CHAPTER IV

PROBLEMS OF LEGISLATIVE ORGANIZATION AND

LEGISLATIVE METHODS

There is hardly any kind of intellectual work which so much needs to be done not only by experienced and exercised minds, but by minds trained to the task through long and laborious study, as the business of making laws. This is a sufficient reason, were there no other, why they can never be well made but by a committee of very few persons. A reason no less conclusive is, that every provision of a law requires to be framed with the most accurate and long-sighted perception of its effect on all the other provisions; and the law, when made, should be capable of fitting into a consistent whole with the previously existing laws. It is impossible that these conditions should be in any degree fulfilled when laws are voted clause by clause in a miscellaneous assembly. John Stuart Mill, Representative Government, chap. v, p. 109.

THE representative assembly, its organization and functions, and its place in popular government are among the greatest problems of politics. As a device to render popular participation in government feasible, the representative assembly has become almost universal in modern governments. Only small communities such as a few of the cantons of Switzerland seem to find it practicable to take care of public functions without the introduction of the representative idea. Despite long experience with representative government, legislative bodies have failed to fulfill the high hopes of the advocates of popular representation. The growth of a lack of confidence in legislative assemblies and the limitation of their functions are among the apparent tendencies of modern times. Elihu Root, in the closing address to the New York Constitutional Convention of 1915, said:

We found that the legislature of the state had declined in public esteem and that the majority of the legislature were occupying themselves chiefly in the promotion of private and local bills, of special interests-private and local interests upon which apparently their reelections to their positions depended, and which made them cowards, and demoralized the whole body.1

REASONS FOR LACK OF CONFIDENCE IN LEGISLATIVE Bodies IN THE UNITED STATES 2

It is a well-known fact that legislative bodies, from Congress to municipal councils, are in disrepute in the United States. Originally the legislatures of the states held a dominant position, owing to the fact that the executive departments were weak. The governor had no independent position and no veto power, and the judiciary was partially subject to the legislative department, which included among its powers the most important functions of government. From this position, wherein the legislature was the central organ of government, a condition has developed which has occasioned the lack of confidence in state legislatures.

They have too often been corrupt, negligent, and wasteful, they have in many instances made laws for the benefit of private persons and corporations, and bartered away charters and franchises; and they have even gone so far in some states as to repudiate portions of the public debt. These charges are not based upon mere hearsay evidence. The discreditable record of many of our state legislatures is written in the constitutions of the states and is described more fully in the debates of the conventions which framed those constitutions. In fact, the legislative history of the nineteenth century is the history of a steady reduction in the power of the legislature.3

1 New York Constitutional Convention (1915), Record, p. 4458.

2 For a discussion of the causes of the lack of confidence in American legislatures, see P. O. Ray, An Introduction to Political Parties and Practical Politics. (Revised Edition.) (Charles Scribner's Sons, 1917), chaps. xviii and xix; and James Bryce, Modern Democracies, chaps. Íviii and lix (The Macmillan Company, 1921).

C. A. Beard, American Government and Politics. (Third Edition.) (The Macmillan Company, 1920), pp. 516–517.

The decline in public esteem is shown not only in the many restrictions placed upon state legislatures, but also in the general feeling of discontent, disapproval, and disgust with legislative results both in state and in nation. In addition to the many limitations and restrictions which are to be found in elaborate state constitutions, the recent adoption of the initiative, referendum, and recall1 by some of the states bears significant testimony to the judgment as to the unsatisfactory conditions and inefficient methods which now prevail in legislative bodies.

It is a curious phenomenon that, with the growth of the principles of democracy and with the increased participation of the people in public affairs, there has resulted a general decline in the esteem with which legislatures are held by the American people. The reasons for this decline are difficult to analyze. A few of the obvious defects which have tended to foster lack of confidence may be briefly mentioned. These are, personnel, length of session and congestion of legislative dockets, restrictive rules of procedure and the committee system, and the lobby and the dominance of special private interests.

Personnel. Though it has been frequently demonstrated that the members of the legislature are "fairly representative of the various groups and divisions of the population," it is nevertheless true that few of those who are elected to the legislature have any special preparation either for the drafting or for the consideration of bills; and very few, indeed, have the necessary qualifications to consider the economic, industrial, and legal problems which are entailed in the legislative process. Legislators are elected from small districts, and the influences surrounding them are local and provincial. They regard themselves as agents of groups and of special interests which desire government aid and protection. The chief business of the legislator is 1 Cf. supra, pp. 110-117.

2 See S. P. Orth, "Our State Legislatures," Atlantic Monthly, December, 1904; reprinted in P. S. Reinsch, Readings on American State Government (Ginn & Co., 1911), pp. 41 ff.

often conceived as the securing of funds from the public treasury which will benefit "my district." Furthermore, it is the practice to re-elect only a small portion of those who constitute the legislative body, with the result that the majority of those in the lower House and usually a large percentage of the members of the upper House comprise a new element in the legislative body, who get their first training and experience during the session. It is estimated that only about one-third of each new legislature has had experience in legislative work. So long as it is not customary to re-elect members of the legislature or to select those who have by training and experience secured a preparation for the requirements of legislation, it will be impossible to have an effective legislative body. Moreover, it is frequently the practice not to select from among the strong and capable members of a constituency, but to send to the legislature a member who is not representative of the best type of citizens in the community. There are many difficulties which account for this practice; nevertheless, it is one which is detrimental to the general effectiveness of the legislature.

It is not to be expected that legislators will become expert lawmakers. It is out of the question that members will be able to investigate intricate subjects, examine legal technicalities, draft bills, or pass upon details. . . . So long, therefore, as we have representative government, we must expect the members of the legislature to be ordinary, intelligent men without expert knowledge.1

Length of Session and Congestion of Legislative Dockets.One of the chief difficulties in the legislative process is the short time within which legislatures are required to complete their work. It is customary to prescribe a limit of from thirty to ninety days for a biennial session of the state legislatures. In this time a great many bills are presented, and many more are passed than it is possible to give adequate and critical consideration. The volume of legislation,

1 John A. Lapp, "Making Legislators Law Makers," Annals of the American Academy of Political and Social Science, March, 1916.

along with the limitations of time, has resulted in the adoption of rules of procedure by which it is intended that business shall be done quickly without any detriment to the public interests. As a result of the short session a great part of the time is taken in the presentation of bills and in the consideration of measures in committee, leaving a very small amount of time for the passage of measures. Thus, it is not unusual for fifty or a hundred bills to be passed on the last few days in a rush which gives little or no time to the careful consideration of separate measures. Furthermore, constitutions contain rules of procedure which tend to hamper the legislature rather than to expedite the legislative process, such, for example, as the requirements for the reading of bills, which must either be ignored or perfunctorily performed by reading titles. The practice of bringing in special rules to govern procedure with respect to matters in which the legislative leaders are concerned, and of setting aside rules of procedure by unanimous consent, often fosters contempt for constitutional limitations.

Another matter frequently commented upon relative to American legislatures is the enormous number of bills presented at each legislative session and the great number and variety of bills enacted into laws. Different causes contribute to the grist of the legislative mill. In the first place, individual members can introduce bills freely instead of securing the consent of the House or a committee in advance as was formerly the practice in Congress and in the state legislatures. Again, a large number of bills approximating as high as 60 per cent in certain legislatures are introduced at the request of individuals or societies.1 Many duplicate bills or bills dealing with substantially the same matters are introduced. It is not unusual for ten or more bills to be presented to accomplish the same purpose. Finally, it is regarded as enhancing the prestige of a mem

"Legislative Procedure in the Forty-eight States," Bulletin No. 3, Nebraska Legislative Reference Bureau, p. 9.