Charles McCarthy

“ Even under cabinet government in foreign countries which may be changed by public sentiment, there exists no such budget idea as in the American states. Indeed, those countries provide means whereby, if the budget does not pass at all, the departments and institutions still continue. How can the experts in our commissions and the thinkers in our institutions ever be aggressive and wide awake if they always have to be on the defence against a minority? ”

“ We see the farmer, the groceryman, the country lawyer, the successful manufacturer, the man of business, all grappling entirely unprepared, with the problem of making laws that represent every phase of industrial life. A few years ago the simple legislation could be easily handled by these men but now the great problems of the railroads, the telegraph, the telephone, insurance, and the many complex things of our modern life, make it simply impossible for one man however bright or educated he may be, to act intelligently upon one-tenth of the subjects which come before the legislature. ”

“ Why, the powerful interests do not have to resort to bribery! Their experts can win by the irresistible force of argument alone. They must hold the balance, for they have the brains of the land and pay well for them.
Is it any wonder that many good people throw up their hands with joy and say "Thank God the legislature is over"? ”

“ When some new invention comes into being, legislation must deal with it; when some new situation arises through the growth of new industries, some new law must be made restraining, encouraging or in some way regulating these new conditions. It all goes to show how unfitted is our old representative government to meet the conditions to-day and how utterly helpless any one man is to meet these intricate problems. ”

“ Does it seem reasonable that all the talent should be used in interpreting laws, in curing their defects and that absolutely nothing should be one in a scientific way to assist the man who makes them? The construction of the law is a far harder task than the criticism or even the interpretation of it. It involves the interpretation of it; it involves a knowledge of the theory of government and because of the enlarged sphere of government to-day, a sound knowledge of economic conditions. Our legislators can furnish the brains and the will; all that they need is the technical assistance. ”

“ Is it any wonder that the clamor of public opinion is not heard within our legislative halls, and that the making of needed laws goes on so slowly? What is the remedy for all this? We look about us and on the whole find our judiciary composed of able men. Our administrative bodies have not yet reached so high a standard but we are every day developing administrative bodies which are becoming more and more fit to take charge of the business of the state but how about the legislature? ”

“ As to our department in Wisconsin, we are not trying to influence our legislators in any way, we are not upon one side or another of any question nor are we for or against anybody or anything; we are merely a business branch of the government. We are not dictating legislation but are merely servants of the able and honest legislators of our state, clerks to gather and index and put together the information that these busy men desire; it is a business proposition. Question after question asked of us by the legislature is investigated in as scientific a manner as time and means permit. ”

“ Under these conditions it is remarkable what progress has been made with our statute law. In spite of all criticism and faults when one looks over our statute law he is amazed that it is so good. When he considers that it was made under the conditions herein described; when he considers that state after state came into the Union, each making an entirely new constitution, each adopting an entirely new body of laws, he cannot but feel proud of the inherent ability of the American people. ”

“ So much is involved in a budget bill that the members cannot consider the items separately as they should and are inclined to either cut it arbitrarily or accept it as a whole. In Wisconsin each bill must be considered on its merits, fought over and either killed or passed. Nothing could be more desirable if at each stage, the members have before them a statement of the actual finances of the state. The budget bill—meaning one inclusive bill containing all appropriations—belongs in a responsible cabinet government and not in a government such as ours. ”

“ In general legislators have not been corrupt nor have they been inefficient. Our statute volumes are monuments to the ability and common sense of our legislators. No other people under the same conditions could have done so well.
Representative government must be judged in the end by its product and the immediate tangible product of representative government is the statute. If we are to construct a building to-day and the structure is to be a large one or of any real importance, there must be an architect. ”

“ The only way in which they can be improved is to use scientific methods in the making of them. Every improved business method together with technical, clerical help should be secured in order that the man who passes the laws may have at his command the knowledge necessary to make laws good, just and worthy to stand for all time.
If our state legislature gains in the confidence of the people, in like proportion will our supreme court and judicial bodies profit. Our courts will not feel called upon to make decisions which apparently defeat the will of the people. ”

“ As Walter Bagehot says: "There is a diffused desire in civilized communities for an adjusting legislation; for a legislation which should adapt the inherited laws to the new wants of a world which now changes every day. It has ceased to be necessary to maintain bad laws, because it is necessary to have some laws. Civilization is robust enough to bear the incision of legal improvements." England is a good example of the new activity in legislation.
Any flood of legislation may easily be stopped by the legislators if they determine to consider only the essential and to disregard the remainder. ”

“ He does not wish to be understood as opposing the budget system. On the contrary, he firmly believes that all appropriations together with careful revenue estimates should be laid before the legislature every two years so that an account of the stewardship of commissions and institutions may be made to a cent, but there should be a number—an ever-increasing number—of institutions on a permanent basis so that the legislature by a majority vote may at any time, raise or lower the appropriation as it sees fit—but not by a minority vote. ”

“ A cabinet government may present its estimates and recommended expenditures and permit the legislative body to fight over them within limits but the administration as a result of its acceptance or rejection, stands or falls, consequently the party member is whipped into line and supports those who make the estimate, unless the protest from public opinion is so great that he dare not do so. If he does not stand by those estimates his party goes out of power and a new administration comes in to make a more acceptable and popular budget. ”

“ And yet this Armstrong committee shows us a way of making laws and of compelling their enforcement better than boards and commissions. If we have some department working with our legislature and have that department between the sessions serve the investigating committees, we can be sure that there is always a check upon the action of our boards and commissions and that there is always at hand a remedy for evil in the hands of the people themselves. They can always ask for an investigating committee for any commission and the report of that committee will probably result in a good, sound law. ”

“ No matter how clear and simple the language may appear at first sight, doubts will arise, ambiguities will be disclosed, inconsistencies between different sections will present themselves, and a series of never-ending decisions will be inaugurated, construing and interpreting the statute, till each section becomes overlaid with a body of judge-made commentaries forming a new set of precedents and a new jurisprudence. No greater fallacy is indulged in by the advocates of codification than that it will diminish litigation. ”

“ Does it not seem reasonable that the law which is the expression of the will of the people and upon which good administration is founded, should be scientific—should be based upon the best experience of mankind? ”

“ Our constitutions have been purposely overloaded because the people who made them wished to incorporate certain things which could not be overturned by the caprice or corruption of legislators. As time goes on, if the people find that the product of legislation is based upon a careful scientific study, they will regain confidence in the legislature and again trust it.
There is a widespread agitation at the present time for centralization and nationalization, a movement which strives to have one after another of the state functions absorbed by the national government. ”

“ Wisconsin is fortunate to escape some of these unimportant limitations, although one very perplexing difficulty is constantly arising. In this state there is but one city of the first class—Milwaukee. The constitution forbids special legislation so that all its legislation must be made general for cities of the first class. It is practically impossible to draft a law for that city which will certainly stand the test of constitutionality under the complex limitations and the numerous court decisions involved. ”

“ We must have experts to show us practical plans and to arrange for heating, lighting and sanitation. If we do not, disaster is the result. In building the statute which regulates everything in life, is it not the sensible thing to employ an architect and let him work out the plans under our general direction and ask him to change them again and again until we are satisfied? ”

“ That the lawyer desiring to advise his client as to some simple, readily foreseeable question of law should be obliged to consult hundreds of volumes, and thousands of precedents, perhaps only at the end to find that there is a hopeless division of authority, and that he knew just as much about it in the beginning as at the end, is certainly a situation so serious as to demand some remedy, if any be possible. ”

“ The department now has four expert draftsmen during the session at the service of the legislature and about twenty-five librarians, clerks, research workers, etc.
Has there been criticism? Yes, but it is chiefly confined to this one point; it makes it too easy for a man to draft a bill! Is it a just criticism to say that the carpenter has tools which are too good? What is really meant is that too many bills are drafted. There are too many bills drafted but there are no more in proportion, considering the great agitation going on in this state than in other states. ”

“ Divided courts and reversals have left the lawyer helpless as well as the layman of the legislature. The courts have often indulged in reckless use of the power to declare laws unconstitutional on the slightest technicalities. The fourteenth amendment to the federal constitution has been very efficacious in restricting state legislation, as has also the broad interpretation of federal statutes by the federal courts. On the other hand the simple industrial conditions of fifty or a hundred years ago have given place to the present era of wonderful inventions. ”

“ At the present time in nearly all of our states, an able lawyer may go before a committee composed of good farmers and merchants and though he may not speak the truth, he will sometimes have that committee absolutely at his mercy. He can tell them privately or in committee that a certain bill is unconstitutional or has been a failure where tried and defy individual members to answer him; he has behind him many clerks to gather statistics of all sorts for his use before that committee. ”

“ There should be a trained draftsman connected with the department—a man who is a good lawyer and something more than a lawyer—one who has studied legislative forms, who can draw a bill, revise a statute and amend a bill. It is essential that help such as a man of this type can render, be given to the legislator when he desires it. ”

“ No one would buy land in Texas without having seen the land. You might buy land in a lake or in the bed of a river if you followed such a plan; you would at least have some one look up your abstract. But we permit our legislators to copy a Texas statute which may be twenty years old, may have been modified twenty-five times, may be entirely unsuited to our conditions and which may be in the end unconstitutional—we let our legislators incorporate such statutes in our statute books without a protest. ”

“ If the institution or department wants this money it will have to accept our terms." That is, the minority dictates the terms. This little joker has not been realized by our wise economists and accountants who have been called upon to help legislatures to better their financial procedure but it has destroyed the spirit of institutions, it has debauched commissions and departments and resulted in stagnation in many states. In some states where things are peacefully sleeping, we hear nothing of its influence; but let an institution or commission become really active and note what will happen. ”

“ If business interests have excellent lawyers to look after their legislation, the people should secure the same kind of men to help their representatives. If the business interests secure statisticians, engineers and scientific men, the public should do likewise. If great judges and lawyers are constantly working upon the problems of interpretation of laws, surely men of equal ability could well be consulted or retained by the people's representatives in the construction of these laws. ”