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Nationwide Initiatives Amendment Bill:

A Generic State Referendum Draft Bill for
an Application to Congress for a Convention
to Propose a U.S. Citizens' Initiatives Amendment

Print and download formats:  Adobe PDF, Word DOC

Preface

The purpose of this Generic State Legislative Bill is to serve as a reference for state legislation to initiate the Nationwide Initiatives Constitutional Amendment process.

This bill can be adapted in all 50 states to processes as legislation alone without a referendum.

However, the generic version shown here is for the preferred method—a legislature-initiated referendum process. This combines the authority of the States and of the People with overwhelming constitutional implications. A statute referendum process is available in 23 states (AZ, AR, CA, DE, ID, IL, KY, ME, MD, MA, MI, MO, MT, NE, NV, NM, ND, OH, OK, OR, SD, UT, and WA). The remaining states all have other forms of referendum process, primarily constitutional, for which variants of the generic bill may be permissible.

It can also serve as a reference for direct statute initiatives in 14 states (AZ, AR, CA, CO, ID, MO, MT, NE, ND, OK, OR, SD, UT, and WA). Conceivably, it might be adapted for the 5 states (FL, IL, MI, NV, and OH) that have direct constitutional initiatives or the 5 states (AK, ME, MA, MS, and WY) that have indirect legislative or indirect constitutional initiatives.

A State can modify this draft to meet their specific requirements. It anticipates and avoids potential problems in the amendment procedures that Congress has neglected to specify. We offer the generic form below in the hope that it will be a convenient reference that may help to coordinate between the states in arriving at "same subject" or "same general subject" applications to Congress.

Text of State Referendum Bill

State Bill Comments

AN ACT Relating to a ********** State Referendum for an application by the ********** State Legislature to the United States Congress. The application calls for a Convention to propose an U.S. Constitutional Amendment authorizing U.S. Citizens’ Initiatives.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF **********:

Each state has a standard format to start a bill formally. Eventually, it will generally include the bill number, the House, session, date, sponsoring legislators, etc.

Sec. 1. PROBLEM. Amongst many offenses against the people of ********** State, the U.S. Congress denies their constitutional rights in law or in principle:

1. The Preamble of the U.S. Constitution explicitly intends the federal Government to promote the general well-being of the people. Instead, Congress excessively promotes special interests over the people's well-being.

2. Article 1, Section 2 of the U.S. Constitution asserts that the people shall choose their congressional representatives. To excess, Congress and special interests influence selection of the slate of candidates, financially exclude excellent candidates, influence candidate loyalties, and influence the media content presented to the public.

3. These offences greatly harm the people, these United States and the State of **********. Currently, only Congress has the power to resolve these problems. Congress, however, has long demonstrated that it is unwilling to implement effective solutions and that it is unable to reform itself. Over many years, federal government has fully institutionalized the problems; they are the intractable norm.

This perspective on the Problems addresses the constitutional issues to lay a foundation for the next section. The web page on more general range of Problems is probably too extensive and argumentative to be included in a bill. The form shown here is a rough equivalent of an indictment that includes two of the most egregious legal issues and omits naming other offences.

Sec. 2. RESPONSIBLY FOR SOLUTION. The State of ********** recognizes its responsibility to help produce a solution to these problems:

1. The U.S. Declaration of Independence holds that “whenever any Form of Government becomes destructive … it is the Right of the People to alter … it.”

2. In Federalist #85, the Founding Fathers recognized that “the persons delegated to the administration of the national government will always be disinclined to yield up any portion of the authority of which they were once possessed.” They wrote the Constitution certain that “we may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.”

3. In their wisdom, the Founding Fathers included in Article V a second method of amending the U.S. Constitution so that the States could resolve these types of problems, which are otherwise unsolvable by constitutional means.

4. The ********** State Constitution states:

   (a) Article ***, Section ***: “All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.”

   (b) Article ***, Section ***: “All Elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”

   (c) Article ***, Section ***: “The first power reserved by the people is the initiative.”

This summarizes why state legislators must take action to resolve the problems. They have all take oaths of office to uphold their state duties. The web page on state support extensively argues the issues.

Every state constitution is different from the others and the wording of the bill in (iv) will be different. A web page addressing this topic shows some examples of specific wording.

Of course, the States may find a better or alternative solution. However, if they do not, then failure of the States to support this solution will be a profound blow to the foundations of the United States.

Sec. 3. FORM OF SOLUTION. History has proved that Congress cannot protect the people against congressional excesses and deficiencies. Constitutional separation of powers bars such power from the President, Judiciary, or States. Appointed or elected reform boards cannot have this power. Constitutionally, this leaves only the people to protect against congressional excesses. However, congressional excesses have largely nullified the people’s federal voting power. To solve these problems therefore, there remains only the power of nationwide Citizens’ Initiatives.

In essence, the argument here is that this approach is the only one to do the job. A possible alternate is Senator Gravel's plan, but that appears to present other and greater difficulties.

Sec. 4. LEGISLATIVE INTENT. The Legislature’s responsibilities to the people compel action. ********** State shall support a Citizens’ Initiatives Amendment to the U.S. Constitution. The intent of this act is to start a constitutional process that could lead to Citizens’ Initiatives for change. Given the nature of the legislation, the State shall seek the people's approval by referendum. If other states do likewise, referenda will also demonstrate the unity of the U.S. people and the States, bringing momentous constitutional authority to bear on any procedural disputes with Congress.

Passage of this bill is only the start of a lengthy process towards a constitutional amendment. Though the Sates have not had a Convention since the one framing the current Constitution, any Article V Second Method procedural disputes will pitch Congress against both the States and the People. Theoretically, at least, the States and the People carry great constitutional weight.

Sec. 5. PROTOTYPE TEXT OF INITIATIVES AMENDMENT. ********** State’s prototype text of the U.S. Citizens’ Initiatives Amendment for consideration by the Convention is:

The Convention of the States will generate the final text or, if Congress decides to preempt the Convention as it always has in the past, then by Congress's acceptance of the text. Thus, the application must be adequate to deny Congress the opportunity to water down or finesse the Amendment.

Nationwide Initiatives Amendment Text

Amendment Comments

Authorization

1.1 Amendment X of the United States Constitution shall be, and hereby is, amended by appending the following sentence: "The first power reserved by the People is the Initiative."

The appropriate point to start this Initiatives Amendment is by modifying Amendment X - Powers of the States and People.

1.2 Article I, Section 1 of the U.S. Constitution shall be, and hereby is, amended by inserting the following phrase at the end of the sentence: ", and in the People through their power of Initiative".

1.3 This Constitutional Amendment authorizes nationwide United States Citizens' Initiatives. It establishes a deliberative U.S. Citizens' Initiatives Assembly to manage the initiative process and to select the Initiatives that appear on the ballot. The Assembly shall consist of a randomly selected cross-section of the People. The Assembly shall be independent, protected from tampering, responsible only to the People, and funded by the U.S. Government as an inalienable entitlement of the People.

The Assembly is an independent self-perpetuating organization of the People. It is not a Fourth Branch of Federal Government.

Constitutionally, this clause is almost sufficient if Congress were to complete the details. However, since Congress is a source of many problems that this Amendment will resolve, the people cannot allow Congress to furnish the details. Consequently, this Amendment is of necessity relatively lengthy and has two references.

Initiatives

2.1 U.S. citizen groups and organizations shall communicate Proposed Initiatives to the Assembly but shall not abuse this right.

The Amendment taps the creativity of the people and their organizations to propose Initiatives. To keep order, the Assembly has the power to control abuse.

2.2 Direct democracy by Direct Initiative shall be, and hereby is, authorized and granted to the People as an additional and parallel power to those granted to the U.S. Congress, and each House thereof, and to those powers that Congress has assumed, will assume, and could assume. Direct Initiatives shall have the power to do and undo all manner of things that Congress has done, does, and will do. Direct Initiative powers shall include, but are not limited to legislation, constitutional amendments, impeachment, implied powers including all powers under Article I Section 8 Clause 18, rules, policies, procedures, precedents and customs, appointments, remuneration, perquisites, and ethics. The sole limitation on the power of Direct Initiatives shall be exclusion of impeachment trials by the Senate under Article I Section 3 Clause 6.

The people must have parallel authority to Congress to enforce checks and to correct deficiencies in any area that the people deem necessary. Congress has been and will be creative at annulling constraints, so Initiatives may repeatedly remedy related matters.

Implied power, e.g., using the "basket clause," has required and enabled Congress to assume many things not in the Constitution. For maximum clarity, to avoid dispute with Congress, and to minimize need for Supreme Court interpretation, the basket clause and a list show specific matters Initiatives can address. By placing a sole limitation on the power of Initiative, the Supreme Court will be more likely bound to interpret that other powers are not limited.

Initiatives will ensure that Congress operates, and knows that it must operate, for the people's benefit not for the benefit of Congress, Congresspersons, and their friends.

2.3 For matters that in Congress require majority votes, an Initiative shall require a double majority comprising a majority of the votes in a majority of the Congressional districts and in a majority of the States. For matters that in Congress require two-thirds majority votes, an Initiative shall require a double supermajority comprising a majority of the votes in two-thirds of the Congressional districts and in two-thirds of the States. In addition, an Initiative must always pass by a simple majority of the nationwide Electorate.

The voting majorities for initiatives follow the same majorities as those that the Constitution defined and Congress currently uses. Statistical anomalies can occur in elections, so the Amendment also requires a simple majority.

2.4 A Direct Initiative shall take effect when passed by the Electorate's double majority vote and immediately after certification of the vote. A Direct Initiative shall not be subject to any veto. Congress shall not change or overrule a Direct Initiative except as permitted in the Direct Initiative. A later Direct Initiative, or a nationwide Referendum with the same voting criteria as the Direct Initiative, may change or overrule an earlier Direct Initiative or Referendum.

The people cannot permit the President to veto Initiatives or the Congress to overrule Initiatives, otherwise the government could easily frustrate the purposes of this Amendment.

Congress does not currently have a referendum process in place, but may do so in the future. The Amendment gives initiatives and referenda equal precedence, the most recent prevailing.

2.5 Article V of the U.S. Constitution shall be, and hereby is, amended by adding a second clause consisting of the following two sentences: "The People shall have the power by Direct Initiatives to propose U.S. constitutional amendments to the States when passed by the Electorate's double supermajority vote. Upon certification of a passing vote, the proposed constitutional amendment shall be as if Congress had deemed it necessary, proposed it, defined the mode of ratification, and submitted it to the several States for ratification by their legislatures or by conventions."

In the future, the people's fundamental right to alter their government becomes more explicit by the power to propose constitutional amendments. This requires a revision of Article V. It is best introduced as a second clause rather than alter the first clause, which is already complex and upon which many judicial opinions rely.

Recent Supreme Court rulings — e.g., requiring constitutional rather than legislative process for term limits and line item veto — alone mandate inclusion of this clause.

Note that two-thirds of the Assembly must approve the Constitutional Initiative before it gets on the ballot. Then, the people must approve it by a double supermajority vote. Finally, three-fourths of the states must still ratify it. Passage by this process will therefore be a more severe test. However, whereas Congress was reluctant to disturb their status quo, the people will probably use this process more.

2.6 The Assembly shall submit Indirect Initiatives to Congress. Congress may modify them. Within one year after submittal, Congress shall bring it to a conclusive vote in both Houses subject to Presidential veto or refer it back to the Assembly. This shall not limit the Assembly's right to propose similar or related Direct Initiatives.

States seldom use their indirect initiative process. The Amendment's indirect process is easy to use. It will be efficient and effective to encourage Congress to take up matters without going to the time and cost of a nationwide vote.

2.7 Advisory Initiatives shall be non-binding polls of the nationwide Electorate.

Advisory (i.e., consultative) initiatives seek the people's guidance. For example, an advisory initiative may find acceptable common ground for nationwide compromise on complex issues or define the scope of a future initiative to avoid unnecessary discord.

Assembly

3.1 Members shall be the People's sworn deputies obligated to act in the best interests for all U.S. citizens and their Constitutional rights. Members shall vote their own independent un-coerced opinion after open-minded deliberation. They shall not participate in voting for any group affiliation, vote trading, sale or favor. The Assembly shall pay Members for their services.

Member's independence is important for the Assembly to function effectively. It is necessary therefore, that special interest of Members should not form association within the Assembly.

3.2 The Assembly shall specify the random-selection method. It may vary its Membership criteria from all Citizens to a willing subset of Citizens, and from Citizens entitled to vote to Citizens registered to vote, by Direct Initiatives passed by a double supermajority vote. Once selected, an Assembly Member shall serve a mandatory duty of citizenship as a private person for a term specified by the Assembly. Assembly service shall have priority over other citizen's duties and work including professional, military, or business services. Failure to serve and fulfill a Member's obligations shall be punishable unless excused for excessive hardship by a Federal Court in accordance with guidelines specified by the Assembly. No Citizen may serve twice.

The Assembly Rules state that a simple random sample from all Citizens entitled to vote must initially generate the list of Members. The executive branch will probably choose from the Social Security master list—removing those not eligible to serve from the selection. If a better database of Citizens becomes available, e.g., from Homeland Security, then that may be used.

Initially, all those selected must serve because it appears that permitting Members to decline for less than excessive hardship could permit large special interests to influence the Assembly. Though service may sometimes be an imposition, it is a reasonable duty of citizenship.

3.3 The Assembly shall be the sole authority to manage the initiative proposal process and to select and qualify all U.S. Candidate Initiatives. The Assembly shall obtain whatever advice and assistance it deems necessary. The Assembly shall have the right to subpoena testimony and enforce that right through Federal Courts. The Assembly shall ensure that Candidate Initiatives are worthy and comprehensible and shall not overburden the Electorate. The Assembly shall specify the requirements for citizen groups and organizations that may propose Initiatives, shall define abuse of the initiative process, and shall control the ease of proposing Initiatives.

State initiatives have indicated the number of Initiatives on which an electorate can reasonably vote. There must be a single authority to control the number of proposed Initiatives, prevent abuse, and to select the most important, otherwise the process will be chaotic.

The Assembly must have powers to demand information similar to Congress to perform its check and balance function.

3.4 The Assembly shall be self-governing in accordance with its Rules. It shall have the obligation and right to sustain itself. It shall obtain approval to change its budget and Members' remuneration by Direct Initiative. The U.S. Government shall deposit to the Assembly's account its total annual budget one month in advance of its initial convocation and each anniversary thereof. It shall have the power to borrow on the credit of the United States. If these sources are not available, this Amendment may be funded by philanthropic sources and the States. The Assembly shall be exempt from taxes or levies. The Assembly may incorporate and dissolve in States of its choice. For legal action against them, this Amendment grants the Assembly and its Members the same protections and immunities as Congress and congresspersons.

Whereas Congress can change all congressional rules, the rules constituting the Assembly's Charter require Direct Initiative approval of the People. In this way, the People assume full control of the Assembly and the Initiative process insofar as they do not violate the Constitution—government is not involved.

To give the Assembly a defined legal status, it can incorporate itself. However, litigation can breach corporate shields with relative ease, so the Members must have legal protection against potential personal attacks. Congressional protection has proved very adequate.

To cover the possibility that Congress fails to fund the Initiatives process, then the final source can be philanthropic funds and the States.

3.5 By Direct Initiative passed by a double majority vote of the Electorate, the Assembly may form Subsidiary Citizens' Assemblies as necessary to perform separable work. Their Members shall have the same status as Members of the Citizens' Assembly but may serve for different periods.

For example, it may eventually prove best that a separate body should provide ballot opinions to the voters about the Candidate Initiatives.

Implementation

4.1 The Congress, the President, the Courts and the States shall have power to enforce this article by appropriate legislation, executive authority, judgment, and action. They shall implement expeditiously and cooperatively the intentions of this Amendment and as outlined by the reference documents "Government Actions" and "Assembly Rules." They shall convene the Assembly within one year of this Amendment's ratification. These obligations shall continue upon successor Congresses, Presidents, Courts, and States until the People by Direct Initiative affirm that the intentions of this Amendment have been satisfied.

Implementation details are not appropriate in the Constitution and are therefore in a reference document. These Government Actions can never be sufficiently precise to ensure absolute compliance. In the event that a recalcitrant Congress, President, Courts, and States should fail their obligations, these obligations shall fall upon their successors. This will permit the People to use their electoral vote to enforce compliance. Although the Amendment requires governments' cooperation, the Assembly can always remedy any defects by Initiative—its initial convocation must take place on time despite any defect or reason.

4.2 The Governments shall not tolerate any law, regulation or actions that impede or limit the use of U.S. Initiatives or the Assembly’s access to information. The Governments shall preserve, protect and defend the Assembly's independence. During the time periods specified by the Assembly, the Governments shall protect, defend, and punish violation of, the Assembly's and each Member's and family's privacy, freedom from tampering, freedom from press, media intrusion or exploitation, and failure of duty to serve. Punishments shall penetrate all shields to reach decision makers, include mandatory jail terms, and use fines based on percentage of assets.

Assembly Members and their families are private persons. The Amendment must protect this status. The situation is similar to a Grand Jury except that the Assembly would be even more tempting to media. The Member's status must be in the Amendment, or the Supreme Court might allow media access under Amendment 1. Corporate shields and vast assets protect the most potentially dangerous offenders; they must anticipate discomfort of punishment equally no matter their status.

4.3 This Amendment hereby adopts the reference document "Assembly Rules" for the Assembly and binds it to follow them. This Amendment does not incorporate the reference documents "Government Actions" and "Assembly Rules."

By adopting the rules for the Assembly, they become binding on the Assembly yet not part of the Constitution. The Assembly's Charter limits its authority to current needs and requires nationwide Initiatives to change these limits.

Guarantee Clause Clarification

5.1 Article IV, Section 4 of the United States Constitution shall be, and hereby is, amended by appending the following sentence: "State referendums, and United States and State initiatives selected or qualified by popular signature petition or Citizens' Initiatives Assembly, are consistent with and not a contravention of a republican form of government."

Though there are good reasons to believe that nationwide Initiatives are permissible under the Constitution, arguments can dispute this view. The Supreme Court has indicated that it might regard this as a political issue falling within congressional purview. This would be unacceptable, so this Amendment must resolve the issue.

Repeal Safeguard

6.1 This Amendment pre-authorizes that the People may repeal this Amendment. Article V of the United States Constitution shall be, and hereby is, amended by appending the following two sentences at the end of the second clause: "Ten years and again twenty years after a U.S. Direct Initiative first appears on nationwide ballot, the Assembly shall include a Candidate Direct Initiative to repeal the Amendment when passed by a double majority vote. Should the Electorate choose repeal, Initiatives previously or concurrently passed shall remain as if they had originally been enacted by Congress and Congress may then change or overrule them as regular business of the Congress subject to Presidential approval."

This Amendment is for the benefit of the People who ordained and established the Constitution. Therefore, it is up to the People to repeal the Amendment if they find it unsatisfactory. Inclusion of a graceful repeal process is reassurance to some who otherwise might be unwilling to support it. With greater difficulty, a constitutional amendment may also repeal it—as Amendment XXI repealed prohibition.

State Ratification

7.1 The article shall be inoperative unless, within seven years from the date of the submission hereof to the States, the legislatures of three fourths of the several states, or if the Congress proposes them by conventions in three fourths thereof, shall have ratified it as an Amendment to the Constitution.

Congress has consistently added this standard clause to recent Amendments.

Copyright © 2003-2008,
Citizens for U.S. Direct Initiatives, All Rights Reserved.

www.InitiativesAmendment.org
 www.CUSDI.org

Version 05.17
 May 09, 2008

Copyright © 2003-2008,
Citizens for U.S. Direct Initiatives, All Rights Reserved.

www.InitiativesAmendment.org
 www.CUSDI.org

Version 05.17
 May 09, 2008