appointed to stand
between property and the proletariat, and will do so with great
determination, vigor, and judicial independence. Once selected, the
judge in our highest courts holds for a longer term than other judges,
and this fact fortifies him in a determination that property interests
shall be dealt with fairly. All this has been accomplished without the
electorate at large fully perceiving what has happened. The voter is
still submissive to the apparently fair proposition that only lawyers
of excellent standing and ability should be elected to the highest
court of the state. Little does he understand that success in selecting
such men has established the rudiments of a second chamber which is
designed to protect property.

The present arrangement, however, is on the verge of some
reorganization. It is plain that the judicial veto is too drastic.
It may stop all desired legislation along a given line till the
constitution is changed. The difficulties of securing the desired
amendment may not be surmounted for many years. Hence has arisen the
plan for “steam-rollering” the judicial veto by a constitutional
provision that whenever an act of the legislature has been passed
at two different sessions and sustained by the electorate upon a
referendum, it shall be deemed not to infringe the “life, liberty, and
property” clause of the state constitution.[33] The electorate today
is also becoming increasingly alive to the fact that the courts, in
holding legislation unconstitutional, have really abandoned a purely
judicial function and have undertaken in a degree the political
function of a second chamber in protecting property interests from the
legislature. True, the action of the court is in form still judicial.
It purports to apply the constitutional prohibition to the legislation
involved in the particular litigated case arising between contending
parties. But the court’s decision, once made, is now acquiesced in
by all departments of the government and all public officers, as a
complete disposition of the act held void. The compiler of the statutes
omits it from the compiled laws as being no law at all. The court
does in fact veto out of existence an act of the legislature for the
entire state government and the inhabitants of the state. It does this
also in response to a very general prohibition upon the legislature,
such as that “no person shall be deprived of property without due
process of law”--a phrase so vague that it gives the court a discretion
which approaches that of the legislature in considering whether a
proposed act is wise and fair to property or not. The disclosure to
the electorate that courts, in using their judicial veto, are really
exercising a great political power has resulted in an increasing
demand that judges should be elected as political officers; that
their economic and social bias be known--in short, that they have a
politico-judicial platform and be subject to the recall.

The tendency thus disclosed to treat the judges of our highest courts
as political officers whose social and economic bias regarding
legislation must be known in advance is, of course, ruinous to the
performance of their ordinary judicial functions. The electorate will
obtain what it wants, and perhaps what it may be entitled to, from the
judges, but at the expense of the disruption of the whole judicial
system. That would indeed be a calamity. Disorganization in the
administration of justice, due to the popular attitude toward judges
and the courts, is even now beginning to be felt. It will very soon
become apparent that in the rebuilding of our judicial system courts
which handle the general mass of litigation must be confined strictly
to judicial functions. They must administer the law as established by
the legislature and always in subordination to the legislature. If,
then, we are to keep our present plan of protecting property by means
of a court and a constitution, a special court of last resort must be
established for deciding all constitutional questions, the validity
of all municipal ordinances, and all other classes of cases where
the issue is drawn between the electorate acting through a popular
legislative body, and property interests. In order that the veto of the
court may not be too drastic in its effect, there should be given to
the single chamber legislature the power to “steam-roller” its judicial
veto by a second passage of the act after a suitable interval and its
approval on a referendum. Thus we shall have evolved a practicable
second chamber protecting property interests.

It would be only a short step to provide for the submission of all
acts to such a court before they became laws, with a right on the part
of litigants to bring up the question of the validity of the acts as
upon a rehearing. Then it would seem most reasonable that when an act
was presented to the special court of appeal before it became law and
found to be unconstitutional, the court should have power to redraft
the act so that it would accomplish what was desired so far as the
same was permitted by the constitution. If ultimately the right of
litigants to attack the validity of any act which had passed both the
legislature and the court should be cut off, and if the constitutional
limitations upon the legislature should entirely disappear, while at
the same time the members of the body which scrutinized the acts passed
by the popular chamber were appointed by the council of state and held
office for a considerable period, we should have, in what started as a
judicial tribunal, a real second chamber functioning like other second
chambers in furnishing an additional security against legislation which
was unfair to property interests.[34]

It is not the purpose of the present writer to advocate either the
second chamber representing property interests or the establishment
of a unicameral legislature in which all legislative and executive
powers are united and which is extremely sensitive to the popular will
without any special protection to property interests other than that
which their numerical strength and property holding gives them. It is
enough that the difficulties of the situation be faced and the several
general lines of procedure be indicated. It will be time enough to have
opinions when we are brought, by constitution-making, nearer to the
practical settlement of the difficulty.


FOOTNOTES:

[21] Much of the argument in this volume is in support of the Short
Ballot movement. It is only fair to say, however, that the leaders of
this movement in the National Short Ballot Organization dissent from
the suggestions put forward in this chapter as to the need of special
protection to property interests, and the methods suggested of working
out such special protection are, therefore, no part of the Short Ballot
doctrine.

[22] _Hurtado_ v. _California_, 110 U.S. 516.

[23] James Bradley Thayer, “The Origin and Scope of the American
Doctrine of Constitutional Law,” 7 _Harv. Law Rev._, 129, 139 ff.

[24] “The validity of a law ought not, then, to be questioned, unless
it is so obviously repugnant to the constitution, that when pointed out
by the judges, all men of sense and reflection in the community may
perceive the repugnancy.”--Per Chancellor Waties in _Adm’rs of Byrne_
v. _Adm’rs of Stewart_, 3 Des. 466 (South Carolina, 1812).

[25] The results reached by the Illinois Supreme Court, especially
when contrasted with those reached by the United States Supreme Court,
exhibit an extreme exercise of the power of courts to hold legislation
void because it takes the property or liberty of individuals without
due process of law.

Since 1886 the Illinois Supreme Court has held void acts of the
legislature compelling mine-owners to weigh coal mined and to pay
the miners on the basis of such weight, because such acts took the
mine-owner’s liberty and property without due process of law contrary
to the provisions of the state constitution: _Millett_ v. _The People_,
117 Ill. 294 (1896); _Ramsey_ v. _The People_, 142 Ill. 380 (1892);
_Harding_ v. _The People_, 160 Ill. 459 (1896). The United States
Supreme Court, however, has held that a similar act from Arkansas did
not violate the “life, liberty, or property” clause of the fourteenth
amendment: _McLean_ v. _Arkansas_, 211 U.S. 539 (1908).

Since 1892 the Illinois Supreme Court has held void state acts
regulating the keeping of truck stores by owners of coal mines and
factories, because they deprived such owners of liberty and property
without due process of law, contrary to the state constitution:
_Frorer_ v. _The People_, 141 Ill. 171 (1892); _Kellyville Coal Co._
v. _Harrier_, 207 Ill. 624 (1904). In 1886 the Pennsylvania Supreme
Court held void an act which prohibited the payment of wages to miners
in anything but money: _Godcharles_ v. _Wigeman_, 113 Pa. 431 (1886).
Yet the United States Supreme Court holds that such acts are not in
violation of the “life, liberty, or property” clause of the fourteenth
amendment: _Knoxville Coal Co._ v. _Harrison_, 183 U.S. 13 (1901).

In 1896 the Illinois Supreme Court held void the barbers’ Sunday
law, which forbade the employment of barbers on Sunday, because the
act violated the “life, liberty, or property” clause of the state
constitution: _Eden_ v. _The People_, 161 Ill. 296 (1896). But the
United States Supreme Court sustained a like act from Minnesota,
declaring that it did not violate the “life, liberty, or property”
clause of the federal constitution: _Petit_ v. _Minnesota_, 177 U.S.
164 (1898).

In 1900 the Illinois Supreme Court held void the state flag law which
prohibited the use of the American flag for advertising purposes,
because it deprived advertisers of liberty and property without due
process of law, contrary to the provision of the state constitution:
_Ruhstrat_ v. _The People_, 185 Ill. 133 (1900). The United States
Supreme Court, however, sustained a similar act from Nebraska holding
that it was not in violation of the “life, liberty, or property” clause
of the fourteenth amendment: _Halter_ v. _Nebraska_, 205 U.S. 34 (1907).

In 1908 the Illinois Supreme Court held void the bulk sales acts
regulating sales of stocks of goods in bulk otherwise than in the usual
course of trade, because it violated the “life, liberty, or property”
clause of the state constitution: _Off &. Co._ v. _Morehead_, 235
Ill. 40 (1908). But the United States Supreme Court has held similar
statutes from Connecticut and Michigan valid and not in violation of
the “life, liberty, or property” clause of the fourteenth amendment:
_Lemieux_ v. _Young_, 211 U.S. 489 (1908); _Kidd, Dater & Price Co_. v.
_Musselman Grocer Co._, 217 U.S. 461 (1910).

In 1909 the Illinois Supreme Court held void the loan-shark act
regulating the assignment of future wages as security for money
borrowed and requiring the assignment to be recorded and signed by the
wife. Again the reason was that the “life, liberty, or property” clause
of the state constitution was violated: _Massie_ v. _Cessna_, 239 Ill.
352 (1909). But the United States Supreme Court has sustained a similar
act passed in Massachusetts on the ground that it did not infringe
the “life, liberty, or property” clause of the fourteenth amendment:
_Mutual Loan Company_ v. _Martell_, 222 U.S. 225 (1911).

The Illinois Supreme Court has also held void, as infringing the “life,
liberty, or property” clause of the state constitution, the following
acts: (_a_) An act penalizing employers in the importation of workmen
from another state by reason of deceit touching the matter of the
existence of a strike or the sanitary condition of the employment:
_Josma_ v. _Western Steel Car Co._, 249 Ill. 508 (1911); compare,
however, _Williams_ v. _Fears_, 179 U.S. 270; (_b_) An act providing
that no public contractor shall employ alien labor on any public
work: _City of Chicago_ v. _Hulbert_, 205 Ill. 346 (1903). But in
_Atkin_ v. _Kansas_, 191 U.S. 207 (1903), the United States Supreme
Court held valid an act of Kansas making it a criminal offense for a
public contractor to permit or require an employee to perform labor
upon public work in excess of eight hours each day; (_c_) The miners’
washroom act, requiring owners of mines to provide a washroom at the
top of the mine for the use of the miners: _Starne_ v. _The People_,
222 Ill. 189 (1906); (_d_) An act prohibiting more than six persons
sleeping in one room in a lodging-house: _Bailey_ v. _The People_,
190 Ill. 28 (1901); (_e_) An act prescribing an eight-hour day for
women in certain occupations: _Ritchie_ v. _The People_, 155 Ill. 98
(1895). This case was approved in _Ritchie_ v. _Wayman_, 244 Ill. 509
(1911), which, however, held a ten-hour labor law for women in certain
occupations valid, following the ruling of the U.S. Supreme Court
sustaining a similar act passed in Oregon: _Muller_ v. _Oregon_, 208
U.S. 412 (1908). It seems entirely probable from its opinion in the
last-mentioned case that the United States Supreme Court would have
held valid the act condemned by the Illinois Supreme Court in _Ritchie_
v. _The People_, _supra_.

[26] “The proposal for a revived Second Chamber was, on the contrary,
carried with an unexpected degree of unanimity. The Protector pressed
it strongly upon the officers. ‘I tell you,’ he said, ‘that unless you
have some such thing as a balance we cannot be safe. Either you will
encroach upon our civil liberties by excluding such as are elected to
serve in Parliament--next time for aught I know you may exclude four
hundred--or they will encroach upon our religious liberty. By the
proceedings of this Parliament you see they stand in need of a check or
balancing power, for the case of James Naylor might happen to be your
case. By the same law and reason they punished Naylor they might punish
an Independent or an Anabaptist. By their judicial power they fall upon
life and member, and doth the Instrument enable me to control it? This
Instrument of Government will not do your work.’”--J. A. R. Marriott,
_Second Chambers_, p. 38.

[27] “A majority in a single assembly, when it has assumed a permanent
character--when composed of the same persons habitually acting
together, and always assured of victory in their own House--easily
becomes despotic and overweening, if released from the necessity
of considering whether its acts will be concurred in by another
constituted authority. The same reason which induced the Romans to have
two consuls, makes it desirable there should be two chambers; that
neither of them may be exposed to the corrupting influence of undivided
power, even for the space of a single year.”

[28] “Of all the forms of government that are possible among mankind I
do not know any which is likely to be worse than the government of a
single omnipotent democratic chamber.”

[29] “What, then, is expected from a well constituted Second Chamber is
_not a rival infallibility, but an additional security_. It is hardly
too much to say that, in this view, almost any Second Chamber is better
than none.”

[30] “With a perfect Lower House it is certain that an Upper House
would be scarcely of any value. If we had an ideal House of Commons
perfectly representing the nation, always moderate, never passionate,
abounding in men of leisure, never omitting the slow and steady forms
necessary for good consideration, it is certain that we should not need
a higher chamber. The work would be done so well that we should not
want any one to look over or revise it. And whatever is unnecessary
in government, is pernicious.... But though beside an ideal House of
Commons the Lords would be unnecessary, and therefore pernicious,
beside the actual House a revising and leisured legislature is
extremely useful, if not quite necessary.”

[31] “The main end for which a Senate is constructed [is] that all
legislative measures may receive a second consideration by a body
_different in character from the primary representative assembly_, and
if possible superior or supplementary in intellectual qualifications.”

[32] See J. A. R. Marriott, “History of the Canadian Second Chamber” in
_Second Chambers_, pp. 145 ff.

[33] The phrase “recall of judicial decisions” is unfortunate, since it
implies that the judicial function is taken over by the electorate and
the judicial decision reversed, when all that is done is to amend the
constitution so that the basis for the judicial decision is taken away
in all subsequent litigation. The better phrase, it is believed, is the
one used in the text, namely, “steam-rollering the judicial veto.” See
Albert M. Kales, “The Recall of Judicial Decisions,” _Illinois State
Bar Association Proceedings_, 1912, pp. 203-18; Herbert Pope, “The
Recall of Judicial Decisions--A Criticism,” 7 _Illinois Law Review_, p.
149.

[34] Ramsay Muir, in _Peers and Bureaucrats_, has a suggestion for
a second chamber that should not be ignored. He finds the evil of a
popular chamber containing a large number of representatives from
wieldy districts selected by pluralities merely to be that it makes
government by party a necessity. The parties tend to form themselves
into two great camps, with two great programs. The electorate has been
driven to choose one program or the other, though if all shades of
opinion could be examined some part of each program would not receive
a majority of votes. Party discipline, however, becomes so strict that
the first chamber can put through every part of the party program. The
real need in the second chamber, he declares, is to secure members of
independent views who can express their opinions freely without fear
of the loss of their seat as a punishment for having been independent,
and which will represent the different shades of opinion on the part of
the electorate. He, therefore, advocates the selection of members of
the second chamber by the method of proportional representation by the
single transferable vote according to the Hare plan.

The difficulty with this proposal is that property interests as such
are not represented except according to the numerical strength of
property owners. In fact, Mr. Muir expressly repudiates any idea of
creating a second chamber based upon an aristocracy or the middle
class of income taxpayers. His plan might also be expected to involve
a contest as to which chamber really represented the electorate. The
second chamber as proposed by Mr. Muir would certainly be a “rival
infallibility” and hopeless deadlocks might be expected. There would
then be the usual American spectacle of bickering between the executive
as represented by the executive council or cabinet of the first
chamber, and the second chamber representing the electorate. On the
whole the union of the executive and the legislative powers so much to
be desired would be broken in upon.




CHAPTER XVII

METHODS OF SELECTING AND RETIRING JUDGES


Justice is not administered by an executive head planning how a large
number of employees shall do clerical work or tend machines. Its
ultimate source is in the operation of the mind of the judge upon
certain facts presented to him in a judicial investigation. The power
of the state to preserve order and settle the rights of parties is
subject to be invoked in one way or another, according as the judge’s
mind reacts and operates. Clearly, therefore, the way in which the
minds are selected for this important public duty and the way they are
retired is of the first importance to the due administration of justice.

It may be that in some frontier or sparsely settled rural districts
where extra-legal government does not exist, judges are in a degree
really elected by the people. It may be that in such communities the
electorate does actually pick out that one among the lawyers whom it
wishes to act as judge.

There may be other communities which are well satisfied with the
results obtained by special judicial elections at which the candidates
are nominated by petition only and where the ballot is in form
non-partisan. An analysis of conditions in such communities will
usually show that extra-legal government by politocrats is very weak
or non-existent, and that the power of selecting and retiring judges
really resides in the lawyers, subject only to the approval of the
electorate.

In a metropolitan district, however, where there is a large population
and a governmental plan which reduces the most intelligent inhabitant
to an extreme degree of political ignorance as a voter, and the
establishment of extra-legal government by politocrats is thus secured
and fostered and becomes the real government, the judges, though the
electorate regularly votes to instal them in office, are not in fact
elected at all. They are appointed. The appointing power is lodged with
the politocrats of the extra-legal government. These men appoint the
nominees. They do it openly and with a certain degree of responsibility
under the convention system. They do it less openly and with less
responsibility when primaries are held.

If you wish to test the soundness of these conclusions inquire your way
to a judgeship in such a district or listen to the experiences of the
men who have found their way to a judgeship or have tried to obtain the
office and failed. In almost every case the story is one of preliminary
service to the organization, recognition by the local organization
chief, and through him recognition and appointment of a nomination by
the governing board of the party organization. Those who do not go by
this road do not get in. The voter only selects which of two or three
appointing powers he prefers. Whichever way he votes he merely approves
an appointment by politocrats.

The judges in a metropolitan district where the extra-legal government
rules and where elections for judges are held are not subject
to a recall merely. They are subject to a progressive series of
recalls. They are subject to recall by the politocrats who sit upon
the governing board of the party organization. These may refuse a
nomination at the time of an election. If the judge secures the
nomination he may be recalled by a wing of the organization knifing
him at the polls. He may be, and frequently is, recalled by reason
of an upheaval upon national issues. In the case so rare that it is
difficult for one with a considerable experience at the bar in a city
like Chicago to remember it, a judge is actually recalled because of
popular dissatisfaction with him. If there now be added the recall
by popular vote at any time during the judge’s term, we shall have
presented the politocrats with a continuous hold upon the judge. Their
power may at any time be used to initiate recall proceedings against
him, and the individual without any real popular following will
have but little chance against the tremendous power of a successful
political organization. The recall of a judge by popular vote at any
time will give a like opportunity to a particular faction of the
political organization to attack a judge it does not want. Such a
recall will likewise give to a party which has a chance of sweeping all
before it in a national election an opportunity to initiate a recall
of some at least of the judges of the opposite political party. Of
course, the recall election will also give the electorate at large an
opportunity to retire a judge at once in the rare case where there is a
real popular uprising against him. It does not take any great degree of
intelligence to estimate whether such a recall by popular vote will be
of greater advantage to the extra-legal government by politocrats or to
the electorate at large.

The plain truth is that in a metropolitan district the selection of
judges by some sort of appointing power cannot by any possibility be
avoided. The position of a single judge out of as many as thirty and
upward in a district containing an electorate of a hundred thousand
and over is too hidden and obscure to enable any man who is willing to
occupy the place to secure a popular following. The man who has a real
hold upon a majority of so numerous an electorate will inevitably be
led to a candidacy for governor of the state or senator of the United
States, if not indeed for president of the United States. Another
obstacle to the actual choice of judges by so numerous an electorate
is that the determination of those fit to hold judicial office is
unusually difficult. It would be a problem for a single individual who
had an extensive personal knowledge of the candidates and had observed
them closely for a considerable period in the practice of their
profession. For all but the most exceptional judge in a metropolitan
district the power which places him in office and retires him from
office will be an appointing power, although there be in force the
so-called popular election of judges. So long as extra-legal government
by politocrats is the real government, that appointing power will be
lodged in the politocrats who wield the power of that government.

There are many who sincerely believe that the ideal functioning of the
electorate in a metropolitan district where the extra-legal government
is strong, may be restored if judges are elected only at special
elections where a judicial ballot is used which omits all designation
of parties and upon which the names of candidates are placed by
petition only and the name of each candidate is rotated upon the ballot
so that it will appear an equal number of times in every position. The
object of such legislation is to restore a choice by the electorate
by depriving the extra-legal government of its predominant influence
in judicial elections. The means adopted to deprive the extra-legal
government of its influence is to take from it the use of the party
circle and the party column. It may safely be predicted of such
legislation that it will not cause judges to be the actual choice of
the electorate, nor will it eliminate the influence of the politocrats
in judicial elections.

The supposition is that if the influence of the politocrats can be
eliminated the electorate will necessarily make a real choice. But
the electorate does not fail to choose simply because the politocrat
has taken that choice from it. On the contrary, the politocrat rules
because the electorate regularly goes to the polls too ignorant
politically to make a choice of judges. That ignorance is due to the
fact that the office of judge is inconspicuous and the determination of
who are qualified for the office is unusually difficult, even when an
expert in possession of all the facts makes the choice. The proposed
method of election does not in the least promise to eliminate the
fundamental difficulty of the political ignorance of the electorate.
If, therefore, it succeeded in eliminating the influence of the
extra-legal government the question would still remain: Who would
select and retire the judges? There is no reason to believe that the
electorate would make any real choice. Electors would be just as
politically ignorant as they were before. They would be just as little
fitted for making a choice as they were before. The elimination of
extra-legal government does not give to the electorate at large the
knowledge required to vote intelligently. Who, then, will select and
retire the judges? The newspapers might have a larger influence, but
they would probably be very far from exercising a controlling influence
or uniting in such a way as to advise and direct the majority of the
voters out of an electorate of several hundred thousand how to vote
for a large number of judges. Special cliques would each be too small
to control a choice and combinations would be too difficult to make.
The basis of choice would, therefore, be utterly chaotic. There could
be neither responsibility nor intelligence in the selection of judges.
The results reached would depend upon chance or upon irresponsible and
temporary combinations. With every lawyer allowed to put up his name
by petition and chance largely governing the result, the prospect is
hardly encouraging.

There is no reason to believe, however, that any such disorganized
method of choice would be tolerated. The most potent single power in
elections would end it. That power would be the extra-legal government.
Its organization would be put to greater trouble in advising and
directing the politically ignorant how to vote, because it would have
been deprived of the party circle and party column. But the advice
and direction could and would be given and followed. Each competitor
for the power of the successful extra-legal government would have its
slate of candidates. Each would prepare separate printed lists of
its slate to be distributed at the polls and the voter would for the
most part, as now, take the list of that organization he was loyal to
or feared the most, and vote the names upon it no matter where they
appeared upon the ballot. Thus the appointment and retirement of judges
by the extra-legal government would, after perhaps a period of chaos
and readjustment, again appear. Perhaps it would be even stronger as a
result of reaction and deliverance from the chaotic conditions which it
relieved.

It is impossible to escape the conclusion that in a metropolitan
district with one hundred thousand voters and upward, the selection
of judges by the electorate is practically impossible. It is equally
certain that the judges in such a community must be selected by some
appointing power. The real and only question is: What is the best
method of appointment?

No method could be worse than that which we now employ. Appointment by
the politocrats of the extra-legal government is so obscure, especially
when effected by primaries, that they are under no responsibility
whatever in naming judges and they have little interest in the due
administration of justice. Indeed, the situation is worse than that,
for they may have positive reasons for wishing a type of man from
whom they may expect certain courses of action which will actually be
inimical to the efficient administration of justice, particularly in
criminal causes; or they may be interested in filling judicial offices
with those who have done more in the way of faithful service to the
organization than in the way of practice in the courts.

From time to time, therefore, suggestions have come from members
of the bar of ways and means for reducing the influence of the
appointing power of the politocrats. It has been suggested that the bar
association should be given power to place upon the official ballot
a bar-association ticket upon which might appear candidates who had
been nominated by any of the other political parties. This would give
the candidates approved by the bar association and also by any other
political party considerable advantage over those appearing in only one
party column. To that extent it would throw a greater influence into
the hands of the lawyers. The question, however, has arisen whether
this would result in a greater power in an unbiased bar association to
select good judges, or in the lining-up of lawyers in groups which were
controlled by the leaders of the politocrats. The effort is frequently
made to provide that all judges shall be elected at a special judicial
election. This course may prevent the recall of judges because of an
upheaval on national issues. It does not, however, interfere with the
appointment of a nomination by the politocrats in the first instance.
Even when the nominations are all by petition and the party circle
eliminated and the names of candidates rotated upon the ballot, resort
must still be had to the extra-legal government to escape absolute
chaos and selection by mere chance.

Nothing of great value can be accomplished until it is recognized that
the judges in a metropolitan district are certain to be appointed and
that the only proper appointing power is one which is conspicuous,
legal, subject directly to the electorate, and interested in and
responsible for the due administration of justice.

This principle may be worked out in a variety of ways.

When the state executive as now constituted is given power to appoint
directly, or to appoint indirectly by designating the nominees to be
voted upon, the principle is worked out in one way. There are, no
doubt, serious objections to both methods of executive appointment. The
governor of the state is, of course, in the midst of politics. He is
also in the midst of a legislative program, and the temptation is very
strong to trade judicial places for the progress of administration
measures in the legislature. Then the governor is not particularly
responsible for the administration of justice, that being a matter for
the judicial department rather than the executive. But this much can
be affirmed, that any mode of appointment by the governor, since it is
conspicuous and legal, and since the governor is directly subject to
the electorate, carries with it a measure of responsibility which is
not found where the appointment is secret and by the politocrats of the
extra-legal government. Appointment by the governor is better than the
present misnamed plan of popular election.

It might be suggested that the power of appointment could be lodged in
the highest appellate tribunal of the state, the members of which had
terms of considerable length, but were subject to election. This again
is, no doubt, open to objections. But again, it could not possibly be
a worse method than the one now employed. Judges of such courts are
more easily than governors made responsible for the due administration
of justice. They would have stronger motives than the governor for
appointing men who could best carry on the administration of justice.
No body of men in the state has a better opportunity for determining
the character and ability of lawyers, since they examine the work of
lawyers continually with most minute care.

It has been suggested that vacancies in the judiciary should be filled
by the appointment of the chief justice of the metropolitan district.
He in turn should be chosen by the electorate of the district at fairly
frequent intervals--viz., every four or six years--and in him should be
vested large powers to oversee and direct the mode of organizing and
handling the business of the court.[35]

The objection which will at once be raised to this is that it presents
an opportunity for the politocrats to obtain vast power by securing
control of the chief justice. It is not difficult to demonstrate that
the lodging of the appointing power in the hands of a responsible and
conspicuous chief justice controlled by the politocrats would be much
less inimical to the administration of justice than the appointment
of judges in secret and without responsibility by the politocrats
directly. The chief justice would, of course, only fill vacancies
occurring during his short term. The guaranty to the public that such
vacancies would be filled with fairly efficient men lies in the fact
that enormous responsibility for the due administration of justice
is focused upon a single man. Every complaint of inefficiency and
impropriety comes home to him. Such a man cannot carry on the work
of the court without the most efficient judges that he can possibly
secure. This leads necessarily to procuring as judges members of the
bar who have, in a successful practice in the courts, had a proper
service test. Assuming that such a chief justice were the recognized
deputy of the politocrats he would be driven by the necessities of
the case, by the conspicuousness of his position, and the force
of public opinion, to do his utmost to persuade the politocrats to
permit him to appoint efficient men. That would produce an appointing
power far better than the secret and utterly irresponsible method of
direct appointment by the politocrats which now exists. A much more
desirable result than this, however, is to be expected. Such a chief
justice would be so important and conspicuous an officer and his power
so great, that in his nomination and election the desires of the
electorate as a whole would have to be much more fully considered than
is the case where the politocrats appoint to a nomination and seek the
election of an obscure member of a bench composed of thirty members and
upward.

All fear of the chief justice having too much power and falling too
much under the influence of the politocrats and extra-legal government
may be dissipated by making adequate provision for his retirement. The
chief justice would, of course, be subject to impeachment. He might
also be retired by a legislative recall by a vote of three-fourths of
the members of the legislature after an opportunity for defense and
for cause entered upon the journals,[36] or by the governor upon an
address of both houses of the legislature.[37] The fact that the chief
justice held office only for a short term would in fact subject him
to a recall by popular vote at the end of each period. To this might,
with perfect propriety, be added the recall of the chief justice and
election of his successor by popular vote during the regular term.
Surely such safeguards are ample to protect the electorate from any
abuse of the appointing power conferred upon the chief justice.

A chief justice who is retired at the end of his term by failure to be
re-elected should, however, have the right, if he so chooses, to remain
one of the judges of the court upon the same footing as an appointed
judge and subject to assignment to duty by his successor. This is
proper because the election goes only to the matter of his political
position as the chief justice exercising an appointing power and
administrative powers with respect to the organization of the court
and the way its business is handled. The electorate has nothing to do
with his fitness to decide litigated causes. Furthermore, the fact
that a failure to be re-elected will not send the chief justice back
to the practice of the law, which he has given up, will insure greater
independence on his part while holding office as chief justice. It will
also be an act of fairness to him, since a profession once given up
during six or eight years for a place upon the bench is difficult and
frequently impossible to recover. In addition to this it is best for
the administration of justice itself that ex-chief justices who cannot
regain their position in practice and are pitiful reminders of former
greatness should not be left derelicts at the bar. But if a chief
justice upon failure to be re-elected chooses to take his place as a
judge in the court, he should not be permitted again to be a candidate
for chief justice. It will not do to have in the court the rival of the
sitting chief justice with a motive for making trouble.

The principal objections to the appointment of judges have been that
they necessarily hold for life and become arbitrary and exercise
judicial power in a manner distasteful to the lawyers, their clients,
and a majority of the electorate. It will usually be found on analysis
that the objectionable exercise of judicial power by an appointed judge
is due to the fact that appointment means a life tenure. Hence the real
objection to the appointment of judges as such is that when appointed
they have held office for life. The entire objection, therefore, to
appointment may be met by limiting the tenure of the appointed judge
and by a variety of provisions for his retirement. He would, of course,
be subject to impeachment. He might very well in addition be subject
to some mode of legislative recall such as was proposed for the chief
justice. His term may be limited to five years or seven years, thus
requiring a retirement at the end of each period unless a reappointment
is made. The judge appointed by the chief justice may even be subject
to recall by popular vote according to one or the other, or both, of
two plans. The appointment might be for a probationary period--say
three years--at the end of which time the judge must submit at a
popular election to a vote on the question as to whether the place
which he holds shall be declared vacant. This is not a vote which puts
anyone else in the judge’s place, but a vote which can at most only
leave the place to be filled by the appointing power. Such a plan
must necessarily promote the security of the judge’s tenure if at the
popular election his office be not declared vacant. After surviving
such a probationary period his appointment should continue for--let
us say--six or nine years. At the end of that time the question might
again be submitted as to whether his place should be declared vacant.
If thought necessary further to protect the electorate from the bogey
of an appointed judge, he might be subject to recall at any time upon
the petition of a percentage of the electorate. But this recall, like
the other, should present only the question of whether the judge’s
place should be declared vacant, leaving the vacancy, if created, to
be filled by the appointing power. The danger in the existence of both
these plans of popular recall is that they may be used with more effect
by any extra-legal government of politocrats than by the electorate
at large. It is highly improbable that the electorate would find it
necessary or advisable to use either mode of recall. The presence of
either mode would, therefore, furnish a means whereby an influence of
the politocrats upon the judiciary could be continuously maintained.

It is, however, a grave mistake to suppose that judges exercise
their judicial power in a distasteful and arbitrary manner merely
because they hold for life or during good behavior. An arbitrary or
disagreeable course of action by a judge arises principally from the
fact that he is subject to no authority which can receive complaints
against him and act upon those complaints by way of private or public
criticism and correction of the judge. The best protection against
arbitrary and disagreeable actions by judges is a duly constituted
body of fellow judges who hold a position of superior power and
authority and to whom complaints as to the conduct of judges may
be brought and who may investigate those complaints and exercise
a corrective influence. When a considerable number of judges in a
metropolitan district are provided with a chief justice and organized
for the efficient handling of a great volume of business, the means
of securing the exercise of a corrective influence over their conduct
at once appears. Such a court must be organized into divisions for
the purpose of handling specialized classes of litigation. In a
metropolitan district like Chicago there should be an appellate
division with from six to nine judges sitting in groups of three, a
chancery division of six judges with a corps of masters, a probate and
family relations division with at least four judges and a corps of
masters and assistants, a common-law division with fifteen to eighteen
judges and a corps of masters, and a municipal court division with
thirty-three judges. The chief justice should be the presiding justice
of the appellate division and each of the other divisions should have
a presiding justice with large powers over the way in which the work of
each division is handled. The chief justice and the presiding justices
of divisions should form a judicial council or executive committee,
with considerable powers over the way the court as a whole is run. To
such a judicial council there should be committed the power to remove
from office any judge, other than the chief justice, and to reprove,
either privately or publicly, or transfer any such judge to some other
division of the court for inefficiency, incompetency, neglect of duty,
lack of judicial temperament, or conduct unbecoming a gentleman and a
judge, for the good of the service, or to promote its efficiency. The
power of removal by the council should be exercised only where written
charges have been filed and after an opportunity has been given to the
judge to be heard in his own defense.

The existence of a judicial council composed of the chief justice
and the presiding justices of the different divisions of the court,
each one responsible for the way in which the work of his division
is handled, suggests also a practicable way in which to stimulate
efficiency at the bar, provide a service test for candidates for places
on the bench, and subject the appointing power of the chief justice
to a slight but reasonable control. The judicial council should be
given power to appoint upon an eligible list for each division of
the court twice as many members of the bar as there are judges in
the division. The chief justice, in appointing judges to a place in
any division of the court, should be required to select from this
eligible list on the occasion of every other appointment at least.
The operation of such a plan would be to place in the hands of the
presiding judges of divisions an express authority to suggest what
members of the bar practicing before their divisions respectively would
make satisfactory judges for each division. It would also operate to
stimulate the efforts of lawyers and promote competition to secure
places upon such eligible lists by specialization in practice before
particular divisions. This would develop an expertness in the handling
of litigation which does not now exist on the part of any considerable
number of the bar.

We may then conclude that in a metropolitan district with a hundred
thousand electors and upward judges cannot be elected. They must
be appointed. If an election is attempted it is a failure and
appointment results. The worst method of appointment is the secret
and irresponsible appointment by politocrats. The most promising is
the conspicuous and legal appointment by a chief justice elected at
large in the district at frequent intervals. Every objection to such a
plan and every prejudice against it may be met by provisions for the
retirement of the chief justice and his appointees by impeachment,
by legislative and popular recalls, and by the power of the judicial
council to discipline and remove any judge other than the chief
justice. It is even possible under such a plan to promote efficiency by
securing an eligible list of men whose experience in practice under the
eyes of the judges insures excellence in appointment.


FOOTNOTES:

[35] The following extract from the letter of Mr. Charles H.
Hartshorne, of Jersey City, N.J., to the author dated November 4, 1912,
explains the plan of administering the chancery jurisdiction in New
Jersey: “The constitution of New Jersey provides that ‘The Court of
Chancery shall consist of a Chancellor.’ The Chancellor is appointed
by the Governor with the approval of the Senate, for a term of seven
years. He is usually reappointed, though it is an open question whether
this office is an exception to the custom that judicial officers of the
superior courts shall be reappointed, regardless of their political
affiliations, so long as they are capable of giving efficient service.
That custom has resulted in our having upon the Bench of the higher
courts, judges who have served for very long periods--twenty-five years
and upwards.

“A number of years ago, the work of the Court of Chancery having
become too great for one judge to dispose of, a statute authorized the
appointment by the Chancellor alone (without confirmation by any other
authority) of a Vice-Chancellor, as assistant. By further statutes, the
number of these was increased to seven. The Court now consists of a
Chancellor and seven Vice-Chancellors, who sit separately in different
parts of the State. The Vice-Chancellors are appointed for seven-year
terms. That Bench is generally regarded as the strongest in the State
and has given entire satisfaction to the Bar and to the public.

“The Vice-Chancellors hear interlocutory motions in nearly all cases
under a standing rule of the Court, but they conduct trials and final
hearings only upon an order of reference from the Chancellor. After
trial they write the opinion of the Court, which is usually reported,
and advise the decree, which is then signed by the Chancellor. No
appeal lies from their decree to the Chancellor, but all such decrees
may be appealed directly to the Court of Errors and Appeals.

“Theoretically, the Vice-Chancellors are merely referees who report and
advise the Chancellor, the decree being made by him upon their report.
In actual practice however, they are members of the Court of Chancery,
in fact (but not in form) making the final decree of that Court.

“The system has worked very satisfactorily in respect to the character
and attainments of the members of that Bench, but the work of the Court
in populous cities is a good deal in arrear. This is due to the volume
of business having outgrown the number of Vice-Chancellors.”

[36] Illinois Constitution 1870, Art. VI, sec. 30.

[37] Massachusetts Constitution, chap. iii, Art. I; 38 and 39 Vict.,
Ch. 77 (Jud. Act 1875), sec. 5.




CHAPTER XVIII

CHANGES IN THE PLAN OF THE FEDERAL GOVERNMENT


The federal government is already organized upon a plan of centralized
power. The ballot which it presents to the voter is always short. The
voter casts his ballot for a president and vice-president every four
years and for one congressman from his district (and perhaps one or two
from the state at large) every two years. United States Senators hold
office for six years. Until the adoption of the recent 17th Amendment
two were elected by each state legislature. Now two are elected at
large in each state. The judges are appointed by the president with
the approval of the Senate. The Senate has a general veto power on
Executive appointments. Such in form at least is the organization of
the national government.

Today, however, extra-legal government has laid its hand to some
extent at least upon the government at Washington. In congressional
districts where extra-legal government flourishes, it has become
the strongest and most persistent single force in the election of
congressmen. Naturally it has its loyal supporters in the House of
Representatives of Congress. As the power of extra-legal government
grows and becomes more widespread its influence in that house will
grow. It is, of course, entirely immaterial whether a supporter of
the extra-legal government is labeled Democrat or Republican. He is
a Democrat when he comes from a district where the vote-directing
machine operates successfully under that name. He is a Republican when
the vote-directing machine operates successfully under that name. The
power of extra-legal government which has appeared in the Senate of the
United States is the direct consequence of the power of extra-legal
government in the state legislatures. Of course, extra-legal government
does not often control a majority of the members of both houses of a
state legislature. A considerable minority, however, who hold together
under a strong leadership can wield a large influence. One of the
reasons for the persistence of the fight upon Mr. Lorimer and its
popular support throughout the country was the fact that his election
represented to the popular mind in a striking manner the invasion of
the United States Senate by extra-legal government. No matter how free
from corruption Mr. Lorimer may have been, the power so openly wielded
by those allied with extra-legal government to place him in the United
States Senate presented itself to the people of the country as a menace
to the nation. Yet a similar invasion has been going on steadily in
quieter ways. Every gain of extra-legal government in the control
of state legislatures has been a step farther toward a predominant
influence in the United States Senate. It has been for the most part
through senators who have supported, or at least felt that they must
placate the power of extra-legal government in their states, that
that government has obtained its hold upon the federal judiciary. The
president’s appointments must be approved by the Senate. Senatorial
custom, sometimes called courtesy, places the control of the Senate’s
approval in the hands of the senators from the state for which the
judicial appointment is made. The two senators from the state sometimes
divide the federal judicial districts in the state between them. Thus
has the president’s appointment to the lower federal bench been placed
at the mercy of two, or perhaps a single senator. The president on
his part may have a popular legislative program which he is pledged
and is attempting to secure action on from Congress. The support of
senators is necessary. The tendency, therefore, on the part of the
president to allow senators the upper hand in his appointments to the
bench has been very marked. Extra-legal government has in the last
few years become a visible force in the selection of the president
of the United States through its power to control delegates sent
to the National Convention. At both the Democratic and Republican
National Conventions in 1912 the numerical strength of the delegates
representing extra-legal government in particular states or districts
of states was very marked. In the Republican Convention these delegates
and their allies not only controlled the situation, but actually took
issue with the delegates who represented the electorate and beat them.
This was not a matter which could end when one faction cast more legal
votes at the convention than the other. The contest was one between the
forces of extra-legal government and delegates for the moment actually
representing the popular choice. The contest between two such forces
can be settled only when one or the other has been swept from the
field. The triumph legally of the forces of extra-legal government in
the Republican Convention could have no other logical outcome than the
formation of a new party.

The recent change effected by the seventeenth amendment providing for
the popular election of senators was made avowedly for the purpose
of ousting the control of extra-legal government in the Senate. We
may be sure, however, that the change will not in the least tend to
drive extra-legal government from the field at large. It follows,
therefore, that the politocrats will use all their power to control
nominations and elections to the United States Senate. The office of
senator, however, is conspicuous and extremely important. This fact
alone will force the politocrats to put forward or support candidates
of some independence and popular strength. This will naturally result
in the United States Senate becoming far more representative of the
electorate than is the House. We may, therefore, expect the Senate to
become less conservative than the House. If this continues in a marked
degree, it means the entire decadence of the House as a legislative
body. Its power will be exercised by the leaders of the house majority
in the interests of a conservative check upon the Senate. Whether this
condition would survive the elimination of extra-legal government in
our local municipal and state governments seems beyond the possibility
of prediction.

Other proposals for changes in the plan of the federal government have
been made with the avowed object of eliminating extra-legal government
by politocrats. The influence of extra-legal government in national
conventions is to be permanently overthrown by presidential primaries.
If any change were to be made in respect to the judiciary it would
be in the direction of making them elective, and perhaps subject to
the recall. No doubt nominations through primary elections would be
advocated for all elective officers. Newspapers recently gave space
to the demand that the postmasters should be elected by the voters
of the post-office district. Whatever temporary advantage over the
extra-legal government there may be in any of these expedients, they
represent the application of the very principle of government which
in the long run produces, and must always produce, the disease from
which we are suffering and desire to be cured. This is our process
of curing the ills of democracy with more democracy. It is the case
of more poison for one already overcome. Have the past thirty years
not yet taught us that to increase the burden upon the voter is to
reduce the most intelligent member of the electorate to the darkest
political ignorance and thus to enable the professional adviser and
director to the politically ignorant voter to cast his ballot for him?
Every additional appeal to the electorate is a step toward that scheme
of government which is most favorable to the growth and development
of extra-legal government by politocrats. The federal government is
suffering because in the village, the township, the city, the county,
and the state, such political burdens have been placed upon the voter
that he cannot perform his political functions intelligently. He is
forced to delegate them to those who make it their profession to carry
his political burdens for him. To them he turns over the privilege of
casting his ballot for him. It would be amusing if it were not tragic
that the increase of the cause should be selected as the cure.

The elimination of extra-legal government from our villages, townships,
cities, counties, and states has become a national problem. The proper
functioning of the national government is impossible while these
sources contribute to the existence of extra-legal government. The
reduction of governmental agencies to two--a local municipal government
and a state government--the application of the principle of the
commission form of government to both, so that the electorate casts its
ballot for one officer only in each, and the consequent disruption of
extra-legal government, are essential to the restoration of the federal
government to political health. The plan of the federal government
taken by itself and as an instrument of government in its appropriate
sphere is still admirable. If it were the only governmental agency in
the field, extra-legal government would never have had a chance to
achieve power in the United States. If any improvements in the plan of
the federal government are ever found necessary they should be in the
direction, first, of uniting the executive power and the legislative
power, and second, the elimination of the Senate veto upon executive
appointments. The former may be accomplished by placing the control
of the executive power in the hands of the president and his cabinet
or in a so-called council of state composed of the president and his
cabinet officers and also requiring that each cabinet officer must be
a member of one of the houses of Congress. This would at once place
the control of the executive power of the nation in the hands of the
leaders of the majority in both branches of the legislature, or at
least in the leaders of that branch which more effectively represented
the electorate. The president would cease to carry his present load
of responsibility for executive action and legislative progress. His
office would be important, for he would be that human agency necessary
to place the representatives of the victors at the polls in control of
the executive power. His influence as a member of the council of state
would be considerable. With a veto power over legislation he would
still retain an enormous one-man power.




CHAPTER XIX

CONCLUSION


The conflict between extra-legal government and the popular demand
for a true democracy is as irresistible as was the conflict between
the South and the North over the institution of slavery. Extra-legal
government, like the South, represents a vast property interest which,
while at first seeking protection, soon became aggressive in its desire
to extend its power and its institutions. As the North sought to live
with the institution of slavery in the South, to compromise with it
and to check it here and there, so we have been trying to live with
extra-legal government, to compromise with it and to check it when
we saw it in an especially obnoxious form. But as the fight for and
against slavery was never settled till slavery was abolished, so the
war on politocracy will never cease till some great national crisis
has given birth to a new political philosophy and a sound practice
under it, which will sweep extra-legal government from the field. That
philosophy is summed up in three prosaic words: The Short Ballot. They
are the emancipation proclamation for our government. The faithful and
complete application of the principles underlying the short ballot
in our local and state governments will be as important and perhaps
as difficult a step for us to achieve as was the emancipation of the
slaves.




Transcriber’s Notes

Errors in punctuation have been fixed.

Page 142: “proprietory interest” changed to “proprietary interest” to
match the original source.