Direct democracy: A comparative study of the theory and practice of government by the people 9781526102782

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A comparative study of the theory and practice of government by the people ‘As we hurtle forward into the twenty-first century with its unparalleled availability of information and communication technology, the world’s great democracies continue to be organized around eighteenth-century principles of representative governance. Doctor Qvortrup’s new book illustrates the powerful new modes of direct political participation that are emerging around the globe – most important, the initiative and referendum – and shows how democratic government can be updated and augmented to better meet the challenges of our modern world.’ Professor John Matsusaka, Charles F. Sexton Chair in American Enterprise at the University of Southern California ‘The originality and great value of the book lies in the ability of the author to step back from traditional constitutional or political scientist approaches of the subject, and to view the referendum in its present, contemporary, context... [and] the insightful analysis of the conception of direct democracy among political thinkers...like Machiavelli or Marsilius of Padua, Condorcet and Carl Schmitt.’ Professor Laurence Morel, University of Lille, France

Described by the BBC as ‘The world’s leading expert on referendums’, the author, Matt Qvortrup, draws on his experience as a political advisor to the UN and the US State Department, as well as he draws on his extensive academic knowledge of direct democracy. This combination of theoretical prowess and practical experience makes Direct democracy a unique contribution to the political science of direct democracy, which should be on the reading lists in both graduate and undergraduate courses in political science in Britain and abroad. Matt Qvortrup is Senior Lecturer in Comparative Politics, Cranfield University Cover photo by Lachlan Bamford

www.manchesteruniversitypress.co.uk

ISBN 978-0-7190-8206-1

9 780719 082061

QVORTRU P

Should people decide on more political issues? Should citizens be allowed to propose legislation? Should they even be allowed to recall politicians if they do not live up to their expectations? These questions and many others form the subject of this timely book. Combining the latest scholarship and academic research with current debates, Direct democracy is essential reading for political scientists, lawyers, journalists and anybody who is interested in the challenges facing democracies today. Direct democracy shows when government by the people can improve democratic governance. It provides empirical evidence that more democratic engagement often improves the lives of ordinary citizens. In addition to presenting an up to date review of the empirical literature, the book provides a survey of the political philosophers who have theorised about direct democracy. It is the central tenet in the book that the demand for direct democracy is a direct consequence of the demand for more consumer choices. Like consumers want individualised products, so voters want individualized and bespoke policies.

DIRECT DEMOCRACY

DIRECT DEMOCRACY

DIRECT DEMOCRACY A comparative study of the theory and practice of government by the people M AT T QVORT RU P

Direct democracy

Direct democracy A comparative study of the theory and practice of government by the people Matt Qvortrup

Manchester University Press Manchester and New York distributed in the United States exclusively by PA LG RA V E M A CM IL L A N

Copyright © Matt Qvortrup 2013 The right of M. H. Qvortrup to be identified as the author of this work has been asserted by him in accordance with the Copyright, Designs and Patents Act 1988. Published by Manchester University Press Oxford Road, Manchester M13 9NR, UK and Room 400, 175 Fifth Avenue, New York, NY 10010, USA www.manchesteruniversitypress.co.uk Distributed in the United States exclusively by Palgrave Macmillan, 175 Fifth Avenue, New York, NY 10010, USA Distributed in Canada exclusively by UBC Press, University of British Columbia, 2029 West Mall, Vancouver, BC, Canada V6T 1Z2 British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library

Library of Congress Cataloging-in-Publication Data applied for

ISBN 978 0 7190 8206 1 hardback First published 2013 The publisher has no responsibility for the persistence or accuracy of URLs for any external or third-party internet websites referred to in this book, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

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Contents

List of tables and boxes vi Acknowledgementsviii Introduction: bespoke democracy 1 The political theory of direct democracy: the theoretical justification for citizen involvement  2 Citizen initiated referendums: an empirical assessment 3 The citizens’ legislative initiative: a comparative analysis of the experiences in EU countries 4 A comparative analysis of the recall of elected officials 5 Can the voters be trusted?: the case of European integration 6 A case study of the Irish referendum on the Lisbon Treaty 7 The British referendum on the Alternative Vote in comparative perspective 8 Judicial review of direct democracy 9 Regulation of direct democracy: international comparisons and patterns Conclusion: The age of supply-­side politics?

1 12 26 57 74 89 97 108 130 141 151

Index156

Tables and boxes

Tables 0.1 Provisions for referendums and initiatives in European countries10 2.1 Provisions for initiatives in Western democracies 27 2.2 State adoption of the initiative in the US 29 2.3 Turnout in November 2006 midterm elections 41 2.4 Citizens’ initiated referendum results in New Zealand 45 2.5 Public perceptions of politicians and the political process 47 2.6 Should results of citizen initiated referendums be legislated by Parliament? 48 2.7 Provisions for initiatives in Germany 50 2.8 Themes in German direct democracy votes 51 3.1 Citizens’ initiatives and relevant articles regulating the right to initiate legislation in the constitutions of EU member states 59 3.2 Signatures required for citizens’ initiatives in EU member states at national level 62 3.3 Initiatives and treatment in the Polish Parliament (1999–2009)68 3.4 Factors contributing to provisions for citizens’ initiatives 72 3.5 Number of eligible voters necessary to trigger a legislative initiative for each EU country 73 4.1 Typology of revoking mandates of elected representatives 78 4.2 California recall attempts 1913–2009 80 4.3 Successful recall attempts in California 1913–2009 (statewide offices) 80 4.4 US States with recall provisions for assembly members and governors 81 4.5 Recall provisions in democratic countries 85



Tables and boxesvii

6.1 Irish support for, and opposition, to the Lisbon Treaty during 2008 6.2 The result of the referendum in Ireland 2008 7.1 Electoral changes and attempted changes in independent states since 1980 7.2 Logistic regression of the propensity to hold referendums on electoral reform 7.3 Outcomes of electoral reform referendums since 1980 7.4 Average of opinion polls on the introduction of AV in the UK, 2010–11 7.5 Result of the 2011 referendum on the Alternative Vote

99 101 110 113 118 122 126

Boxes 1 Boris Johnson: the phone-­in primary or X-­Factor politics in practice2 2 Condorcet’s Jury Theorem: a mathematical proof of the benefits of direct democracy? 18 3 Direct democracy Libyan style 22 4 Smacking: a case study 46 5 Citizens’ initiative on female representation in Poland, 2010 66 6 The Wisconsin recall, 2011: from adversarial politics to the politics of accommodation? 82

Acknowledgements

Thanks to Carsten Berg, Theo Schiller, Maija Satala, Laurence Morel, Dr Tomaž Deželan, Luis Bouza Garcia, Peter McLaverty, Anna Rytel-­ Warzocha, Arend Lijphart, Rein Taagepera, Adrian Blau, Paul Wilder, Caroline Morris, Asheem Singh, Tony Wright, Quintin Oliver, Rick Ridder, Helena Catt, Joop van Holsteyn, Neil O’Brian, Tim Knox, Mark MacGregor, John Matsusaka, Ben Reilley, M. Dane Waters, Caroline Tolbert, Josep Colomer, Brendan O’Leary, Nigel Smith, Richard Gordon QC, Vernon Bogdanor and Fiona Thornton. I am grateful to the Constitution Society for inviting me to give a talk at their event at the House of Lords in November 2011, which enabled me to structure my thoughts, and to Michael Dougan, University of Liverpool for inviting me to present a paper at a seminar there in May 2011. I am grateful to Barclay McBain for letting me use material from the columns that I have written for the Glasgow Herald over the years. Lastly, I am grateful to the Centre for Policy Studies for letting me use previously published material from the pamphlet Supply Side Politics (2007). All errors are my responsibility.

Introduction: bespoke democracy

Once we were content with package deals. Now we want choices. People used to buy music albums and even box-­sets. Nowadays, they download selected tracks for their MP3 players. Once, we were happy to watch pretty much whatever was on TV. Now, we want individual choices: we can choose different camera angles when we watch, say, Wimbledon or cricket on the telly. As consumers – as these examples show – we want individualised choices. Welcome to the world of the individual. It is in this context of the ubiquitous individualised shopping lists, that we should see the demand for direct democracy. Political parties, and the system of representative government, are in many ways representative of the old system of one fits all; the system under which we were content with package deals, under which a basket of goods had been selected for us by the benevolent shopkeeper. Sure, we were able to choose between different packages, but the shopping baskets on offer in the political supermarket were – and to some extend still are – essentially the same. This system will no longer do. As individuals and as consumers we are no longer content with a system that leaves us to choose between different packages. This system of the political package deal was suited for the twentieth century when information was limited, sparse and tightly controlled by a few monopolies. But it is not suited for an age characterised by the internet, Twitter, bloggers and ‘bespoke’ consumers. And the system is especially not suited for a time when people are more and more interested in single issues, causes and individual campaigns. More and more we sign petitions. Just consider the example of the Downing Street e-­petition website launched in November 2006. In the spirit of a more technological age, Downing Street now invites visitors to its website to create online petitions on any subject. Others can add their support at the click of a mouse. Within two months of launching the initiative there were 2,860 active petitions. One partition in

2

Direct democracy

Box 1: Boris Johnson: The phone-­in primary or X-­Factor politics in practice When the Conservative Party chose Boris Johnson to be their candidate for Mayor of London in 2007 they did not select the former TV presenter in a committee room from a shortlist of members of the old boys network, though Johnson (old Etonian and Oxbridge) would have fitted the bill. Johnson was chosen by a phone-­in and using the same technology as is used for well-­ known shows such as X-­Factor and Britain’s Got Talent. The Conservative poll was open to all Londoners, regardless of their political affiliation, who registered via a £1-­a-­minute phone line. So far so good, but the fact of the matter was that the turnout was rather low. Boris Johnson got an overwhelming majority of the votes (75 per cent), but only 20,019 votes out of 5.5 million registered voters.1 That only 0.3 per cent of the registered voters bothered to take part in this radically new experiment with direct democracy provides food for thought and suggests, perhaps, that there are limits to the public enthusiasm for direct democracy.

­ articular stood out. 1,274,362 ‘signatures’ were added against road p pricing. The government dropped the proposal unceremoniously!2 For better or for worse we live in a consultative democracy. Since 1997 there have – according to Cabinet Office figures – been more than 500 consultations per year. This means that there are 1.5 new consultations every day. This figure has continued at the same level since the Conservative-­ Liberal Democrat coalition government took over in 2010.3 But back to the main theme. The fact of the matter is that we now vote online and support causes – not political parties. While 75 per cent of us sign a petition every year according to Eurobarometer,4 the combined membership of political parties is below the total membership of The Royal Society for the Protection of Birds.5 So while we are, in fact, more (not less!) political than ever before, we are no longer happy with the system of representative democracy has it has existed hitherto. Turnout in elections drops and we trust the system less and less. Even the government admitted as much. In a report, former Prime Minister 1

 3  4

http://news.bbc.co.uk/1/hi/uk_politics/7014739.stm (accessed 1 Sept. 2011). http://news.bbc.co.uk/1/hi/magazine/6354735.stm (accessed 15 Nov. 2012). www.number10.gov.uk/take-part/public-engagement/government-consultations. www.parliamentarybrief.com/articles/email-­petitions-­the-­440.html (accessed 15 November 2012).  5 David Butler (2013) ‘The Changing Constitution in Context’ in M. Qvortrup (editor) The British Constitution.  1  2



Introduction3

Gordon Brown talked about ‘a collapse of trust in politics’, and went on to note that the ‘standing of politicians has never been lower’.6 His successor David Cameron did not disagree, and the Conservative Party put forward a number of proposals for citizen involvement, including one that proposed enabling the public to call referendums on local issues where 5 per cent of the public sign a p ­ etition – a clear intent to increase accountability in local government and redistribute power towards the public.7 Though in practice this proposal proved somewhat ­disappointing – as we shall see. Bespoke democracy That the government is willing to submit issues to the voters and let them have a greater input is a new development in historical p ­ erspective – at least in the United Kingdom. In a classic analysis A.H. Birch famously observed that ‘there has been no support at all for the idea that the initiative and the referendum should be adopted as a permanent institution of government, as it is in Switzerland. Views of this kind . . . have never acquired any kind of influence.’8 As recently as the 1990s, Tristan Garrell-­Jones, then the Minister for Europe in a Conservative Government, said the very idea of a referendum ‘was an abdication of the responsibility of the House [of Commons] and of the Government of the day’.9 The public outcry over MPs’ expenses in the United Kingdom in 2009 made these kinds of proposals more popular. In the words of Tom Symons, as a result of the MPs’ perceived disrespect for their constituents the message is clear: ‘the public are not content with the state of representative democracy in Britain today’.10 As a result mechanisms such as legislative initiatives and a greater use of referendums have been put forward. So too have limited proposals for the recall – a mechanism which allows voters to ‘recall’ an elected representative in a special ­election, if enough voters sign a petition. This appetite for – and belief in – the panacea-­like virtues of direct Cabinet Office (2009) Building Britain’s Future (Cm. 7654), London, TSO. The Conservative Party (2009) Control Shift: Returning Power to Local Communities.  8 A.H. Birch (1964) Representative and Responsible Government: An Essay on the British Constitution, London, Allen and Unwin, pp. 227–8.  9 Tristan Garel-­Jones, in House of Commons Debates, Vol. 204, 21 Febuary 1992, Col. 627. 10 Tom Symons (2010) What’s the Verdict on Local Referendums?, London, NLGN, p. 5.  6  7

4

Direct democracy

democracy is not confined to the United Kingdom. In Canada, more precisely in Quebec, Bernard Drainville, a former Parti Quebeçois minister, is an example of a true believer in government by the people. In his view, ‘The bond of trust between the citizen and the political world is broken. It must be repaired. It’s urgent.’ His remedy is similar to the one proposed by his British colleagues, namely ‘a system of popular referendums [which] would put power back in the hands of the people. With the signatures of 15 per cent of registered voters, a referendum could be launched on any topic, including Quebec sovereignty.’ ‘When Quebecers are ready to hold a referendum on their political future, or on another issue, they will hold one,’ Mr Drainville said.11 Yet the proposals put forward by politicians have tended to lack political teeth and have been watered down as they have moved closer to the Statute Book. This is perhaps not surprising. Political parties – and the ‘elite’ – have often lamented the rise of issue politics. It is as if an interest in particular causes, rather than an interest in political parties, was somehow a sign of less sophistication. In fact, it is the other way round. People have become more mature. They are more interested in the policy issues. They are no longer content with being told what to think. They want to make choices for themselves. As in the aforementioned case of music downloads, we want to assemble our playlists in accordance with our own tastes. We no longer want to be told what to listen to. Just as we can decide to have both Mozart and AC/DC on our MP3 players, we can cherry-­pick different policies from different political parties with no regard to artificial ideological coherence and tradition. One of the reasons that mechanisms of direct democracy are so attractive is that they conform to our norms and expectations as individualised consumers. Politics being – in this author’s view – infinitely more important than the contents of our iPods, remains stuck in the consumer model of the 1950s – if not earlier. No political system can be, will be, or ought to be, seen as legitimate if it does not conform to the norms and expectations of the citizens. Moreover, the citizens of today are increasingly individuals, who make individual choices. We see this, for example, in the concept of the so-­ called ‘ethical consumer’, i.e. those people who buy fair-­trade coffee and the like. This individual consumer is not merely an economic agent, but a political actor. This, indeed, is already recognised among political www.nationalpost.com/opinion/columnists/Marois1goes1from1worse/ 5309687/story.html (accessed 25 August 2011).

11



Introduction5

g­ eographers. ‘Ethical consumption campaigns,’ argue researchers, ‘aim to provide information to people already disposed to support or sympathise with certain causes; information that enables them to extend their concerns and commitments into everyday consumption practices’.12 That is, consumers become empowered to act ethically and politically in and through their actions as consumers. But why just rely on the market? Why not extend politics to its natural sphere, the forum, and to the world of voting and collective decision-­making? By allowing people to vote for individual issues in referendums, and indeed by allowing people to initiate votes on single issues (so called citizens’ initiatives); mechanisms of direct democracy provide a remedy for upgrading democracy. The question, of course, is if this is sustainable, if these mechanisms have any value, if they increase trust and choice, or if they – paradoxically – do the opposite, as some have suggested.13 It is in this context we should see the debate about direct democracy. What the debate is about is not traditional models of engagement and deliberation, though that too. What is at stake is an urgent upgrade of the political system’s hardware (its constitutional arrangements) as well as its software (the way we do politics). Karl Marx once argued that revolutions occur when there is a discrepancy between the fundamental underlying structures of society and the political superstructure. When the economic system changes, when the way we consume, produce and interact in the marketplace evolves, then begins ‘an era of social revolution. The changes in the economic foundation lead sooner or later to the transformation of the whole immense superstructure.’ That is, ‘at a certain stage of development, the material productive forces of society come into conflict with the existing relations of production’.14 Without carrying the analogy too far, we may be at a critical junction in history. The underlying structure of society, the way we think, the way we consume and so on, is out of sync with the way we govern our societies. We live in the world of the individualised consumer, of mass information and choice, yet the political structures are still those of the collectivised society of the post-­Second World War era. Nick Clarke, Clive Barnett, Paul Cloke and Alice Malpass (2007) ‘Globalising the Consumer: Doing Politics in an Ethical Register’, Political Geography, Vol. 26, No. 3, 231. 13 Liz Gerber (1999) The Populist Paradox, Princeton, NJ, Princeton University Press. 14 Karl Marx (1977) A Contribution to the Critique of Political Economy, Moscow, Progress Publishers, p. 6. 12

6

Direct democracy

But, of course, we cannot simply transplant the consumer model from its natural setting into the world of politics. The task here is to inquire if a system of direct democracy would work. To do so we need to look at the different systems of direct democracy, from the right to petition legislation (e.g. as in the case of the legislative initiative – analysed in Chapter 3 below) through more hard-­hitting models like referendums, citizens’ initiatives (Chapter 2) and mechanisms for recalling elected individuals (Chapter 4). Later in the book we look at the more practical side of direct democracy, like the courts and direct democracy (Chapter 8), as well as looking at the practical rules governing the process in Chapter 9. In between these chapters we consider case studies of citizen politics, ranging from the British AV Referendum (Chapter 7) to the Irish Referendum on the Lisbon Treaty (Chapter 6) and consider if citizens are likely to understand the issues put before them (Chapter 5). So, all in all, a pretty full menu! The political consumer and political theory The mechanisms on paper, at least, provide the ‘political consumer’ or ‘customer’ with the opportunity of selecting their personal choices. But this does not mean that the old system is entirely obsolete. The system of representative government is not doomed because we introduce mechanisms of direct democracy. Just as we still watch general news bulletins, buy package holidays etc., there is still a market for ‘one size fits all’ products in politics. It is just that this is not the only option. Politically – so the argument runs – we want to have our cake and eat it. Whether this is possible – or ultimately desirable – is the question that this book seeks to answer. John Stuart Mill noted that ‘the meaning of representative government is, that the whole people, or some numerous portion of them, exercise through deputies periodically elected by themselves, the ultimate controlling power’.15 Mill stressed the public education ‘which every citizen of Athens received from her democratic institutions’, and contrasted these engaged citizens favourably with ‘those who have done nothing in their lives but drive a quill, or sell goods over the counter’. The private citizen, noted Mill, ‘is called upon, while so engaged, to weigh interests not his own; to be guided, in case of conflicting claims, by another rule than his private partialities; to apply, at every turn, principles of maxims J.S. Mill (1991) ‘Considerations on Representative Government’, in On Liberty and Other Essays (ed. John Gray), Oxford, Oxford University Press, p. 269.

15



Introduction7

which have for their reason of existence the common good’.16 He went on to say that from these considerations ‘it is evident that the only government which [could] fully satisfy all the exigencies of a social state, is one in which the whole people participate’.17 Yet for all his seeming enthusiasm for the edifying effects of political participation, Mill – without offering any argument in support of this – concluded that ‘since all cannot, in a community exceeding a single small town, participate personally in any but some very minor portions of public business, it follows that the ideal type of perfect government must be representative’.18 Was Mill right in thus going against his ideals? Like Mill, we might agree that direct democracy – or mechanisms thereof – is fine in principle but impossible to implement in practice. But the empirical evidence does not support Mill. Indeed, there is little that suggests that chaos and anarchy would result from the use of referendums, initiatives and other mechanisms of direct democracy. John Matsusaka, writing about the American experience with initiatives has found that, The evidence to date shows that initiative states are more responsive to opinion than non-­initiative states when it comes to fiscal policy, parental consent . . . it is also clear that initiative states are more responsive to public opinion about term limits. There is no valid evidence along any policy dimension that initiative states are less (or equally) responsive to opinion than non-­initiative states. The only view that is currently supported by scientific evidence is that the initiative makes policy more responsive to public opinion.19

That this is the case in the US, does not, of course, imply that the same would be true in other countries. The enactment of particular public policies depends to a large extent upon political culture. But there is some evidence that referendums in other countries have some of the same effects. According to a Swiss study, the evidence suggests that, Direct democracy is positively related to some macro-­economic indicators such as low state budgets, low budget deficits and low tax levels . . . for some policies, direct democracy seems to lead to policies closer to the median voter than in purely representative democracies.20 18 19

Mill, ‘Considerations on Representative Government’, p. 255. Mill, ‘Considerations on Representative Government’, pp. 255–6. Mill, ‘Considerations on Representative Government’, p. 256. J. Matsusaka (2004) For the Many or the Few: The Initiative, Public Policy and American Democracy, Chicago, University of Chicago Press, p. 175. 20 G. Lutz (2006) ‘Direct Democracy in Switzerland’, Representation, Vol. 42, No. 1, p. 45. 16 17

8

Direct democracy

In other words, representative democracy can be complemented with, but not replaced by, mechanisms for allowing individualised political choices. Direct democracy (i.e. allowing people to recall their MPs, propose new legislation, etc.) is not a substitute for representative democracy. It is not a system that should be used on a daily basis, but – as we shall see – a last resort: a democratic safety valve. It provides – as we shall argue – a means of rebooting the political hard disk. If all else fails, we turn off the computer and restart it. The same is true for politics. Direct democracies come in different shapes and sizes. Opting for a referendum is the more modest approach. It is based on the premise that voters are given a second say over a policy that has typically been approved by the legislature. For example, in 2007 Irish voters were given the opportunity to vote on the Lisbon Treaty. The rationale behind this was that while more than 90 per cent of the members of the Dáil Éireann (the Irish Parliament’s first chamber) supported the Treaty, the people might not generally support their parties on this far-­reaching issue. The Irish voters wanted to have their proverbial cake and eat it, and perhaps rightly so. A majority of the voters rejected the Lisbon Treaty. Yet they continued to support their parties. This might be seen as the very justification of the referendum. The referendum is – as a matter of logic – a conservative device. It allows the voters to say no. The rationale for this system was, of course, deeply conservative. It had long been a popular view among British theorists that change was dangerous and uncontrollable. David Hume – the Scottish philosopher – represented this view. He wrote: It is not with government as with other artificial contrivances; where an old engine may be rejected, if we can discover another more accurate and commodious, or where trials may safely be made, even though success may be doubtful. An established government has an infinite advantage by that very circumstance of being established . . . To tamper, therefore, in this affair, or try experiments merely upon the credit of supposed argument and philosophy, can never be part of a wise magistrate.21

Hume’s philosophy was developed into a political theory of referendums by the lawyer A. V. Dicey. What Dicey did through his theory of the referendum was to develop a mechanism that ensured that ‘experiments’

David Hume (1754) ‘The Idea of a Perfect Commonwealth’, in David Hume (1982) Essays, Indianapolis, Liberty Fund, p. 24.

21



Introduction9

based on ‘supposed argument and philosophy’ were tested in the court of public opinion; through a popular vote. In some countries – most notably Switzerland and Italy – referendums are held at the citizens’ behest. The voters can trigger a referendum on a proposed law (Switzerland) or on an already enacted law (Italy). The  latter type of referendums are known as abrogative referendums. The referendum is a mild form of rebooting; it allows the voters a second say. The initiative is a bit more radical. Unlike the referendum; the citizens’ initiative is a progressive instrument that allows citizens to propose and vote on legislation or the constitution – and bypass the legislature. We can distinguish between different forms of the initiative, namely: • The constitutional initiative which enables citizens to propose constitutional amendments; • The direct legislative initiative which enables the citizens to propose and vote on laws; and • The indirect legislative initiative which enables citizens to propose laws that will be voted on once they have been debated in the ­legislature. The initiative is more drastic than the referendum. It addresses the legislature’s ‘sins of omission’ rather than merely its ‘sins of commission’. Some people believe that such a mechanism is likely to lead to populism. The evidence, as we shall see, does not really support this, at least not unequivocally, but we shall return to this later. There is a less drastic option, however. In a dozen European countries the citizens can propose legislation. Provided that a specified number of citizens sign a petition, Parliament is obliged to debate a proposal, which may ultimately pass into law. Such a mechanism has recently been introduced across Europe. Sceptics believe that the proposal is unlikely to work. Yet, as we shall see in Chapter 4, experiences with this kind of mechanism have tended to be more positive than critics had assumed. But we can do more than merely vote on propositions and policy issues. We can also change the guards. This is the recall. The recall is the nuclear option. In certain countries and states citizens can take the drastic step of recalling politicians who have lost their trust or behaved in a way they consider to be improper or inappropriate. This is rare not least because the recall (the mechanism that allows the voters to hold a special election to recall their representative) is comparatively uncommon (it is mainly used in some American states, some German Länder and a handful of very different countries ranging from Taiwan and Romania to Ethiopia, the Philippines and Venezuela).

10

Direct democracy

Table 0.1:  Provisions for referendums and initiatives in European countries Country

Initiative

Abrogative referendum

Austria Belgium × (Local level) × (Local level) Cyprus Czech × (Local level)  Republic Denmark* Estonia Finland France Germany × (Länder level) × (Länder level) Greece Hungary × × Iceland Ireland Italy × Latvia Lithuania × × Luxembourg Malta Moldova × Netherlands × (Local level) Poland × × Portugal × × Romania × Sweden Switzerland × × Slovakia × Slovenia* × Spain UK

Plebiscite

Constitutional Optional referendum referendum

× (Federal level)

× × ×

×

× ×

×

× × × × × × × × × × × × × × × ×

× × × × × × × × × × × × × × × × ×

* Parliamentary Minority Vetos Sources: www. iri-­europe.org/and www.c2d.ch/ (accessed 4 November 2012)

In the United Kingdom, we have – on the face of it – had very little experience with referendums. This is true for the national level. It is, however, less true for the local level. As Rallings and Thrasher noted in a research paper: A less formal facility to hold referendums has existed for well over 50 years as a sort of concession to local democracy. This was codified by the Local Government Act 1972 which allowed electors (citizens) in authorities occupying the lowest tier of local government, parish councils, to require the district council in whose area they were located to hold an advisory referendum on an issue of concern. These ‘initiative’ polls were accompanied by few controls over matters such as question wording and



Introduction11 campaigning. The scope for local referendums was widened by the Local Government Act 2003. Principal local authorities were given powers to conduct a poll about any matter relating to ‘services provided in pursuance of the authority’s functions or the authority’s expenditure on such services’, or about ‘any other matter if it is one relating to the authority’s power to promote the well-­being of its area’. (Section 116). However, because it was for the authority to determine who was to be polled and how the poll was conducted and because the result would not be binding, these are strictly termed ‘local polls’ rather than referendums as such.22

That we have been here before – that great reforms have been introduced with considerable fanfare but with little effect – provides food for thought. The question is if things have changed or if the talk about direct democracy is just another case of plus ça change, plus c’est la  même chose remains to be seen. An answer to this question will be attempted in the following pages.

Colin Rallings and Michael Thrasher (2009) ‘“The ‘Nos’ Have It”: Using Referendums in Sub-­ national Policy-­ making in Britain’, Paper prepared for Western Political Science Association conference, Vancouver, March, p. 2.

22

1

The political theory of direct democracy: the theoretical justification for citizen involvement Since the French Revolution and certainly for the better part of the past 100 years, representative democracy has been the norm. Joseph Schumpeter – an economist and political theorist – summed up the prevailing view in his acclaimed book Capitalism, Socialism and Democracy: [Democracy does] not mean and cannot mean that the people actually rule in any obvious sense of the terms ‘people’ and ‘rule.’ Democracy means only that the people have the opportunity of accepting or refusing the men who are to rule them. But since they might decide this also in entirely undemocratic ways, we have had to narrow our definition by adding a further criterion identifying the democratic method, viz., free competition among would-­be leaders for the vote of the electorate.1

There has been a lot of proverbial water under the equally proverbial bridges of democratic thinking since then. Voters might not have been quite so knowledgeable in 1942 as they are now. Moreover, Schumpeter might just have been plain wrong. Jürgen Habermas, the German philosopher, has challenged this view by asking the rhetorical question: ‘if the opinion of the electorate is irrational, is the election of representatives less so?’2 Habermas has a point. Research suggests that voters often have a rather limited knowledge of who their representatives are and what they stand for. A survey in France from 2007 (conducted by the newspaper Metro) found that only 61 per cent of the voters were able to identify the ideological position of their representatives in the National Joseph Schumpeter (1942) Capitalism, Socialism and Democracy, London, Routledge, p. 242.  2 Jürgen Habermas (1989) ‘Ist der Herzschlag der Revolution zum Stillstand gekommen? Volkssouveränität als Verfahren. Ein normativer Begriff der Öffentlichkeit?’, in Forum für Philosophie Bad Homburg (eds), Die Ideen von 1789 I der deutschen Rezeption, Frankfurt, Suhrkamp, p. 29 (translated by the author).  1



The political theory of direct democracy13

Assembly: In another study, from England,3 only 38 per cent were able to correctly identify their local MP. In the light of this – and in the light of voters’ increasing interest in ‘issue politics’, it is perhaps not surprising that more and more politicians, activists and theorists are championing direct democracy these days. It is important to note, however, that this interest in direct democracy is not a wholly new invention, but a rediscovery of an ancient idea which can be traced back to ancient Athens. The ancient history of direct democracy Pericles, the leading statesman of Athens in 400 BC, is reported by Thucydides to have said that: ‘instead of looking at discussion as a stumbling-­block in the way of action, we think it an indispensable preliminary to any wise action at all . . . in our enterprises we present a singular spectacle of daring and deliberation’.4 But he did not point out why this was so beneficial. Pericles was above all a practical politician and not a theoretician. But his view was far from unique. The playwright Euripides merely stated the common view when he – in the play Suppliant Women – has one of his characters observe: ‘This city is ruled by no one man. The demos reigns, taking turns annually . . . They do not give supremacy to the rich; the poor man has an equal share in it.’5 However, it is from the philosophers that we learn the most about Greek direct democracy. Plato was – to put it mildly – very critical of democracy in general and direct democracy in particular. Yet, while Plato – the aristocrat – was at best lukewarm in his disposition towards the ‘rule of the people’, he let Protagoras (Socrates’ eponymous opponent in the dialogue) tell this tale in defence of democracy. The section is worth quoting at length: Zeus was afraid that our whole race might be wiped out, so he sent Hermes to bring justice and a sense of shame to humans, so that there would be order within cities and bonds of friendship to unite them . . . Hermes asked Zeus how he should distribute shame and justice to humans, should I distribute them as the other arts were? This is how the others were distributed: one person practicing the art of medicine suffices for many ordinary people; and so forth with the other practitioners. Should I establish justice IPSOS-MORI, March 2011. Thucydides (1951) The Peloponnesian War, New York, The Modern Library, p. 105.  5 Euripides (1958) ‘Suppliant Women’, in D. Green and R. Lattimore (eds), Euripides IV, Chicago, University of Chicago Press, pp. 399, 419.  3  4

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and shame among humans in this way, or distribute it to all? “To all” said Zeus, “and let all have a share”. For cities would never come to be if only a few possessed these, as is the case with the other arts . . . And so it is . . . that when the Athenians (and others as well) are debating architectural excellence, or the virtue proper to any other professional speciality, they think that only a few individuals have the right to advise them, and they do not accept advice from anyone outside these . . . but when the debate involved political excellence, which must proceed entirely from justice and temperance, they accept advice from anyone, and with good reason, for they think that this particular civic or political virtue is shared by all, or there would not be any cities.6

These justifications for democracy may be neat and inspiring and even poetic, but they are not theoretically convincing. To find the more convincing argument for the inherent – or utilitarian – value of direct democracy, we need to turn to Aristotle. In his book Politics the Macedonian thinker noted: The view that the multitude, rather than a few good men, should be sovereign . . . would perhaps be true. For although each member of the multitude is not a good man, still it is possible that when they come together, they should be better – not as individuals but collectively, just as a feast to which many contribute is better than a dinner provided out of a single purse. For each individual has a share of excellence and practical wisdom, and when they meet together, just as they become in a manner one man, who has many feet, and hands, and senses, so too with regard to their character and thought. Hence the many are better judges than a single man of music and poetry, for some understand one part, and some another, and among them they understand the whole.7

It is this view – though it is often overlooked – that forms the main argument in favour of letting the many participate in the decision-­making of a country. The Romans did not make significant contributions to the political theory of direct democracy, though they practised it and approved of citizen involvement in public decision-­ making. Tacitus – one of the foremost Roman historians noted, ‘De minoribus rebus principles consultant, de maioribus omnes’ (‘On small matters the chiefs decide, but major issues are decided by the whole of the people’).8 Plato (1997) ‘Protogoras’, in John M. Cooper (ed.), Plato: The Complete Works, Indianapolis, Hackett Publishing Company, p. 757.  7 Aristotle (1905) The Politics of Aristotle (trans and ed. J.E.C. Weldon), London, Macmillan, p. 129.  8 Tacitus (2000) ‘Germania’, in M. Hutton and W. Peterson (eds), revised by R.M.  Ogilvie, E.H. Warmington and M. Winterbottom, Tacitus: Agricola, Germania, Dialogus, Cambridge, MA, Harvard University Press, p. 146.  6



The political theory of direct democracy15

Even in the age of the emperors, when the hitherto existing mechanisms of direct democracy were but a shadow of their former self, the Romans were (in principle) defenders of an intensive role of the people in public decision-­making. As the Roman Jurist Gaius famously noted in 161 AD, ‘Lex est quod populus iubet atque constituit’ (Institutiones, I,3) (‘the law is what the people directs and establishes’).9 The Romans were a pragmatic lot, and under the Roman Constitution the plebiscitum had been a practical means to pacifying the lower classes. The view of the Greeks was different. According to Aristotle’s analysis, public participation was a means of utilising ordinary people’s everyday knowledge and common sense to test the viability of policy proposals. By expanding the pool of voices, there is greater likelihood that shortcomings and flaws will be identified. This is – theoretically speaking – the utilitarian case for democracy as a system of decision-­ making; by engaging the public in deliberations and discussions we transcend the boundaries of our ignorance by profiting from knowledge we do not possess individually. It is for this reason that democracy is not only a normative ideal but also a utilitarian principle, which makes it more likely that the outcomes of policies are optimised. The utilitarian argument for direct democracy, from Marsilius to Friderich Hayek The doctrine that direct democracy has a utilitarian value was first developed into a coherent doctrine in the late Middle Ages and the early Renaissance by Marsilius of Padua (c1275–c1343), a philosopher and advisor to the German emperor. Marsilius defended public engagement on the grounds that the ordinary people, though they did not have knowledge to make laws, were in possession of common-­sense knowledge, which would enable them to solve problems which could hinder the successful implementation of proposed laws. Having described the policy-­making process in his book Defender of the Peace, Marsilius went on to advocate the involvement of the people as a deliberative filter. For the sake of understanding the logic it is useful to cite this passage at length:

Gaius (2005) ‘Lex et Plibiscitum’, in J.T. Abdy and Bryan Walker (eds), The  Commentaries of Gaius and Rules of Ulpian, Clark NJ, The Law Book Exchange, p. 2.

 9

16

Direct democracy

When once rules of this kind, the future laws, have been discovered and diligently scrutinised, they should be laid before the assembled citizen-­ body for approval or rejection, so that if any citizen thinks that anything needs to be added to them or taken away, changed or totally repudiated, he can say so . . . For as we have already said, the less learned citizen can sometimes perceive something that should be corrected with regard to a proposed law even though they would not have known how to discover it in the first place.10

This might have been written in 1324, but it is still the best summary of – and defence for – the rationale behind public engagement. ‘For,’ as Marsilius also noted, ‘although not every citizen, nor the greater multitude, may discover the laws, every citizen is nonetheless capable of a judgement on those which have been discovered and put to him by another, and of perceiving if something should be added or removed or changed.’11 In this way we advance our knowledge and improve our evidence base because we, through deliberative processes, leave room for a continuous revision of our present scientific conceptions. This line of reasoning was – at a more philosophical level – outlined by Friedrich Hayek in Constitution of Liberty, It might be said that civilisation begins when the individual in pursuit of his ends can make use of more knowledge than he has himself acquired and when he can transcend the boundaries of his ignorance by profiting from knowledge he does not himself possess.12

For, it is ‘because every individual knows so little and, in particular, because we rarely know which of us knows the best, that we must trust the independent and competitive efforts of many to induce the emergence of what we shall want when we see it’.13 Marsilius of Padua (2005), The Defender of the Peace, Cambridge, Cambridge University Press, p. 80. 11 Marsilius, The Defender of the Peace, p. 75. For other, more recent, philosophers’ contributions see e.g. Peter Levine, Archon Fung and John Gastil (2005) ‘Future Directions for Public Deliberation’, in John Gastil and Peter Levine (eds), The Deliberative Democracy Handbook: Strategies for Effective Civic Engagement in the 21st Century, New York, Jossey-­Bass, p. 280. This book cites in particular John Rawls and Jürgen Habermas. 12 F.A. Hayek (1960) The Constitution of Liberty, London, Routledge, p. 22. 13 Hayek, The Constitution of Liberty, p. 29. Hayek’s view was, as he acknowledged, based on the philosophy of Adam Fergusson (a thinker of the Scottish Enlightenment) who argued that societies and the growth of institutions are the ‘result of human action, but not the execution of any human design’, and that ‘the forces of society are derived from an obscure and distant origin. They arise 10



The political theory of direct democracy17

Now Hayek mainly had the economic market in mind. But the reasoning is equally valid in the marketplace of ideas. By allowing the free competition of ideas, the ‘invisible hand’ will – in theory – ensure that ideas without merit will perish. Democracy, especially direct democracy, is not, therefore, a system  which is merely to be defended on the grounds of an idealistic  concern, i.e. the maxim of government by the people, but it is also a system which yields the best and most workable policies as it subjects even the best tested scientific ideals to a free dialogue among equals.14 This view was also one that shaped the political views of Nicoló Machiavelli. The Florentine statesman who is best known for his infamous treatise The Prince, was in reality a defender of direct democracy. In his more sober and much longer work The Dicourses, Machiavelli was unequivocal in his support for direct involvement by the people and stressed that ‘It is necessary that republics have laws that enable the mass of the population to give vent to the hostility it feels.’ For when no such mechanism exists ‘extra legal methods will be employed and without doubt these will have much worse consequences than legal ones’. The kinds of mechanisms Machiavelli had in mind were p ­ lebiscites and ­referendums.15 John P. MacCormick has summed up Machiavelli’s theory in a way that makes it very close to the ideal espoused by those who believe that referendums will strengthen representative democracy through increasing accountability. MacCormick writes, The populace selects the elites who will hold office but also constantly patrols them through extra electoral institutions and practices, such as the tribunes of the people, public accusations, and popular appeals. Machiavelli adds to these institutional features of popular government an important cultural dimension: The people should despise and mistrust elites, and they should actively confront the injustice that elite governing inevitably entails.16

before the date of philosophy, from the instincts, not the speculations of men’: Adam Fergusson (1767) An Essay on the History of Civil Society, Cambridge, Cambridge University Press, p. 64. 14 Jürgen Habermas (1981) Theorie des kommunikativen Handelns, Frankfurt am Main Suhrkamp Verlag. 15 Nicoló Machiavelli (1994) Selected Political Writings, Indianapolis, Hackett, p. 102. 16 J.P. MacCormick (2001) ‘Machiavellian Democracy: Controlling Elites with Ferocious Populism’, American Political Science Review, Vol. 95, No. 2, 297.

18

Direct democracy

Box 2: Condorcet’s Jury Theorem: a mathematical proof of the benefits of direct democracy? That democracy yields more benevolent results than non-­democratic systems has even been argued mathematically by Marquis de Condorcet (1785). Marquis de Condorcet was a prominent figure around the time of the French Revolution, and was the main author of the Montagnards Constitution that included prominent provisions for citizen initiated referendums. He was also a progressive who advocated female suffrage in his treatise De l’admission des femmes au droit de cité (1790). It was not surprising that Condorcet had advocated direct democracy as a practical politician. The question Condorcet focused on was the following: assuming that each individual has a given probability of being right, what is the probability that the majority of a group consisting of such individuals is right? Assume for a moment that each individual has an identical probability p of being right. This probability could be interpreted as the relative frequency of correct ‘yes’ or ‘no’ answers to a long sequence of questions of which the correctness of the answers can be determined afterwards. Let us focus on such a question that calls for either a ‘yes’ or a ‘no’ answer and assume that the number of persons who have given the right answer is x. Under the additional assumption that the persons vote independently of each other, we get, by applying the binomial probability formula, the probability that among n individuals exactly x have given the right answer:

f(x) = px(1 – p)n–x

where p denotes the probability that the group using the simple majority rule gives the right answer. In other words, p is the probability that more than 50 per cent of the group members will vote ‘yes’ (or ‘no’) when ‘yes’ (‘no’) is the right answer. Whether that is convincing to those without mathematical prowess remains an open question, but it is, at the very least, interesting that theoreticians and mathematicians reach the same conclusions as philosophers and jurists. Source: Hannu Nurmi, Hannu (1997) ‘Referendum Design: An Exercise in Applied Social Choice Theory’, Scandinavian Political Studies, Vol. 20, No.1, 33–52.

As this author has argued elsewhere,17 this view was also taken by Jean-­ Jacques Rousseau. Rather than being a defender of citizen involvement all the time, Rousseau too favoured a system under which the citizens M. Qvortrup (2003) The Political Philosophy of Jean-­Jacques Rousseau: The Impossibility of Reason, Manchester, Manchester University Press.

17



The political theory of direct democracy19

basically controlled the elites. As Rousseau put it, in an often overlooked passage from The Origin of Inequality: I would not have approved of plebiscites like those of the Romans . . . On the contrary, I would have desired that, in order to stop self-­interested and badly conceived projects and the dangerous innovations which finally ruined the Athenians, no single man had the power to propose new laws according to his fantasy, that this right belonged only to the magistrates, that even they made use of it with such circumspection and the people, for their part, were so reluctant about giving their consent to these laws, that the promulgation of such laws could be carried out only with much solemnity, so that before the constitution was undermined they would have had the time to be convinced.18

Rousseau, the supposed defender of unfettered direct democracy was, in fact, like Marsilius and Aristotle, a man who merely believed that the people should have a say lest ill-­considered laws were enacted. As already noted, part of the rationale for this shift is based on a normative ideal of increasing participation and public involvement in government.19 But the growth in the number of consultations, and the defence of public engagement in general, is also based on pragmatic considerations regarding good governance. As the Cabinet Office in the United Kingdom stated on its web-­site: ‘[Public engagement] is not simply about more open-­government, although that too is important, it is about making policies more effective by listening to and taking on-­ board the views of the public and interested groups’.20 But, as is often the case, ideas can be abused. Direct democracy is no exception. Before we go on to the empirical analysis, it is useful – imperative even – that we look at the darker side of involvement by the people. Excursus. Plebiscites: the referendum as a mechanism of authoritarian government and the theory of Carl Schmitt While referendums have been an important feature in modern democratic political systems political theorists have devoted very little time to studying the use of plebiscites in authoritarian regimes. Referendums Jean-­ Jacques Rousseau (1955) ‘Discours sur l’origine et les fondements de l’inégalité parmi les hommes’, in Jean-­ Jacques Rousseau, Oeuvres III, Paris, Galimard, p. 321. 19 John S. Dryzek (2005) The Politics of the Earth: Environmental Discourses, Oxford, Oxford University Press. 20 See: www.cabinetoffice.gov.uk/regulation/consultation/government/ (accessed 9 August 2006). 18

20

Direct democracy

have predominately been seen as a check on elected governments.21 However, the referendum (or plebiscite as we shall call it) has been used (and abused) by autocratic and even totalitarian regimes. Indeed, Napoleon Bonaparte, Napoleon III, Mussolini, Hitler and Saddam Hussein all held referendums with a view to gaining legitimacy for their policies. This has not gone unnoticed among opponents of referendums, of course. Clement Atlee remarked that he ‘could not consent to the introduction into our national life of a device so alien to all our traditions as the referendum and plebiscites which has only too often been the instrument of Nazism and Fascism. Hitler’s practices in the field of referenda and plebiscites can hardly have endeared these expedients to the British heart.’22 And more recently Chris Pattern observed – or opined: I think referendums are awful. The late and great Julian Critchley used to say that, not very surprisingly, they were the favourite form of plebiscitary democracy of Mussolini and Hitler. They undermine Westminster. What they ensure, as we saw in the last election, is if you have a referendum on an issue politicians during an election campaign say oh we’re not going to talk about that, we don’t need to talk about that, that’s all for the referendum. So during the last election campaign the euro was hardly debated. I think referendums are fundamentally anti-­democratic in our system and I wouldn’t have anything to do with them. On the whole, governments only concede them when governments are weak.23

Supporters of direct democracy do not like to hear this, but there is – paradoxically – some support for the view that referendums were associated with dictatorships. The controversial German legal theorist and National Socialist Carl Schmitt is the most prominent example of a proponent of authoritarianism who also supported referendums. In Volksentscheid und Volksbegehren. Ein Beitrag zur Auslegung der Weimarer Verfassung und zur Lehre von der unmittelbaren Demokratie (Referendum and Initiative: A Contribution to the Interpretation of the Weimar Constitution and Its Theory of Direct Democracy24) from 1926, he developed a model of plebiscitary referendums. According to M. Setälä (1999) Referendums and Democratic Government, London, Palgrave. 22 Clement Attlee quoted in Roger Jowell and Gerald Hoinville (1976) Britain into Europe, London, Taylor and Francis, p. 111. 23 BBC, Breakfast with Frost, interview with Chris Patten, 1 June 2003. 24 Carl Schmitt (1926) Volksentscheid und Volksbegehren. Ein Beitrag zur Auslegung der Weimarer Verfassung und zur Lehre von der unmittelbaren Demokratie, Berlin, Walter de Gruyter & Co. 21



The political theory of direct democracy21

Schmitt, the referendum was a mechanism for creating legitimacy for an autocratic leader, not a mechanism for ensuring government by the people. Yet this aspect of the referendum as a legitimising device has hitherto received scarce attention, although very prominent thinkers have toyed  with the idea. Indeed, no less a figure than Max Weber – a democratic thinker – advocated, in his writings about the Weimar Constitution, a strong presidency with powers to appeal directly to the people through referendums.25 The Weimar Verfassung did grant the President strong executive powers and made provision for plebiscites initiated by the head of state in the event of a deadlock in the Reichstag. These provisions are contained in Art. 73 of the Constitution. However, the provision that allowed the Reichpräsident to submit proposals to the voters was never employed during the brief life of the Weimar Republic. Schmitt was not always a supporter of referendums. Indeed, he expressed misgivings about the tyranny of a small majority and stressed with disapproval that ‘whoever controls 51 per cent would be able legally to render the remaining 49 per cent illegal’.26 But – as a result of his autocratic leanings – he gradually came round to the idea that referendums could benefit the dictatorship. And Schmitt was not your average apologist for dictatorship. We often fail to understand that autocratic regimes – at least initially – seek and win a popular mandate. The view that autocracies are anachronistic regimes which believe in some version of rex dei gratia or divine rule is misplaced. No serious scholar after the French Revolution has had the audacity to write a treatise like King James’s The Trew Law of Free Monarchs. While a critic of mass democracy, representative institutions and pluralism, Schmitt held it as an axiomatic fact that the people were the ultimate sovereign. As he wrote, ‘none has an interest in denying a democratic identity. On the contrary all are more interested in knowing how to confirm it.’27 For unlike earlier epochs, no one ‘would remain on the throne against the will of the people’.28 Max Weber (1988) ‘Deutschlands künftige Staatsform’, in Johannes Winckelman (ed.), Max Weber: Gesammelte Politische Schriften, Tübingen, Mohr, p. 468. See also Reinhard Schiffers (1971) Elemente direkter Demokratie im Weimarer Regierungssystem, Düsseldorf, Droste Verlag. 26 Carl Schmitt (1968) [1932] Legalität und Legitimität, 2nd edn, Berlin, Duncker and Humblot. 27 Carl Schmitt (1988) The Crisis of Parliamentary Democracy, Cambridge, MA, MIT Press, p. 29. 28 Schmitt, The Crisis of Parliamentary Democracy, p. 29. 25

22

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Box 3: Direct democracy Libyan style The Green Book -­ al-­Kit¯ab al-­Ahd·ar in Arabic – a treatise by the late Muammar ˘ Gaddafi, is another example of an authoritarian use of the lure of direct democracy. Despite scoring a dismal six on the Freedom House Score of Political Freedoms (the same as Burma and North Korea), the Libyan regime was officially based on the doctrine of direct democracy by its erstwhile leader. Yet the regime did not believe in referendums and plebiscites. As Gaddafi wrote, ‘Plebiscites are a fraud against democracy. Those who vote “yes” or “no” do not, in fact, express their free will but, rather, are silenced by the modern conception of democracy as they are not allowed to say more than “yes” or “no”. Such a system is oppressive and tyrannical. Those who vote “no” should express their reasons and why they did not say “yes”, and those who say “yes” should verify such agreement and why they did not vote “no”. Both should state their wishes and be able to justify their “yes” or “no” vote.’ Instead of referendums and representative institutions, Gaddafi proposed a system of People’s Committees, which according to the Green Book would be established in a way that was reminiscent of the system of democratic centralism espoused by Lenin: ‘First, the people are divided into Basic Popular Conferences. Each Basic Popular Conference chooses its secretariat. The secretariats of all Popular Conferences together form Non-­Basic Popular Conferences. Subsequently, the masses of the Basic Popular Conferences select administrative People’s Committees to replace government administration.’ That this system did not outlive the Gaddafi regime is perhaps not surprising! Source: www.mathaba.net/gci/theory/gb.htm (accessed 25 August 2011).

The problem was how to achieve this in practice. What Schmitt was striving for was a democratic mechanism, which would ensure that the decisions made in a modern state were supported by the people. In other words, he looked for a way of translating the will of the people into concrete policies. But how? The traditional answer to this problem had – from John Locke through Edmund Burke and until John Stuart Mill – been the system known as representative government, which represented the people.29 But Schmitt felt, and argued convincingly, that this system was inadequate and even logically inconsistent with the ideal of democracy.30 Schmitt’s fundamental problem with the liberal doctrine of Mill, ‘Considerations on Representative Government’, p. 227. This model has been critiqued by Richard Bellamy (2000) Rethinking Liberalism,

29 30



The political theory of direct democracy23

r­ epresentative democracy was that sovereignty was divided. For Schmitt democracy was that the ruler and the subject were identical. This conception was directly taken from the political theory of Rousseau. In Du Contrat Social, Rousseau had famously stressed ‘que la souveraineté est indivisible’.31 But this identification of ruler and subject was not compatible with a pluralist state with many competing parties. In order to function, a pluralist state requires the parties to make compromises and to cut deals. The sum total becomes, not the volonté général, nor even the will of the people (volonté du tous) but an amalgamation of ‘particular wills’, in Rousseau’s sense of an amalgam of, what we might call volonté particulière. For ‘a pluralist state composed of parties becomes “total” not out of strength but weakness; it intervenes in all spheres of life because it must fulfil the demands of all interested parties’.32 But even if it were to be granted that the people could be represented, there was nothing, in Schmitt’s view, that justified that the representative should be a body of men. . . . if for practical and technical reasons the representatives of the people can decide instead of the people themselves, then certainly a single trusted representative could also decide in the name of the same people. Without ceasing to be democratic, the argument would justify an antiparliamentary Caesarism.33

Schmitt was of the opinion that only a strong single executive would have the strength to carry through the necessary policies, but such a leader needed the support of the people. This is where the referendum came in as a deus ex macina. ‘Democracy,’ he wrote, ‘requires, therefore, first homogeneity and second – if need arises – the elimination or eradication of heterogeneity.’34 The only mechanism, which would overcome the contradictions of parliamentarism, while at the same time remaining compatible with in the chapter ‘Carl Schmitt and the Contradictions of Liberal Democracy’, London, Pinter, pp. 67–90. This paper was a later version of Richard Bellamy and Peter Baehr (1993) ‘Carl Schmitt and the contradictions of Liberal Democracy’, European Journal of Political Research, Vol. 23, No. 2, 163–85. 31 Jean-­Jacques Rousseau (1964) ‘Du Contrat Social’, in Bernard Gagnebin and Mercel Raymond (eds) Oeuvres complètes, Vol. III, Paris, Gallimard, p. 369. 32 Schmitt, Legalität und Legitimität, p. 340. This was indeed the argument which he had pursued in his early book Die Diktatur, which despite the title opened the possibility that the dictator could be democratically elected. See Carl Schmitt (1994) Die Diktatur: Von den Anfängen des modernen Souveränitätsgedankens bis zum proletarischen Klassenkampf, Berlin, Duncker und Humblot. 33 Schmitt, The Crisis of Parliamentary Democracy, p. 34. 34 Schmitt, The Crisis of Parliamentary Democracy, p. 9.

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Direct democracy

the doctrine of popular sovereignty, was a system of plebiscitary hyper-­ presidentialism, under which the decisions of the ‘dictator’ were endorsed in referendums. That is, the referendum became a mechanism – not of allowing the people a veto, but one which gave them the opportunity to show unity by endorsing a policy proposed by the leader. As he wrote, ‘the acclamation is a perenial phenomenon in any political society. No state without a people, and no people without acclamation.’35 By allowing the people to make the final decision on proposals by the government, it was possible to combine the efficiency of the ‘dictator’ with the legitimacy of the plebiscite, while at the same time avoiding the contradictions of the parliamentary system. In other words, such a system would ensure that ‘the law and the will of the people are identical’.36 It was because of this extraordinary character of the referendum that the parliamentary system comes a poor second in terms of legitimacy. The system of plebiscitary legitimacy is distinct from the system of parliamentary government because, the ‘referendum is always a higher form of decision’.37 For in a modern state ‘plebiscitary legitimacy is the single type of state justification that may be generally acknowledged today as valid’.38 For, as Schmitt was keen to point out, politics would be unthinkable without a strong government, ‘all plebiscitary methods presuppose a government that not only attends to business but also has the authority to properly undertake the plebiscitary questioning at the right moment’.39 This fact did not, of course, mean that the people would govern or, indeed, could govern, directly. Schmitt was, in fact adamant, that direct democracy was an almost logical impossibility. This would appear to be a radical theory, along Rousseauian lines. It was not. In fact, it was anything but. Schmitt unequivocally stressed that the referendum should be used by a single individual, whose views could be sanctioned by the people: he made short shrift of theories of public participation, and stressed that the people could only confirm or otherwise the proposal by the leader: They [the people] cannot advise, deliberate or discuss. They cannot govern or administer. They furthermore cannot set norms, but can only sanction norms by consenting to a draft of norms laid before them. Above all they

Schmitt, Volksentscheid und Volksbegehren, p. 34. Schmitt, The Crisis of Parliamentary Democracy, p. 71. 37 Schmitt, Legalität und Legitimität, p. 93. 38 Schmitt, Legalität und Legitimität, p. 64. 39 Schmitt, Legalität und Legitimität, pp. 93–4. 35 36



The political theory of direct democracy25 cannot pose a question, but can only answer with a yes and no to a question put before them.40

In developing this theory Schmitt provided a theoretical justification for the authoritarian use of plebiscites – a justification which has often been used by dictators who have wished to legitimise their rule through referendums. That this use of the referendum is highly problematic goes without saying. Schmitt would not have had a problem with that. For Schmitt, this was exactly the attraction of the referendum: it was not meant to enable the voters to choose individually. Rather, the aim of the device was to positively sanction a decision made by a Führer. Schmitt – who famously defined politics as the ‘sphere where you distinguish between friend and enemy’41 – wanted to make governing apolitical, in his own sense of the word, as well as seeking to escape what he considered to be the contradictions of parliamentary government. Referendums proposed by an autocratic leader would not be dictatorial in the non-­democratic sense of the word but would ensure that the ultimate decision rested with the people. Thus by submitting controversial and drastic measures to the people (such in the case of Hitler’s referendum on martial law in 1934), the plebiscitary mechanism ensured that the people were ‘the sovereign, that decided over martial law’.42

Schmitt, Legalität und Legitimität, p. 93. Carl Schmitt (1979) Der Begriff des Politischen: Text von 1932 mit eimen Vorwort und drei Corollarien, Berlin, Duncker und Humblot, p. 32. 42 Carl Schmitt (1993) Politische Theologie, Berlin, Duncker und Humblot, p. 13. 40 41

2

Citizen initiated referendums: an empirical assessment

While referendums are widespread in Western democracies, the citizens’ initiative is relatively rare. All but two of the countries in Europe (Belgium and Bosnia) have provisions for referendums in their constitutions, while the initiative is in use in just six European countries. Britain is the odd one out here as it does not have a written constitution, and therefore no constitutional provision for referendums, though it has been suggested that ‘referendums [have become] the established vehicles for constitutional change’.1 After the Second World War, no countries in the Western World – with the exception of Switzerland – had the initiative. In Switzerland, voters are only allowed to initiate constitutional changes if they can provide the signatures of at least 100,000 citizens.2 This changed after the fall of the Berlin Wall. Provisions for the initiatives were introduced in the Ukraine, Hungary, Latvia, Slovakia and Lithuania. Voters in Hungary, Lithuania and Slovakia, as well as in Italy and Slovenia, also have the right to demand a referendum on a decision made by the government. Further in New Zealand and several German Länder, voters were given the right to initiate legislation, a right that had been enjoyed (and, some would say, occasionally abused) in roughly half of the US states. In addition to these rights voters were given the right to propose legislation, which would then be debated in Parliament (see next chapter). While initiatives in some of the Eastern and Central European countries have rarely succeeded due to harsh turnout requirements (see  Chapter 4), there are some examples of high-­ profile legislation T. Wright (2003) British Politics. A Very Short Introduction, Oxford, Oxford University Press, p. 30.  2 See A. Treschel and H. Kriesi (1996) ‘The Referendum as the Centre-­Piece of Democracy’, in M. Gallagher and P.V. Uleri (eds), The Referendum Experience in Europe, Basingstoke, Macmillan, p. 185.  1



Citizen initiated referendums27

Table 2.1:  Provisions for initiatives in Western democracies Country

Threshold

Type of initiative

Hungary Latvia Lithuania New Zealand Switzerland Slovakia Ukraine

200,000 10% of Electorate 300,000 of Electorate 10% of voters 100,000 350,000 3,000,000

Legislative Constitutional & Legislative Constitutional Legislative Constitutional & Legislative Constitutional & Legislative Legislative

No. of initiatives   3   2   6   4 145   4   1

Source: www.c2d.ch/ (accessed 4 November 2012)

enacted as a result of a citizen-­initiated process. For example, in 1996 citizens in Lithuania had the opportunity to vote on an initiative which stipulated that ‘at least half of the [national] budget [must be allocated] to citizens’ social needs’ (76 per cent supported the proposal). In the Ukraine – a country that has been marred by semi-­ authoritarianism – the initiative has been a pawn in a power struggle between Parliament and the President. Before his re-­election on 14 November 1999 President Kuchma and his supporters instigated a popular initiative under Article 72 (2) of the Constitution,  with a view to strengthening his own powers at the expense of those of Parliament. According to the proposal, the President would be given the right to suspend the Verkhovna Rada (Parliament). The Central Election Commission accepted the validity of the initiative on 15 January 2000 as they ruled that more than three million signatures had been collected, including at least 100,000 in more than two-­thirds of provinces. The same day President Kuchma set the referendum for 16 April. The Verkhovna Rada, not surprisingly, was less than impressed and declared the poll unconstitutional. The Constitutional Court sided with the President, and on 29 March, the Court decided the referendum was constitutional and must be held. The referendum was overwhelmingly won by the President – though marred by allegations of fraud.3 But it is in American that we have seen the most widespread use of the initiative, and it is, consequently, in this country that we find the best and the worst examples of its use.

Kimitaka Matsuzato (2005) ‘Semi-­ Presidentialism in Ukraine: Institutionalist Centrism in Rampant Clan Politics’, Demokratizatsiya: The Journal of Post-­ Soviet Democratization Vol. 13, No. 1, 45–58.

 3

28

Direct democracy

The initiative in the United States Twenty-­four out of the 50 states have provisions for initiatives, though the provisions have been used with varying frequency (ostensibly due to different qualification requirements). While initiatives have been used sparingly in other parts of the world, they have become an integral part of US political life, especially in the states on the Pacific coast such as Oregon, Washington and California. In these, major issues such as immigration, taxation and more recently environmental issues have been put to the ballot.4 This has generated considerable discussion about the pros and cons of this form of direct democracy. Much has been written about the use of various types of referendums in the US and Switzerland.5 The system of direct democracy was based upon the ideas of the so-­called American Populists – a rural movement that flourished in the US from 1880 until 1910. Committed to radical reform and opposed to ‘big business’, the Populists advocated state ownership of the railways, anti-­trust laws and a number of other radical measures. However, it was their commitment to institutional reform in the form of direct election of senators, primaries, and the introduction of the initiative and the referendum that cemented their legacy in US political history. While the Populists had initially contested elections as a third party, many of their policies were eventually adopted by the two major parties. Prominent Republicans and Democrats like Theodore Roosevelt and Woodrow Wilson – later US Presidents – both supported the introduction of the initiative.6 But while the initiative was gradually – and sometimes grudgingly – adopted by the major parties, it is worth stressing that it was ‘ordinary’ men who secured the introduction of the device. One such was North Dakota farmer Lars A. Ueland, a lifelong Republican who abandoned party politics to campaign for the introduction of the initiative. As he is reported to have said: When I first became familiar with the principles of the initiative and the referendum, I was impressed with a sense of their value. The more I study John M. Allswang (2000) The Initiative and Referendum in California, 1898– 1998, Palo Alto, Stanford University Press, p. 140.  5 See, for example, S. Bowler and T. Donovan (1998) Demanding Choices. Opinion, Voting and Direct Democracy, Ann Arbor, University of Michigan Press; J.F. Zimmerman (1999) The Initiative: Citizen Law-­Making, Westport, CT and London, Praeger; and T. Cronin (1989) Direct Democracy: The Politics of Initiative, Referendum and Recall, Cambridge, MA, Harvard University Press.  6 Cronin, Direct Democracy, p. 38.  4



Citizen initiated referendums29

Table 2.2:  State adoption of the initiative in the US Year

State

1898 1900 1902 1906 1907 1908 1910 1911 1912 1913 1914 1918 1922 1956 1968 1970 1992

South Dakota Utah Oregon Montana Oklahoma Maine, Missouri Arkansas, Colorado Arizona, California Idaho, Nebraska, Nevada, Ohio, Washington Michigan North Dakota, Mississippi Massachusetts (Indirect initiative) Mississippi process overturned by the state’s Supreme Court Alaska Florida (Constitutional initiative only), Wyoming (Indirect initiative) Illinois (Constitutional initiative only) Mississippi (reinstated)

Source: Initiative & Referendum Institute, University of Southern California (www. iandrinstitute.org)

these principles, the more I am convinced that they will furnish us the missing link – the means needed – to make popular self-­government do its best. Programmes and reforms will then come as fast as these changes are safe – only when a majority of the people are behind them. I would rather have a complete initiative and referendum adopted in state and nation than the most ideal political party that could be made.7

Once elected to the North Dakota legislature (as an independent), Ueland was responsible for the introduction of the initiative. North Dakota was not, however, the first state to grant the people the right to initiate legislation. Between 1898 and 1918 a total of twenty states adopted the initiative. Not everybody, however, was enthusiastic about this new institutional device. Some opponents challenged the use of initiatives in the courts, arguing that these provisions were unconstitutional. The main argument was that the initiative – being based on direct legislation – violated Article IV, Section 4 of the US Constitution that states provide a ‘republican form of government’. However, the Supreme Court declared in 1912 that direct democracy did not violate the Federal Constitution.8 This ruling did not convince diehard opponents. Following the d ­ ecision, the Los Angeles Times was vocal in its opposition to the initiative, which – in its Cited in Cronin, Direct Democracy, p. 46 and p. 50. Pacific States Telephone and Telegraph Company v. Oregon, 233 U.S. 118 (1912).

 7  8

30

Direct democracy

view – would substitute ‘ignorance and caprice and irresponsibility’ for the ‘learning and judgement of the legislature’.9 Others, predictably, took a more positive view. Another newspaper, the Arizona Star, believed that the introduction of the initiative would lead to ‘the elimination of superstition, bigotry, intolerance and ignorance from American politics . . . an end to boss rule and . . . grafting from the public crib; and an end to fraud, pomposities and political fakes’.10 While this level of enthusiasm was unusual, the initiative was viewed favourably among constitutional reformers. Indeed, the initiative was exported from the US and included in the German Weimar Constitution in the wake of the First World War. According to the Weimar Constitution, one tenth of the voters could demand that a vote was held. However, only two polls were held: in 1926 on confiscation of royal property and in 1929 on the repudiation of war guilt (reparations). While both passed with overwhelming majorities, they were declared invalid due to low turnout. This was to be a common fate for many initiatives in Europe when the mechanism was introduced in the 1990s. The same has not been the case in the United States. At the time of writing a total of 2,231 initiatives have been voted on in the US since 1904. However, their use has varied widely. In the words of David Magleby, one of the foremost observers of initiatives in the US: ‘Between 1910 and 1919, a record-­setting 269 measures went to a vote, and 98 were approved. Use of direct legislation declined in the 1920s, rose again in the 1930s, fell precipitously in the 1940s and 1950s, and bottomed out in the 1960s. In the 1950s and 1960s, an average of fewer that eight initiatives passed per electoral cycle, down from an average of nearly twenty-­eight per election cycle in the 1920s. But these patterns reversed themselves in the 1970s.’11 Since then the annual number of initiatives has stayed at the same (high) level. The revival of the initiative was in large measure due to the impact of Proposition 13 in California in 1978, which sought to limit property taxes. This triggered a huge growth in the number of initiatives in all areas of government. In the 1990s, a total of 379 initiatives appeared on the ballots, with 167 being passed. At the end of the first decade of the twenty-­first century, a total of 301 initiatives have appeared on the ballot so far, with Quoted in V. O. Key and W. C. Crouch (1939) The Initiative and Referendum in California, Berkeley, UC Press, p. 437. 10 Arizona Star, 10 September 1910. 11 D. Magleby (1994) ‘The United States’, in D. Butler and A. Ranney (eds), Referendums Around the World: The Growing Use of Direct Democracy, Basingstoke, Macmillan.  9



Citizen initiated referendums31

127 being passed. Since their introduction, most initiatives have been held in Oregon (341), with California a close second at 315. Other frequent users include Colorado (196), North Dakota (175) and Arizona (165).12 But the number of initiatives says nothing about the way in which this mechanism has been used. Has it led to an improved or decreased quality of decision-­making and what are the kinds of policies approved or defeated? Quality of legislation in a direct democracy A.V. Dicey, perhaps the first constitutional theorist to champion the introduction of the referendum in Britain, saw the referendum as a constitutional safeguard, which could be employed to prevent the introduction of Home Rule for Ireland. But Dicey, for all his enthusiasm for the referendum, was adamant in his opposition to the initiative. The initiative was, he wrote, ‘neither in theory nor in fact . . . a necessary consequence of the maintenance of the referendum’.13 In this he was supported by J. St. Loe Strachey who also rejected the idea of direct legislation by the people on the grounds that it would lead to ill-­considered legislation (we shall return to this in the next chapter). This was a reasonable criticism, at least in theory. It is one of the advantages of representative democracy that parliamentarians deliberate. As Edmund Burke declared a couple of centuries ago: Parliament is not a congress of ambassadors for different hostile interests . . . but . . . a deliberative assembly . . . with one interest, that of the whole; where not local purposes, not local prejudices ought to guide, but the general good, resulting from the general reason of the whole.14

John Stuart Mill agreed that parliaments offered the best way to govern a country (as we saw above).15 The key problem with such objections is, however, that they are based on an optimistic perspective of representative democracy. An ­ idealistic  –  and perhaps unrealistic – assessment of the virtues of ­ representative government should not be the main criterion in ­considering whether initiatives would benefit a nation. Mill, Burke and other illustrious figures who have discussed and defended representative Initiative Use 1902–2006 and Ballotwatch, both at www.inadrinstitute.org (accessed 12 November 2012). 13 A.V. Dicey (1982) An Introduction to the Study of the Law of the Constitution, Indianapolis, Liberty Fund, p. 50. 14 E. Burke (1854) ‘Speech to the Electors in Bristol, 1774’, in The Works of the Right Honourable Edmund Burke, London, Henry G. Bohn, p. 448. 15 Mill, ‘Considerations on Representative Government’. 12

32

Direct democracy

g­ overnment were writing in different times and were obviously unable to appreciate the modern pressures faced by parliaments today. Writing about the American experience, Shaun Bowler and Todd Donovan have noted: ‘Notwithstanding the early claims made on behalf of the wisdom of legislators, recent studies of legislative behaviour suggest that legislators cannot be fully informed when they cast their ballots. They are expected to vote on bills they may not have read.’16 Matters are, if anything, worse under the British system of government, under which MPs are tightly controlled by the executive. Walter Bagehot noted in The English Constitution that the UK Parliament had a rather modest role: ‘The main function of the House of Commons is one which we know quite well, though common constitutional speech does not recognise it. The House of Commons is an electoral chamber; it is the assembly which chooses our president.’17 This is still the case. The late Nevil Johnson was clear that the influence of Parliament has declined: Parliament’s influence over the terms of legislation is marginal and over public expenditure negligible . . . the functions of scrutiny are performed patchily and members of the executive can often evade accountability for their actions. Thus Parliament appears to be constantly falling behind in a race it cannot win.18

The more considerate MPs in Parliament today have also reached much the same conclusion. The British Conservative MP Andrew Tyrie is one: The executive is already almost supreme in Parliament, both Commons and Lords. The executive can control the Commons when its party has a clear overall majority; in a democratic age the lack of legitimacy of an appointed Lords leaves it almost always incapable of mounting a challenge. That leaves only two major constraints on the executive at present: intra-­Party democracy and public opinion.19

From the Labour benches, former MP Tony Wright has explained that ‘in Britain the executive is particularly strong and parliament commensurably weak’.20 Bowler and Donovan, Demanding Choices, p. 168. W. Bagehot (1867) The English Constitution, Oxford, Oxford University Press, p. 99. 18 N. Johnson (2000) ‘Parliament Pensioned Off?’, in K. Sutherland (ed.), The Rape of the Constitution?, Thorverton, Imprint Academic, p. 145. 19 A. Tyrie MP (2000) Mr Blair’s Poodle: An Agenda for Reviving the House of Commons, London, Centre for Policy Studies, p. 62. 20 T. Wright (2004) Prospects for Parliamentary Reform’, Parliamentary Affairs, Vol. 57, No. 4, 867–76. 16 17



Citizen initiated referendums33

In addition, while there are examples of seemingly ill-­ considered behaviour by voters in initiatives, the wisdom of legislators even under the American system can be questioned. There, law-­makers are allowed to deliberate without the ever-­watchful eye of the government whips. It is conveniently forgotten that ‘the record of representative government is an imperfect one’.21 To further quote American historian Henry Steele Commager’s assessment of US representative government: ‘New York purged itself  of socialists .  .  . the Oregon legislature outlawed private schools and the Nebraska legislature forbade teaching in German . . . the list could be extended indefinitely’.22 In short, the parliamentarians are not always sagacious and prudent legislators who carefully deliberate and reach decisions for the common good. They too can get it wrong. In Britain too, there are numerous examples of legislation – from the Dangerous Dogs Act to the Poll Tax – that have been forced through by government whips after insufficient thought, often with disastrous consequences. Critics of direct democracy also often fail to consider how direct democracy might work in practice. J.S. Mill’s objection to direct democracy, that it allows the voters to pass legislation without the scrutiny of expert committees, is an important one. But, it must equally be accepted that the scrutiny by legislatures can be less than perfect. ‘Log rolling’ (or vote trading) and ‘rent seeking’ (the provision for a private good for a special group at the expense of the common good) are not unknown in both local and national assemblies across the world. It can indeed be a problem if laws are not properly scrutinised by experts. The response to this criticism is provided by the indirect initiative. In nine US states (Maine, Massachusetts, Michigan, Nevada, Utah, Ohio, South Dakota, Washington and Wyoming), legislatures scrutinise the proposed measure prior to a vote. While initiatives in these states are relatively rare, there is some evidence to suggest that this procedure meets the opponents’ challenge. It is worth noting that there are many different versions of the indirect initiative. Some of the states allow moderation or amendment; others require the measure to be approved or rejected exactly as it came to the legislature. If rejected or sharply amended, the sponsors may force the measure to a vote by the people. As Neal Peirce has observed, H.S. Commager (1958) Majority Rule and Minority Right, Gloucester, Peter Smith, p. 28. 22 Commager, Majority Rule and Minority Right, p. 28. 21

34

Direct democracy

While the indirect initiative is no panacea there are powerful arguments in its favour. Above all, that it involves the legislators in the legislative process. The indirect initiative strengthens rather than weakens representative democracy by forcing the legislators to come to grips with an idea they may have sought to avoid before. It brings into play forces of moderation, compromise and common sense often lacking in direct initiatives.23

By allowing the legislature to debate – and if necessary amend – the  proposition, an element of public deliberation is injected into the process. It is for this reason some writers who are otherwise sceptical of the initiative, have come out in favour of this application of the device. Thomas Cronin, in his much-­cited study Direct Democracy: The Politics of Initiative, Referendum and Recall, concluded: ‘The indirect initiative does indeed delay legislative change. But it also provides an opportunity for measures to get a formal hearing and to benefit from the experience of veteran legislators and their staffs. It is a sensible option for states not permitting the direct initiative.’24 Yet the indirect initiative may not always be necessary. There is increasing evidence that direct initiatives are not crudely drafted. Most initiatives are now sponsored or backed by powerful and professional campaign groups (who have access to professional and legal advice), which means that the technical quality of the proposed measures is relatively high. Dennis Polhill, in a study of the initiative process in Colorado, found that Compared to bills that move through the Legislature, initiatives are no worse, and sometimes better. In Colorado, the Legislature drafts, considers, and disposes of about 600 bills per year in its 120-­day session. Each legislator is allowed to sponsor five bills (although there are procedures that allow more). Initiatives are usually drafted by small groups of activists who are passionate and well-­informed about their issues. It is not uncommon for development of a draft to take many months, even years. The procedure requires the same help that legislators get from the State Office of Legislative Legal Services (the bill drafting staff). The arduous task of getting on the ballot, the normal prospect of being substantially outspent in the campaign, the risk that any flaw is ammunition for the opposition, and the inevitability of court challenges upon passage provide important incentives for ­proponents to be both careful and reasonable in drafting their measure.25 N. Peirce (1979) ‘The Indirect Way for the Americans to Take the Initiative’, Sacramento Bee, 12 February, B2. 24 Cronin, Direct Democracy. 25 D. Polhill (1996) Are Coloradans Fit to Make Their Own Laws? A Common-­ Sense Primer on the Initiative Process, Denver, CO, The Independence Institute, p. 5. 23



Citizen initiated referendums35

It is, therefore, difficult to conclude that initiatives are less likely to be the product of deliberation than laws passed by representatives without direct citizen involvement. Policy implications of initiatives It is often claimed that direct legislation by the people is likely to result in populist policies which may not necessarily be desirable, at least to the political classes: an example of this would be the reintroduction of the death penalty. There are, however, no examples of this happening outside the US. In fact, referendums on the death penalty have resulted in its abolition, such as in Ireland in 2001. There are, however, examples of states in the US where voters have opted for the restoration of capital punishment. Yet there are also states where this decision has been taken by representative assemblies. Indeed, of the thirty-­eight states that have the death penalty, only three introduced it after a referendum. Based on a statistical analysis, Frederick J. Boehmke has found evidence to suggest that initiative states are less likely to adopt the death penalty than states that do not allow voters to enact legislation through initiatives. As he puts it, if a state were to ‘suddenly acquire the initiative, the model predicts that it would be almost 5 per cent less likely to adopt capital punishment’.26 However, as Boehmke himself pointed out, this is not necessarily the direct – or even indirect – consequence of the ­initiative. Cultural factors probably play a more dominant role; states with a large number of religious fundamentalists are significantly more likely to adopt capital punishment than are states with secular majorities. It is also often claimed that minorities suffer where direct democracy is in operation. While the initiative has occasionally been used to limit the rights of minority groups, such as in the case of Proposition 189 (which sought to ban illegal immigrants from all but emergency treatment in hospitals), it is important to note that all such measures have been struck down by the courts (see Chapter 8 below). Democracy, no matter how perfect, always requires the rule of law and minority protection. It is certainly the case that a limited number of initiatives have targeted minority groups, such as the constitutional measures aimed at preventing gay marriages in the 2004 and 2006 ­initiatives. But it is also a fact that voters supported gay marriages in all votes on this subject in 2012. F.J. Boehmke (2005) The Indirect Effect of Direct Legislation: How Institutions Shape Interest Group Systems, Columbus, OH, Ohio State University Press, p. 10.

26

36

Direct democracy

But this targeting of minorities is not a tendency that can be ascribed to direct democracy alone; indeed legislatures in states without provisions for initiatives have passed similar measures. In fact, it might be argued that a sound dose of direct democracy can also remedy an over-­eager legislature’s sins of commission. A recent example of this is provided by the poll on abortion in South Dakota in November 2006, when voters overturned an abortion law enacted by the legislature, which barred almost all abortions, including for rape and incest victims, and allowed them only if a mother’s life was in jeopardy. The contention that voters are always reactionary and opposed to change was also refuted by a successful initiative in Missouri, where a majority of the voters supported an initiative that allowed stem-­cell research, something which the legislature had opposed.27 In general, minority rights are no more threatened by initiatives than they are by representative institutions. This is not to say, however, that it is impossible to detect other tendencies and trends from the use of the initiative. According to a recent study, States with the initiative process are more likely to adopt policies that constrain how legislators govern; they have higher adoption rates of term-­ limits, supermajority requirements for tax-­increases and tax expenditure limits . . . Initiative states are more likely to adopt election reforms, such as campaign finance restriction.28

In other words, states with provisions for initiatives have adopted measures that are favoured by Republicans (such as tax expenditure limits) as well as measures which are usually favoured by the Democrats (such as campaign finance restrictions). This view is supported in a study by John Matsusaka in which he concluded that, The evidence to date shows that initiative states are more responsive to opinion than non-­initiative states when it comes to fiscal policy, parental consent . . . it is also clear that initiative states are more responsive to public opinion about term limits. There is no valid evidence along any policy dimension that initiative states are less (or equally) responsive to opinion than non-­initiative states. The only view that is currently supported by scientific evidence is that the initiative makes policy more responsive to public opinion.29 See E. Luce and A. Remtulla (2006) ‘Iraq War Decimates Republican Vote’, Financial Times, 8 October. 28 C.J. Tolbert and D.A. Smith (2006) ‘Representation and Direct Democracy in the United States’, Representation, Vol. 42, No. 1, 25–44. 29 Matsusaka, For the Many or the Few. 27



Citizen initiated referendums37

While this is the case in the US, it does not, of course, imply that the same would be true in other countries if citizens were allowed to trigger votes on policy issues. The enactment of particular public policies depends to a large extent upon political culture. But there is some evidence that the initiative has some of the same effects elsewhere. According to a Swiss study, the evidence suggests that, Direct democracy is positively related to some macro-­economic indicators such as low state budgets, low budget deficits and low tax levels . . . for some policies, direct democracy seems to lead to policies closer to the median voter than in purely representative democracies.30

Another Swiss study came to a related conclusion: namely that output per capita was higher in Swiss cantons with the initiative than in those that do not allow the citizens to initiate legislation.31 One interpretation of these findings could be that the initiative causes the government to choose policies that are conducive to economic growth as the initiative is ostensibly used to direct public funds into infrastructure instead of pork barrel projects. Is the initiative time-­consuming and costly? Another argument against the initiative is that – while desirable on other grounds – it suffers from the shortcoming that it is time-­consuming and expensive. The 2004 North East Regional Assembly referendum in the UK, which was postal, cost 99p per elector in single-­tier authorities, and £1.40 per elector in two-­tier authorities, at a total cost of £2.3 million.32 Whether that is a lot, and whether we should incur that cost in return for more engagement, is a value judgement. But there are methods that could make it cheaper. For example, it would reduce the costs if the initiatives were held at the same time as elections, though this could lead to confusion and take focus away from certain issues. Generally speaking, the cost is a decision that must be weighed up against the perceived utility of the device. Democracy does indeed take time. But that is not in itself an argument against the initiative. Few would, presumably, argue for the abolition of representative democracy on the basis of the fact that general elections are time-­consuming or expensive! G. Lutz (2006) ‘Direct Democracy in Switzerland’, Representation, Vol. 42, No. 1, 45–57. 31 L.P. Feld and M.R. Savioz (1997) ‘Direct Democracy Matters for Economic Performance: An Empirical Investigation’, Kyklos, Vol. 50, No. 4, 507–38. 32 The Electoral Commission (2005) The 2004 North East Regional Assembly and Local Government Referendums, p. 52. 30

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Direct democracy

Moreover, it is debatable whether initiatives are, in fact, overly time-­consuming. There are no studies of initiatives in Switzerland or California which have shown that citizens are critical of the process because of the time it takes. Empirical research is rarely unidirectional and unequivocal, but it is worth noting that there are several studies that suggest that voters are able to make up their minds about issues even though they have not spent hours deliberating upon the finer points of the proposed legislation.33 Voters in California and Switzerland do not spend huge amounts of time on initiatives, but they are nevertheless extremely well informed about the process and its implications. Direct democracy is about important issues. Citizens are not – and should not be – engaged in democracy all the time. The initiative is not an alternative to representative democracy: government through  elected representatives is the norm, but sometimes representative democracy does not work. The initiative should be ­ available for citizens to correct the sins of omission of MPs, not to make representative government redundant. It is on the occasions that the initiative is used that citizens are willing to spend more time on democracy. The question of campaign spending is more controversial. In the US, there are examples of campaigns in which one-­sided campaign spending has seemingly created a bias in favour of the better-­funded side. Yet, surprisingly perhaps, most studies suggest that there are few examples of one-­sided campaign spending which has led to the passage of controversial legislation, although in some cases high campaign spending appears to have led to defeat of propositions. Campaign spending is a perennial concern in Switzerland too – with considerable amounts of money spent on certain campaigns. However, there is some evidence that money spent does not have a huge impact on the outcome. As Kris Kobach noted, There is empirical support for the view that money has little impact on voting outcomes. For example, in the case of the initiative that broke the 33-­year dry spell of successful attempts, the 1982 price control initiative, the sponsors spent extraordinarily little on the campaign . . . they didn’t even purchase posters to advertise their position.34 S. Hobolt (2007) ‘Taking Cues on Europe? Voter Competence and Party Endorsements in Referendums on European Integration’, European Journal of Political Research, Vol. 46, No. 2, 151–82. 34 K. Kobach (1992) The Referendum: Direct Democracy in Switzerland, London, Dartmouth Publishing Company, 1992. 33



Citizen initiated referendums39

Such results do not prove that money is completely ineffectual. As there is still a possibility that money can have some effect on the outcome, campaign groups still spend money on campaigning activity. As Kobach concludes, ‘Some proposals are compelling enough to succeed with minimal financial backing . . . most interests are unwilling to risk being mistaken in this respect, so they hedge their bets by spending massive amounts.’35 In the British context the issue of campaign spending is not, however, likely to be of great concern as the Political Parties, Elections and Referendums Act 2000 sets strict limits for campaign spending and  ­provides for the establishment of umbrella organisations for the Yes and No campaigns. Some might argue that it is expensive to organise initiatives. It is of course true that democracy costs money. Most valuable things do. But if referendums could only be held on the same day as other elections, either local or national, that would reduce the cost considerably. More importantly, citizens’ initiatives would certainly not be more expensive than the huge amount of mandatory consultations and opinion polling carried out by governments and local authorities. It might also be worth noting that General Election campaigns cost tens of millions of pounds but nobody raises this as an objection to representative democracy. Would initiatives lead to democratic involvement? While some see democracy as desirable on purely utilitarian grounds, others favour it for idealistic reasons. To them, institutions that encourage greater public engagement have an intrinsic democratic value. How does the initiative fare in this regard? An often-­noted consequence of this form of direct democracy is that turnout seems to be higher in states which employ the initiative rather than in those which do not allow the citizens to initiate legislation.36 While the evidence is hotly debated, there are findings that corroborate this thesis. In a much-­cited study, David Schmidt found that turnout in the American states which used initiatives was – on average – 5 per cent higher than in the states that did not. He also found that voter turnout was higher in states with initiatives on the ballot than elsewhere – 50 per cent compared to 42 per cent. The research showed that ballot initiatives tend to have a bigger impact in non-­presidential election years, where the Kobach, The Referendum, p. 249. B. Barber (1984) Strong Democracy. Participatory Politics for a New Age, Berkeley, CA, University of California Press, p. 235.

35 36

40

Direct democracy

difference in turnout is 45 per cent to 34 per cent, than in presidential election years, where the differential is only 57 per cent to 55 per cent.37 More recently, Daniel Smith and Caroline Tolbert found that each additional initiative on the ballot during a midterm election in America increases turnout by an average of 1.2 per cent. They also found that citizens were more knowledgeable, interested and engaged in politics when there are propositions on the ballot.38 An initial analysis of the 2006 midterm elections also shows higher turnout in states with initiatives on the ballot. Average turnout for the eighteen states with initiatives was 45.1 per cent while the thirty-­two states without initiatives averaged 39.6 per cent. Turnout across the US was 40.4 per cent. Initiatives are clearly not the only factor in determining turnout, with some non-­initiative states registering high turnout and some initiative states with low numbers voting. But initiative states tend to experience higher turnout; thirteen of the eighteen are in the top 50 per cent of states ranked by turnout, and only one is in the bottom 25 per cent.39 Election officials in several states – but particularly in South Dakota  –  attributed high turnouts to the presence of controversial initiatives on the ballot. In South Dakota, where turnout was almost 58 per cent, there were eight initiatives, including proposals to increase tobacco tax to fund health and education services; stop state aircraft being used for non-­official business; limit property tax increases; legalise marijuana for medical use and abolish the video lottery (the state-­run network of gambling machines). There was also a Popular Referendum (where citizens collected enough signatures to challenge a law passed by the legislature) on abortion. It should be noted that turnout in midterm elections tends to be 10 to 20 percentage points lower than that in presidential elections. As one observer noted: ‘The ballot issues are driving the vote. Very clearly, they bring great interest from all voters.’40 It should be noted, however, that the positive relationship between initiatives and turnout has not been found in other countries, where large numbers of frequent referendums can lead to a lower turnout. D. Schmidt (1989) Citizen Lawmakers: The Ballot Initiative Revolution, Philadelphia, Temple University Press, p. 50. 38 Dan Smith and Caroline Tolbert (2004) Educated by Initiative: The Effects of Direct Democracy on Citizens and Political Organisations, Ann Arbor, Michigan University Press, p. 62. 39 Smith and Tolbert, Educated by Initiative, p. 62. 40 Cited by S. Burrish (2006) ‘Ballot Measures Spur High Turnout’, Sioux Falls Argus, 8 November. 37



Citizen initiated referendums41

Table 2.3:  Turnout in November 2006 midterm elections (states with initiatives on the ballot are shown in bold) State Minnesota South Dakota Montana Vermont Maine Wisconsin Michigan Rhode Island Oregon Wyoming Massachusetts Missouri Connecticut Iowa Nebraska Alaska North Dakota Ohio Virginia Pennsylvania Idaho New Hampshire Kansas Washington Delaware

Turnout(%) 59.19 57.95 55.58 54.89 54.19 52.20 51.51 51.21 50.69 49.71 49.03 48.30 47.39 47.32 46.09 44.77 44.65 44.64 43.82 43.25 42.82 42.04 42.03 41.57 40.86

State Colorado Maryland Tennessee New Mexico Kentucky Hawaii Illinois New Jersey Florida California Nevada Arkansas Alabama Oklahoma Indiana New York South Carolina Utah Georgia West Virginia Texas Arizona North Carol Louisiana Mississippi

Turnout(%) 40.73 40.54 39.96 39.87 39.00 38.60 38.46 38.18 37.50 36.05 35.8 35.73 35.5 35.31 35.23 33.82 33.67 33.17 32.11 31.51 30.11 29.39 28.89 26.81 26.8

Source: C. Gans, Voter Turnout, American University, 2006. California, Oregon and Washington turnouts updated by the author with latest voting figures from state government websites (these were not complete at the time of Gans’ study on 9 November 2006)

Referendums do not always encourage turnout – sometimes they can lead to apathy too. The initiative in the rest of the world Outside the US and Switzerland, the initiative is used sparingly and as an exception. For those wary of direct democracy, it is important to point out that there is an alternative to the frequent use of the initiative in California and the Swiss Cantons. There are a range of other countries that have experimented with the initiative, seemingly inspired by its use in the US. Lithuania is the only European country that has made extensive use of the device, with six proposals being balloted from 1990 to 1996, but the Ukraine, Latvia, Hungary and Slovakia also have provisions for initiatives.

42

Direct democracy

In Lithuania, two of the initiatives have been successful. An initiative on reducing the number of parliamentary deputies from 141 to 111 passed in 1996, as did a proposal (in the same year) that mandated the government to spend a specified amount of the national budget on social security. However, the other initiatives, which dealt with matters regarding privatisation, were declared invalid as a result of low turnout. The 50 per cent turnout requirement seems to have been the main reason for the declining popularity of the initiative in the country. High turnout requirements have also been a barrier to successful use of the initiative elsewhere. Perhaps the most controversial initiative in the former communist countries took place in Hungary in 1989, when the Communist Party initiated a vote on whether the President should be directly elected. The party expected that the direct election of the executive would boost the Communists’ chances of securing the election of one of the candidates. However, the plan failed to meet the 50 per cent turnout quorum as only 9 per cent of the voters cast a ballot.41 Initiatives in Slovakia, on issues such as bringing forward the date of the next election, have also fallen due to low turnout. Citizens in Latvia have a full range of initiative and referendum rights but ‘the restrictions and framework are rather complicated and not very citizen-­friendly’.42 The support of 10 per cent of the population is needed to trigger an initiative and turnout must be 50 per cent of the number who voted in the last parliamentary election. Constitutional amendments must be supported by half of the electorate. In 1999, an initiative proposing one of three different pension systems for Latvia was defeated as none of the proposals won more than 50 per cent of the votes. However, in June 2000 the initiative process led to success for a popular measure without a vote taking place. Nearly 23 per cent of the population signed a petition for a draft law to prohibit the privatisation of the state-­owned energy enterprise Latvenergo. The law was adopted by the government and so no referendum was needed. It is clear that strict turnout and signature requirements have limited the use and success of the initiative across Eastern Europe. It could be argued that if, as stated above, initiatives encouraged political participation, then high turnout requirements should not be problematic. But this would fail to take into account the specific conditions in the region. The Jon Elster et al. (1998) Institutional Design in Post-­ Communist Societies: Rebuilding a Ship at Sea, Cambridge, Cambridge University Press, p. 66. 42 B. Kaufman and M.D. Waters (2004) Direct Democracy in Europe. A Comprehensive Reference Guide to the Initiative and Referendum Process in Europe, Durham, NC, Carolina Academic Press, p. 77. 41



Citizen initiated referendums43

legacy of close to 50 years of communist rule and a limited democratic tradition cannot be ignored. Initiatives in Western representative democracies In 2006 the Power Commission – a British cross-­party pressure group – proposed the introduction of the citizens’ initiative. According to the report by the commission (Power to the People): ‘Citizens should be given the right to initiate legislative processes’.43 But how would the initiative fare if it were to be introduced into Britain? The evidence from California, Oregon and Switzerland, may not be of much use. No one seriously believe that the parliamentary system of government in the UK could, or indeed should, be replaced by a direct democracy like the one known in these places. What we need is to look at countries that have used the initiative sparingly. One obvious case to be considered is New Zealand, and the other countries in Europe where the initiative has been utilised at the local and state levels, such as Belgium, the Netherlands and Germany, where initiatives have recently played an increasing – if not always very publicised – role in local government.44 But we start with New Zealand. The case of New Zealand Given that New Zealand – a former British colony with a constitutional monarchy – operates a parliamentary system and lacks a written constitution it is interesting for Britain that it has recently adopted the initiative. But can it provide a model for Britain? Proposals for the introduction of the citizens’ initiative have a long history in New Zealand. As far back as 1918 a proposal for direct legislation had been introduced and in 1983 a similar measure was defeated in Parliament. The 1980s was a period of considerable constitutional and political reform in New Zealand. As part of a widespread reform of the country’s democracy, the introduction of the initiative was discussed. Interestingly, the implementation of the initiative (known as the citizen initiated referendum or CIR) went against the advice of the Royal Commission on the Electoral System 1986. The RCES stated that: ‘In general, initiatives Power Commission (2006), Power to the People, London, Power Commission, p. 238. 44 Susan Scarrow (2001) ‘Direct Democracy and Institutional Change’, Comparative Political Studies, Vol. 34, No. 6, p. 663. 43

44

Direct democracy

and referenda are blunt and crude devices . . . [that] would blur the lines of accountability and responsibility of Governments.’45 Despite this, the proposal was included in the National Party’s election manifesto and the party passed the Citizens Initiated Referenda Act 1993. Initiatives are often seen as alternatives to representative democracy. This was not the view taken by the majority who voted for the introduction of the initiative in New Zealand. As Chris Fletcher MP noted, ‘I see this Bill as being complementary to our current electoral system. I think that it is progressive legislation . . . New Zealand will be the first Commonwealth country to introduce legislation of this kind to allow for citizens-­initiated referenda.’46 There are a number of restrictions on the use of the initiative in New Zealand. The number of signatures required to trigger a ballot is very high – 10 per cent of the population – thus severely limiting the number of issues ever likely to be decided by referendum (in California the signature requirement is only 5 per cent). More importantly, however, the result is not binding.47 David Lange, the Prime Minister, expressed reservations about this when the initiative was being considered: ‘[I]t is actually a fraud on the community for the Government to ask it for its opinion when the Government has said that it will not necessarily follow that opinion’.48 The restrictions on its use have meant that these fears have materialised. In fact, the government has been remarkably unwilling to listen, as we shall see shortly. The promoters of any initiative must first get their proposed referendum question and petition form approved, and then collect the required signatures within twelve months. There is a $50,000 (£17,400) spending limit on promoting a petition, as well as a $50,000 spending limit on campaigning for any particular result if a referendum is called.49 Such a cap on expenditure, arguably, acts as a deterrent to campaigners interested in using the initiative as a route to bring about political change. The idea behind this was to create a level playing field between promoters and detractors, so a particular result couldn’t be ‘bought’. The first citizens’ initiative under the new legislation was held in Quoted in Caroline Morris (2004) ‘Improving Our Democracy or a Fraud on the Community? A Closer Look at New Zealand’s Citizens Initiated Referenda Act 1993’, Statute Law Review, Vol. 25, No. 2, 117. 46 Morris, ‘Improving Our Democracy or a Fraud on the Community?’, 116. 47 Helena Catt (2001) ‘Citizen Initiated Referenda’, in Raymond Miller (ed.), New Zealand: Government and Politics, South Melbourne, Victoria, Oxford University Press, p. 387. 48 Morris, ‘Improving Our Democracy or a Fraud on the Community?’, 117. 49 Catt, ‘Citizen Initiated Referenda’, p. 387. 45



Citizen initiated referendums45

Table 2.4:  Citizens’ initiated referendum results in New Zealand Date

Turnout (%)

2 December 1995

27.7

27 November 1999 27 November 1999 22 August 2008

84.8 81.4 56.09

Issue

Result

Allow reduction in number of fire-­ fighters Reduce number of MPs to 99 Reform justice system Criminalise smacking as part of parental correction

87.8% No 81.5% Yes 91.7% Yes 87.4% No

Source: New Zealand Electoral Commission

1995. The question: ‘Should the number of professional fire-­fighters employed full-­time in the New Zealand Fire Service be reduced below the number employed on 1 January 1995?’ was unique in that it aimed to elicit a ‘no’ response. Turnout was low and the measure passed easily. However, the government refused to take any notice of the result, citing the loaded question, the low participation (27.7 per cent) ‘and the general inappropriateness of dealing with a complex issue of industrial relations and budgeting priorities by such a blunt Yes/No question’.50 Four years later, in the 1999 election, two initiatives were put on the ballot. One was to reduce the number of Members of Parliament from 120 to 99. Electors overwhelmingly voted in favour of the proposal, with 81.47 per cent voting for this proposal. However, there were no moves to amend the Electoral Act 1993 in line with this result. The question of the appropriate number of MPs was, to be sure, a term of reference for the MMP Review Committee, which was established in April 2000 to evaluate the existing electoral system in New Zealand. Indeed, it referred to the CIR result, and the referendum proposer, Margaret Robertson, gave evidence before the Committee. But, the Committee did not agree on this point, and so made no recommendation.51 The other referendum held in 1999 asked ‘Should there be a reform of our justice system placing greater emphasis on the needs of victims, providing restitution and compensation for them and imposing minimum sentences and hard labour for all serious violent offences?’ The initiative was started by Norman Withers, who was appalled that a perpetrator of a violent assault on his mother (a shopkeeper) received Richard Mulgan (1997) Politics in New Zealand, 2nd edn, Auckland, Auckland University Press, p. 284. 51 www.parliament.nz/NR/rdonlyres/067094C5-­47A4-­43AA-­AE7F 5D7C15B55 D3E/36327/DBSCH_SCR_3542_3576.pdf (accessed 1 May 2007). 50

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Box 4: Smacking: a case study In response to an amendment to the Crimes Act, Art. 59, which outlawed ‘the the use of force for the purpose of correction’, two petitions for citizen initiated referendums were launched in February 2007. The wording for the two referendums were: ‘Should a smack as part of good parental correction be a criminal offence in New Zealand?’ and ‘Should the Government give urgent priority to understanding and addressing the wider causes of family breakdown, family violence and child abuse in New Zealand?’ In February 2008, with the bill to amend the Crimes Act having been passed in the meantime, supporters of the referendums claimed that they had collected enough signatures. The petition was supported by Family First New Zealand, the ACT Party and the Kiwi Party. The first petition was presented on 29 February 2008 to the Clerk of the House of Representatives, who vetted the signatures along with the Chief Electoral Officer. Of 280,275 signatures required to force a referendum, only 269,500 were confirmed – a shortfall of 10,775. As a result, Kiwi Party leader Larry Baldock started a new petition. This was successful. And two months later he handed over 390,000 signatures. The referendum was held from 31 July to 21 August 2009. On 25 August 2009, the Chief Electoral Officer released the results of the citizen initiated referendum. According to the results 87.4 per cent of the voters supported the reintroduction of the right to smack children. Turnout was 56.09 per cent. Yet nothing happened. The law was not changed. Both the Prime Minister John Key and Leader of the Opposition Phil Goff said the results of the referendum would not commit them to repealing the law. Source: Audrey Young (25 August 2009), ‘PM: Smacking law review gives parents “comfort”’, The New Zealand Herald (Auckland).

(what he considered) a lenient sentence. In response to this perceived injustice he started an initiative. The measure passed by 87.4 per cent. Although the referendum’s provisions were not binding on Parliament, some of the measures supported by the public have been subsequently introduced as changes to the Criminal Justice Act or Sentencing Act re parole 2000. But it would an exaggeration to say that the will of the people prevailed. While the initiative has had little direct impact on New Zealand’s legislation, it is interesting that the introduction has had a discernable effect on the voters’ perception of MPs. According to a survey about direct democracy carried out by the New Zealand Election Study in 1993, 63 per cent of the respondents agreed



Citizen initiated referendums47

Table 2.5:  Public perceptions of politicians and the political process Statement MPs out of touch People like me have no say Politicians don’t care what people  think Government run by few big interests Trust government to do what is right Total N

1993 1996 1998 1999 2001 2002 2005 61 63 66

53 57 57

76 – –

52 55 55

56 – –

49 46 50

44 48 44

60 31

54 30

– 26

50 36

– 47

42 44

39 45

535

5601

724

2205 4086

4500 2608

Source: www.nzes.org

with the proposition ‘People like me have no say’. Ten years on the percentage taking this view had fallen to 48 per cent.52 Of course this could be a result of other factors, such as the introduction of MMP.53 It is difficult to determine this with mathematical accuracy. As Table 2.5 shows, public perceptions of politics and politicians have grown markedly more positive since the mid-1990s. Except for a drop in 1998 – the year when Winston Peters, the then Deputy Prime Minister from the New Zealand First Party caused upset by describing the Prime Minister as ‘devious’ and ‘untrustworthy’ before he resigned – there has been an upsurge in the regard for the political process.54 When we contrast this with other countries – such as Britain, Germany and other developed democracies – these figures are little short of being remarkable. A survey undertaken in Germany in 2006 showed that only 18 per cent agreed with the proposition that ‘the people have something to say’ (‘das Volk etwas zu sagen hat’).55 A BBC poll from 2005 showed that most people believe their government does not act according to their wishes.56 Lack of confidence in governments was 64 per cent among Europeans (from the EU) and 60 per cent among Americans.57 www.parliament.nz/NR/rdonlyres/067094C5-­47A4-­43AA-­AE7F-­5D7C15B55 D3E/36327/DBSCH_SCR_3542_3576.pdf (accessed 10 June 2007). 53 Jack Vowles, Peter Aimer, Susan Banducci, Jeffrey Karp and Raymond Miller (eds) (2004) Voter’s Veto: The 2002 Election in New Zealand and the Consolidation of Minority Government, Auckland, Auckland University Press. 54 Arthur Banks et al. (2006) The Political Handbook of the World, Washington DC, CQ-­Press, p. 837. 55 Mehr Demokratie (2006) Zweites Volksentscheid Ranking: Länder und Gemeinden in Demokratie –Vergleich Januar 2007, Berlin, Haus der Demokratie und Menschenrechte. 56 Brian Whitaker (2005) ‘Politicians are Voted the World’s Least Trusted People’, Guardian, 15 September. 57 Whitaker, ‘Politicians are Voted the World’s Least Trusted People’. 52

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Table 2.6:  Should results of citizen initiated referendums be legislated by Parliament? Statement Referendums too  complicated for the average voter Citizen initiated  referendums enable citizens to get the politicians’ attention Results of citizen  initiated referendums should automatically become law Parliament, not  voters, should make final decision about law and politics

Agree (%) Neutral (%) Disagree (%) Don’t know (%) N 19

13

60

 8

4878

77

 7

38

13

4890

30

19

38

13

4877

47

12

32

 9

4872

Source: www.nzes.org

While the figures are not directly comparable, it seems that the reverse trend can be observed in New Zealand. While we should not throw caution to the proverbial winds, it is moreover noteworthy that 77 per cent – according to the New Zealand survey – found that ‘citizen initiated referendums enable citizens to get the politicians’ attention’. Yet a plurality – 38 per cent – disagreed that ‘the result of citizen initiated referendums should automatically become law’.58 Voters want CIR as a last resort; a safety-­valve on democracy. They do not consider themselves incapable of making decisions (only 19 per cent agree with this proposition), but while they regard themselves as competent to make decisions, a plurality of 47 nevertheless believe that laws should be made by their elected representatives. It can thus be argued – though we cannot prove this – that the experience in New Zealand shows that, if introduced in a very restrictive way, the initiative will engage the interest of voters and reduce mistrust of politicians. And while, it is ‘one of the most under-­utilized Acts on the statute book’,59 it is interesting that the provision for the initiative is compatible with a belief in representative democracy – as a complement rather than as an alternative. So whereas the evidence from America and Switzerland suggests that the initiative often results in a higher turnout and more political Mehr Demokratie, Zweites Volksentscheid Ranking. Morris, ‘Improving Our Democracy or a Fraud on the Community?’, 117.

58 59



Citizen initiated referendums49

e­ ngagement as well as a number of policy factors (especially lower taxation and tighter regulation of polluting industries), the evidence from New Zealand does not support this conclusion. The evidence is still relatively weak, however, and based on sparse examples. We cannot draw conclusions on the basis of one example only. The problem is that we have to compare like with like. There are other countries that have introduced the initiative such as Hungary, Slovenia and other polities in the former communist countries. But given the historical differences between these countries and long-­established Western democracies, it is questionable if we can compare these two categories of countries. To determine the effect of the use of initiatives and abrogative referendums, we need to look at established Western democracies. This leaves us with only three examples: local initiatives and referendums in Belgium, Germany and the Netherlands. Can we expect to find similar evidence in these countries? Do initiatives and referendums have the same effect in these countries as they seem to have had in the USA, Switzerland, and, indeed, in New Zealand? One of the findings from survey evidence in the latter country was that voters became more trusting of politicians after the introduction of the citizen initiated referendum. There are suggestions that this is also the case in Germany. The initiative in Germany: localism in practice? Direct democracy in the Federal Republic was long anathema to the Constitution. After the abuse of direct democracy in the Hitler era, Germany suffered from what one observer has called die plebisphobie der Nachkriegsera60 – the ‘referendum phobia of the post-­war era’. This persisted until the 1960s, when Länder like Bavaria and North Rheine West Palatine introduced the abrogative referendum (and in the case of Bavaria also the initiative). This plebisphobie changed in the 1990. Spurred on by the democratisation in Eastern Europe, all the new Länder adopted the initiative in the 1990s, and in the years after that other Länder have followed suit. As we saw, one of the effects of the initiative in New Zealand was that politicians were perceived as being more responsive to the views of the voters. Some have argued that a similar effect was noted in Germany. In 1989, the Social Democrat government in North Rheine West Palatine decided to introduce the so-­called Ko-­operative schule – roughly s­ peaking Wolfgang Luthardt (1994) Direkte Demokratie. Ein Internationaler Vergleich, Baden-­Baden, Nomos-­Verlag, p.  107.

60

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Direct democracy

Table 2.7:  Provisions for initiatives in Germany State (Land)

Signature requirement (%)

supermajority requirement (%)

Baden-­Württemberg Bavaria Berlin Brandenburg Bremen Hamburg Hessen Mecklenburg-­Vorpommern Niedersachsen Nordrhein-­Westfalia Rheinland-­Pfalz Saarland Sachsen Sachsen-­Anhalt Schleswig-­Holstein Thüringen

16.6 10 20 c. 4 20  5 20 c. 8.5 10  8 c. 10 20 c. 12 11  5 10  8

33.3 No quorum 25 25 25 20 No quorum 33.3 25 15 25 (Turnout requirement) 50 No quorum 25 25 25

Source: www.mehr-­demokratie.de/ (accessed 4 November 2012)

a form of ‘comprehensive’ school. This meant that the Land would abolish the Gymnasium (the equivalent of UK grammar schools). The Social Democrats had a majority in the Landtag (provincial parliament), hence they were relatively free to introduce legislation. The only restriction on legislators was the voters. In this case, the latter took action. After the proposal for school reform had been tabled, a group of citizens established Stop-­Ko-­op. The citizens – with the support of the opposition parties CDU and FDP – easily collected signatures from more than 15 per cent of voters. In the face of this opposition, Johannes Rau, – the State Premier (Ministerpräsident) amended the bill. Existing Gymnasiums were allowed to continue alongside the new comprehensives. The initiative had worked although no poll was held. Anecdotal evidence suggests that trust in politicians increased and turnout was higher at the time of subsequent elections, though that is not necessarily a result of the razzmatazz caused by the referendum that never was. More interestingly, the Social Democrats were returned to office, but the idea of comprehensive schools was silently dropped. The people, arguably, won the argument – not the opposition parties, who sought to ride on the coattails of an unpopular measure.61 Can this pattern be found elsewhere, e.g. in the Netherlands? Luthardt, Direkte Demokratie, p. 113.

61



Citizen initiated referendums51

Table 2.8:  Themes in German direct democracy votes Theme Social issues Heritage and culture Democracy Economics Environment Transport Miscelleneaous Total

2006

1949–2006

Number

%

Total Number

Total %

 5  4  4  1  1  1  3 19

 26  21  21   5   5   5  16 100

 29  67  49  21  23  14  20 223

 13  30  22   9  10   6   9 100

Source: Personal communication with Prof. Theo Schiller, Marburg University, June 2007

The Netherlands The Netherlands is a bit of a paradox politically. A model republic from the seventeenth century, many of the original ideas about tolerance, freedom and democracy were imported into Britain from the Low Countries. Yet, despite its democratic pedigree, the Netherlands was, until 2005, one of only a handful of countries never to have held a nationwide referendum.62 The introduction of the devices was a consistent feature of the centrist liberal party D66’s electoral platform from the time of its formation in 1966. However, the other main Dutch political parties (Partij van der Arbeid (PvdA – Labour), Christen Democratisch Appél (CDA – Christian Democrats) and the Volkspartij van Vrijheid en Democratie (VVD – Liberals), have been opposed to referendums and initiatives.63 Indeed, a former leader of the VVD devoted a whole essay to attacking the referendum as an institution which would ‘sever the roots of democracy’.64 While this support has previously been but a peripheral issue, it gradually become one of the D66’s touchstone issues, and indeed one of the party’s conditions for joining the Liberals and the Christian Democrats in the coalition government led by Jan-­Peter Balkenende (CDA) in 2003. Piet Gilhuis (1981) Het Referendum: Ein rechtvergelijkende studie, Hague, Alpen aan den Rijn, Samsom. 63 Joop J.M. Van Holsteyn (2005) ‘“To Refer or Not To Refer, That’s the Question”: On the First National Referendum in the Netherlands’, Paper presented at the ECPR general conference, 8–10 September, Budapest. 64 W.J. Geertsema (1987) Het Referéndum: Bijl aan de Wortels van de Democratie, De Haan, Houlten. 62

52

Direct democracy

While idealistic concerns should not be ignored, this enthusiasm for referendums was ostensibly also a result of the strong public support for referendums. According to the Dutch Parliamentary Election Study (DPES) of 2003, 76 per cent of the respondents ‘fully agreed’ with the statement ‘On some of the important decisions in our country voters should be able to vote by means of a so-­called referendum’.65 The political elites were less convinced. Previously, a constitutional amendment for an abrogative referendum (het korrektives referendum)66 – which would have allowed voters to demand a vote on an already existing law if they secured a particular number of signatures – had been proposed. This proposal was, however, rejected by the Senate (Eerste Kamer) in 1999 when Hans Weigel, former leader of the VVD, cast his vote against the amendment, which consequently ‘failed to pass by one vote’.67 As a result of this only provisions for local referendums and initiatives were introduced – and the latter in fact only in a few cities, most notably Nijmegen, Groeningen and Leiden.68 Nijmegen stands out as the only municipality where the initiative has been used, perhaps not surprisingly as the mayor Thom de Graaf (a  former cabinet minister in The Hague), represents D66 in coalition with the Socialist Party (Socialistische Partij), The Green Party (GroenLinks) and the PvdA. In a resolution (verordening) in 2006, the city council decided that the citizens should be entitled to propose new by-­laws, provided that they could gather signatures from a specified number of citizens. This volksinitiatief (people’s initiative) would be held if a group was able to gather as many signatures as it on average took to elect a member of the city council in 2006. In order that the process should not be hijacked by political parties eager to score points, it was agreed that political parties were barred from formally organising an initiative and that this should be left to community groups.69 In a subsequent decision it was agreed that initiatives could not concern minority groups (kwetsbare groupen) and individuals (individuele kwesties). But apart from this, initiatives could be held on all matters devolved to local government.70 Holsteyn, ‘To Refer or Not To Refer’, p. 34. Paul Lucardie and Gerrit Voerman (2004) ‘The Netherlands’, European Journal of Political Research, Vol. 43, No. 4, 1084–92. 67 R.B. Andeweg and G.A. Irwin (2005) Governance and Politics in the Netherlands, 2nd edn, Basingstoke, Palgrave, p. 87. 68 Gemeenteblad Nijmegen (2011) Referendumverordening (2000). 69 Gemeenteblad Nijmegen, Referendumverordening. 70 Nijmegen Raadsvoorstel No. 169/2004. 65 66



Citizen initiated referendums53

Undoubtedly, the city council believed that the mechanism would primarily be used by groups on the left.71 This was not to be. As always, a bit of context is useful. In the seventeenth century the Prince of Orange – a relative of William of Orange – had built a tower in the city, which was used as a prison for prominent historical figures. During the Second World War, however, most of Nijmegen was levelled and the tower and many other historical buildings were destroyed. In 2000, a temporary model of the tower was built in the Valkhofpark in the centre of town. Individual citizens organised a petition with the aim of holding an initiative by which citizens could vote for or against the creation of a permanent structure. This was not the way the city council’s majority had wanted to use the initiative. The Green Party, which held a majority at city Hall, was completely against the building of a permanent 120ft tower in a recreational park. However, the citizens easily succeeded in getting the required 1,632 signatures. One of the aims of introducing the initiative was to boost turnout and increase public engagement in the political process. As in Britain, however, turnout in local and council elections had been lamentably low (often descending into the low twenties). In order to test if the initiative had this effect as well as to ensure that the decision would be seen as legitimate, the poll was scheduled for the same date as the municipal elections, i.e. 6 March 2006. One of the original arguments for referendums was that they allowed the voters to have their democratic cake and eat it, that is, voters could simultaneously vote for a party they agreed with and at the same time vote for a policy which was opposed by the same party. This is very much what happened in Nijmegen in March 2006. The Green Party and its allies on the left won the election and maintained their majority at City Hall, but the voters defied the parties they voted for and also supported the permanent building of the tower. 60.19 per cent of the voters – on a 55 per cent turnout – voted ‘for’ the proposition: ‘Are you for or against the building of the dungeon tower?’ (Bent u voor of tegen herbouw van de donjon?). But does this result mean that the initiative achieved its stated aims? It is one thing that the voters were able to make decisions without seemingly being swayed by their party loyalties, but did the initiative also reach its participatory aims? It is difficult to answer this question unequivocally in the absence of survey data. However, officials and stakeholders point to a number of features which were observed. One of these was the generally higher turnout. Dr Marjan Hendriks, the City Clerk in charge of the initiative, is of the view that the poll had a number of Personal communication with Dr Marjan Hendrius (1 July 2007).

71

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Direct democracy

secondary policy effects. She says: ‘The fact that the initiative was held on the same day as the municipal election partly led to a higher turnout. It was not the initiative alone, but the two strengthened each other.’72 This is reinforced by figures from the municipal elections elsewhere in the Netherlands. Whereas turnout stagnated in most other cities, it was higher in Nijmegen as well as up a couple of notches in Groeningen (where a citizen initiated referendum was also held on polling day). This is not conclusive evidence that initiatives and referendums result in higher turnout and deeper political engagement, but interest in the initiative makes this highly probable according to Dr Hendriks: ‘It led to a lot of publicity and discussion, which is good for interest in politics.’73 As in New Zealand, the initiative in Nijmegen is but advisory. The voters cannot force the city government to implement a policy. But it is arguable that the initiative has had a notable effect. Unlike in New Zealand, where the government ignored the initiative about fire-­fighters, the local authority in Nijmegen abided by the result of the initiative. Excursus. Citizens’ juries Another mechanism which has occasionally been proposed is the citizens’ jury. The idea of a citizens’ jury is a simple one really. Instead of relying on tried and tested, adversarial, party politics, the government will select ‘ordinary people’ who – like members of a jury in a court case – will deliberate and make recommendations after they have taken evidence from experts. The idea was inspired by the movement towards so-­ called deliberative democracy, an idea that took off in the early 1980s, when Joseph Bessette coined the term.74 According to deliberative democrats, democracies become better and reach more beneficial results if citizens are given the opportunity to deliberate over complex issues. The idea of deliberation is thus based – though not explicitly so – on the ideal of communicative action espoused by Habermas and operationalised by writers such as John Dryzek75 and James Fishkin.76 And the method has Interview with the author (1 July 2007). Interview with the author. 74 Joseph Bessette (1980) ‘Deliberative Democracy: The Majority Principle in Republican Government’, in R. Goldwin and W. Shambra (eds), How Democratic is the Constitution?, Washington DC, AEI Press, pp. 102–16. 75 John S. Dryzek (1990)  Discursive Democracy: Politics, Policy, and Political Science, New York, Cambridge University Press. 76 James S. Fiskin (2009) When the People Speak: Deliberative Democracy and Public Consultation, Oxford, Oxford University Press. 72 73



Citizen initiated referendums55

been extensively used, especially in Canada, where there have been two prominent real world applications of deliberative democracy models. In 2004, the British Columbia Citizens’ Assembly on Electoral Reform convened a policy jury to consider alternatives to the first-­past-­the-­post electoral system. In 2007, the Ontario Citizens’ Assembly on Electoral Reform convened to consider alternative electoral systems in that province (See Chapter 6 below). Similarly, three of Ontario’s Local Health Integration Networks (LHIN) have referred their budget priorities to a citizens’ jury for advice and refinement. In a way, such deliberative fora are nothing new. E.P. Thompson’s historical analysis of the otherwise much-­reviled Luddites of nineteenth-­ century England is an example of how people have sought to subject new technologies to a public trial77. But this example is merely of historical interest and does not tell us how citizens’ juries and deliberative democracy might work in today’s society. In the United Kingdom citizens’ juries have been used to discuss GM crops, priorities in the NHS and to gauge support – or otherwise – for nanotechnology. But one of the problems is that there is very little hard empirical research on the effect of citizens’ juries, though this has partly been remedied through recent work.78 Critics may find it difficult not to see citizens’ juries as simply focus groups by another name. And some even might even argue that the former are more open to manipulation. For whereas participants in a focus group are free to talk, members of a citizens’ jury – unlike in court cases – are constantly controlled by a facilitator, or so the argument runs. But it is questionable if this criticism holds true. In fact, it might be the other way round. Gordon Brown famously said that citizens’ juries were his big idea and that he intended to use them extensively. However, when several juries returned the ‘wrong’ verdict the then Prime Minister never mentioned citizens’ juries again. Brown’s government was not the first one to discard the views of a citizens’ jury. The classic example is the GM-­Nation experiment in Britain in the summer of 2003. Billed as ‘an unprecedented experiment in citizen participation’, the website received 2.9 million hits and 24,609 visitors – of whom 60 per cent submitted feedback forms. Yet despite the expressed uneasiness on the part of the

E.P. Thompson (1963) The Making of the English Working Class, London, Harmondsworth. 78 Graham Smith and Corinne Wales (2000) ‘Citizens’ Juries and Deliberative Democracy’, Political Studies, Vol. 48, No. 1, 51–65. 77

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public, the government paid scant notice to their concerns.79  Another example of non-­listening was the citizens’ juries on nanotechnology conducted by the think-­tank DEMOS and Lancaster University. Contrary to expectation, the citizens grew warier of nanotechnology once it had been explained to them. These findings have had little impact on the government.80 But, this does not show that citizens’ juries are a bad idea. But it does indicate that mechanisms of direct democracy must have real teeth and that the government must – whether formally or not – take steps to act on the proposals put forward by the people. Britons are some of the most active, engaged and committed citizens in Europe. Fully 25 per cent of the population engaged in lawful protest (e.g. demonstrations) between 2000 and 2005.81 There is a lot of interest in politics. Citizens’ juries may not be efficient all the time. But they provide yet another avenue for the public to express their views and the existence of such ‘input’ channels has never had a negative impact on a well-­functioning democracy. But there is a snag, of course if you are a politician. If you give power to the people, they might use it against you. Governments rarely like to be told that they are wrong and that their policies do not work. Like Lord Nelson at the Battle of Copenhagen they have an in-­built tendency to put the telescope to the blind eye.

Nick F. Pidgeon et al. (2005) ‘Using Surveys in Public Participation Processes for Risk Decision Making: The Case of the 2003 British GM Nation? Public Debate’, Risk Analysis, Vol. 25, No. 2, 467–79. 80 Susan Pickard (1998) ‘Citizenship and Consumerism in Health Care: A Critique of Citizens’ Juries’, Social Policy & Administration, Vol. 32, No. 3, 226–44. 81 Russell Dalton (2005) Citizen Politics, Washington DC, CQ Press, p. 51.

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3

The citizens’ legislative initiative: a comparative analysis of the experiences in EU countries The article was buried on page 9 in Le Monde on a Saturday in 2011, when the media was dominated by a US-­led attack on Libya and the continuing crisis following a massive earthquake in Japan, which had led to nuclear contamination. Still, it was there. The French newspaper reported how the German Social Democrats (SPD) and their colleagues in the Austrian Labour Party (SPÖ) were preparing to introduce a bill through the ‘Initiative Procedure’ introduced in the Lisbon Treaty. The proposal was to force a moratorium on nuclear energy, which – in the view of the proposers – had shown itself to be unsafe in the wake of the Japanese earthquake. The French Socialist Party (PS) was not amused. The party remained – and remains – a staunch defender of nuclear energy, which is the main source of energy in France.1 What will come of the proposal remains unknown at the time of writing. Whether we can expect development on this front is an open question. But what is interesting is that the legislative initiative is used at all – or even contemplated. The reason that this issue was raised at all is due to the fact that the Lisbon Treaty includes a novel provision for citizen initiated legislation, known as The European Citizens’ Initiative (ECI). According to the Treaty on the Functioning of the European Union, citizens can propose legislation: Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties. (Art 11.4)

There have been great expectations as to the effect of the new mechanism.2 The question is if these expectations are justified. To answer this Frédéric Lemaître (2011) ‘La gauche Allemande et Autrichienne veut un referendum en Europe’, Le Monde, 19 March, A9.  2 Bruno Kaufman, Alain Lamassoure and Jurgen Meyer (2004) ‘Welcome to the Future of European Democracy’, in Bruno Kaufman, Alain Lamassoure and  1

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question this chapter proposes that we adopt a comparative approach and analyse how similar mechanisms have worked in individual member states. ‘The ultimate goal of a positive science is the development of a “theory” or, “hypothesis” that yields valid and meaningful (i.e. not truistic) predictions about phenomena not yet observed’, stated Milton Friedman.3 This chapter takes this approach as its point of departure. The aim is, on the basis of a comparative analysis of EU states, to determine if the citizens’ initiative is likely to have any effect in EU policy-­making. We do this by analysing the experience with the citizens’ initiative in individual member states. Of the countries in the EU, there are eleven countries that allow citizens to propose legislation. In four of these – France (since 20084), Lithuania, Latvia and Hungary – the citizens can propose a referendum on a proposed bill. In Austria, Italy, the Netherlands, Poland and Spain, citizens can only propose legislation, which has to be enacted by the respective parliaments. The latter system also exists in twelve of the sixteen German Länder.5 In many cases these institutions of semi-­ direct democracy were ostensibly inspired by American state constitutions. Yet it should not be overlooked that many of the countries had themselves discussed the introduction of the citizens’ initiative many years ago. Thus in Poland, in 1930, a constitutional amendment proposing the introduction of the right of legislative initiative (subject to signatures from 100,000 Polish citizens) was proposed, but was unsuccessful.6 Overall, the countries that became democracies after the fall of communism are more likely to have provisions for citizen initiated legislation. Six out of the ten post-­communist EU countries have provisions for citizens’ initiatives. Conversely, only 29 per cent – or five Jurgen Meyer (eds), Transnational Democracy in the Making, Amsterdam, IRI-­ Europe, pp. 11–14.  3 Milton Friedman (1966) ‘The Methodology of Positive Economics’, in Milton Friedman, Essays in Positive Economics, Chicago, University of Chicago Press, p. 5.  4 Patrick Roger (2008) ‘La revision constitutionelle a franchi une première haie’, Le Monde, 5 June, A4.  5 Theo Schiller (2007) ‘Direkte Demokratie auf Bundesänder-­und Kommunalebene’, in Markus Freitag and Uwe Wagschal (eds), Direkte Demokratie: Bestandaufnahmen und Wirkungen im Internationalen Vergleich, Berlin, Lit, p. 115.  6 J. Litawski (1932) Bezpos´rednie ustawodawstwo ludowe, Kraków, Drukarnia Ericha Frommera, p. 102.



The citizens’ legislative initiative59

Table 3.1:  Citizens’ initiatives and relevant articles regulating the right to initiate legislation in the constitutions of EU member states (countries with provisions for citizen initiated legislation in bold) Country Austria Belgium Cyprus Denmark Finland France Germany Greece Ireland Italy Luxembourg Malta NL Portugal Spain Sweden UK Bulgaria Czech Rep Estonia Hungary Latvia Lithuania Poland Romania Slovakia Slovenia

Citizens’ initiative Y N N N N N N N N Y N N Y N Y N N N N N Y Y Y Y Y N Y

Article in constitution Art. 41 Art. 61 Art. 80 Art. 41 Art. 70 Art. 12* Art. 76 Art. 73 Art. 20 Art. 71 Art. 47 Art. 73 Art. 82 Art. 167 Art. 87 Art. 7 N/A Art. 87 Art. 41 Art. 103 Arts 19, 26* Arts 72, 74* Art. 9* Art. 118 Art. 70 Art. 88 Art. 87

* A referendum has to be held subsequent to the enactment of the initiative. Source: http://confinder.richmond.edu

out of seventeen countries – in Western Europe have provisions for this device. Statistically speaking there is a.45 Phi Correlation between post-­ communist democracies and the provisions for citizen initiated legislation (significant at 0.018), perhaps indicating a distrust in representative institutions at the time of the establishment of democracy after communist rule. But the norm is that only elected representatives, i.e. typically members of national or regional parliaments, can initiate legislation. Citizen involvement is foreign to most European countries, and in many ways the role of the citizen is limited to participation in local, parliamentary and presidential elections, and the odd referendum once or twice every decade.

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A conceptual understanding of the citizens’ initiative It is useful to consider the role performed by the initiative device. According to David Easton’s much-­cited model7 – especially as developed by political scientists like Almond, Dalton, Powell and Strøm8 – the political system can be seen as an input-­output model, in which groups in the surrounding environment articulate demands, which are channelled into the political system by aggregators, and transformed into policies (outputs). In the traditional structural-­functional model, the role (or function) of articulators was performed by civic groups and trade unions.9 The role of aggregators was performed by political parties that ‘aggregated’10 the views ‘articulated’ by organisations and civic groups. By performing this function, the political parties ensured that concerns and demands from the environment were translated into policies.11 The citizens’ initiative can thus be seen as an alternative aggregator, as well as an alternative articulator, i.e. an alternative mechanism for channelling demands (i.e. inputs) into the system, but also as a mechanism for raising (i.e. articulating) demands. The effect of the citizens’ initiative There has been considerable support for engaging citizens in initiating legislation. The OECD, for example, argued in a policy paper that governments should ‘tap [into] new sources of policy-­relevant ideas, information and resources when making decisions’.12 Yet, tellingly, they did not provide a mechanism for doing so. The citizens’ initiative may be seen as a mechanism for increasing the input from citizens. But would it work? Indeed, has a similar mechanism worked elsewhere in Europe, i.e. at the level of member states? Proponents of direct democracy are prone to outline a number of positive policy benefits of the introduction of mechanisms for direct

David Easton (1965) A Framework for Political Analysis, Eaglewood Cliffs, NJ, Prentice Hall, p. 3.  8 G.A. Almond, R.J. Dalton, G.B. Powell and K. Strøm (2006) Comparative Politics Today: A World View, New York, Pearson Longman, p. 67.  9 Almond et al., Comparative Politics Today, p. 67. 10 Almond et al., Comparative Politics Today, p. 81. 11 Almond et al., Comparative Politics Today, p. 67. 12 OECD (2001) ‘Engaging Citizens in Policy-­Making: Information, Consultation and Public Participation’, PUMA Policy Brief No. 10, p. 1.  7



The citizens’ legislative initiative61

democracy.13 Yet, to determine the direct effect of political institutions such as electoral systems, provisions for referendums, or in this case the citizens’ initiative, is a difficult undertaking. Even James March and Johan P. Olsen – the doyens of the new institutionalism – have noted that ‘the causal relation between institutional arrangements and substantive policy is complex’.14 Perhaps it is for this reason that there are very few studies that directly look at the relationship between institutions and policy outputs.15 Given that political science is struggling to find a direct causal connection between institutions and policies, it would be optimistic to expect direct revolutionary changes as the result of the introduction of the citizens’ initiative. What we can do, however, is to look at the individual countries that provide the citizens with opportunities for petitioning legislation through citizens’ legislative initiatives. Surveying the limited literature on the effects of citizens’ ­legislative ­initiatives, we find that observers have been rather sceptical, and – as I shall suggest – perhaps a bit too pessimistic as regards their efficiency. Before reaching a verdict it is useful to look at single country studies. Austria Country experts suggest that citizens’ initiatives have been used with ‘diminishing effects’, since ‘increasingly, opposition parties have been (ab)using them [Volksbegehren] for their own purposes’.16 Still, thirty-­ three of the 213 petitions put before the Nationalrat (Parliament) have been enacted, and six of these have been enacted in the form in which they were presented by the initiators.17 See generally: Matsusaka (2004), For the Many or the Few, Chicago: University of Chicago Press. 14 J. March and J.P. Olsen (2006) ‘Elaborating the “New Institutionalism”’, in R.A.W. Rhodes, S. Binder and B. Rockman (eds), The Oxford Handbook of Political Institutions, Oxford, Oxford University Press, p. 8. 15 Rein Taagepera and Matt Qvortrup (2012) ‘Who Gets What, When, How – Through Which Electoral System?’, European Political Science, Vol. 11, No. 2, 244–58. 16 Anton Pelinka and Sylvia Greiderer (1996) ‘Austria: The Referendum as an Instrument of Internationalisation’, in Michael Gallagher and Pier Vincenzo Uleri (eds), The Referendum Experience in Europe, London, Macmillan, p. 21. 17 F. Rehmet (2003) ‘Volkspetitionen – Praxis und Wirkungen. Das Beispiel der unverbindlichen “Volksbegehren” in Österreich’, Mehr Demokratie eV, Diskussionspapiere und Untersuchungen, No. 16. 13

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Table 3.2:  Signatures required for citizens’ initiatives in EU member states at national level Country Austria France* Hungary Italy Latvia Lithuania Netherlands Poland Romania Slovakia Slovenia Spain

Population (millions)

Signatures required

Type of initiative

8.1 59.6 10.2 57.6 2.3 3.5 16.3 38.6 22.3 5.3 1.9 39.4

100,000 4,100,000 50,000 50,000 230,000 50,000 40,000 100,000 250,000 350,000 5,000 500,000

A B B A B A A A A B B A

* According to Art. 11 of the French Constitution, a citizen initiated referendum must be held if supported by both one-­tenth of the voters and one-­fifth of the members of the legislature. Key: A: citizens’ initiative B: popular citizens’ initiative with subsequent referendum. Sources: National Constitutions and IRI Europe. I am grateful to Carsten Berg for information and advice when compiling this data.

The Netherlands There has been a long debate about the introduction of mechanisms of direct democracy in the Netherlands,18 one of the results of which was the introduction in 2006 of the Burgerinitiatief which allows citizens to propose legislation. 40,000 citizens’ signatures are required to initiate legislation. There have been 11 attempts at such an initiative, of which six were declared inadmissible, as the Tweede Kamer (the lower house of the Dutch Parliament), had discussed the issue within two years prior to the initiative. Five initiatives were successful, i.e. resulted in a parliamentary debate. These include an initiative in February 2007 by Milieudefensie (an  environmentalist organisation) fighting for sustainable cattle breeding.19 In 2010 the group ‘Free Will’ was successful in addressing the issue of the legalisation on hospice provision (active euthanasia); in 2011 an action group ‘Platform Raise Old Age Pensions’ had enough signatures to get a debate in the Second Chamber on this Joop van Holsteyn (1996) ‘The Netherlands: National Debates and Local Experience’, in Michael Gallagher and Pier Vincenzo Uleri (eds), The Referendum Experience in Europe, London, Macmillan, pp. 126–38. 19 See generally: Judith McCarthy-­ Groen (2006) Het burgerinitiatief: een verkennend onderzoek naar een 8-­ tal burgerinitiatieven in enkele Nederlandse gemeenten, Heerlen, Open Universiteit Nederland. 18



The citizens’ legislative initiative63

issue; in 2011 an interest group for people suffering from Lyme disease asked for the establishment of an expertise centre for this disease; and in July 2001,20 a citizens’ initiative sponsored by the activist Henk Bres aimed at banning the controversial Martijn organisation (which has been accused of promoting paedophilia). The initiative succeeded in gathering the required 40,000 signatures within fifteen days. The debate on the proposal was scheduled for August 2011.21 None of these initiatives have at the time of writing resulted in legislation. Spain In Spain there are provisions for citizens’ initiatives at both the central and the regional level. At the regional (auonomias) level there were 172 popular initiatives registered up to 30 April 2007,22 of which thirty-­ nine have been voted on. Fifteen led to legislation.23 At the national level there have been nine initiatives that have been formally debated in the Plenary Session of Congress. To date, the only popular initiative approved by the national Parliament was related to the claim of community debts, promoted by the Federation of Professional Land Agents.24 Poland The mechanism has been slightly more successful in Poland. As of 2005, the procedure had been used fifty-­five times. The ‘legislative procedures initiated by people have resulted in adopting statutes in seven cases’25 and resulted in six instances of primary legislation, mainly in areas of occupational health and the environment. In Poland the citizens’ initiative has mostly been used to enact legislation that none of the parties for different reasons were willing to sponsor. Thus a law on the regulation Joop van Holsteyn, University of Leiden, personal communication, 14 May 2011. 21 Joop van Holsteyn, University of Leiden, personal communication, 13 July 2011. 22 See generally: Victor Cuesta Lopez (2008) Participación directa e iniciativa legislativa del ciudadano en democracia constitucional, Madrid, Civitas. 23 I am grateful for comments by Luis Bouza Garcia, The Robert Gordon University, Aberdeen, on this section. 24 F. Astarloa-­Villena (2009) ‘La iniciativa legislativa popular en España’, Teoría y Realidad Constitucional, No. 10–11, 273. 25 Anna Rytel-­ Warzocha (2011) ‘Popular Initiatives in Poland: Citizens’ Empowerment or Keeping Up Appearances?’, in Theo Schiller and Maija Setälä (eds), Citizens’ Initiatives in Europe. Procedures and Consequences of Agenda-­ Setting by Citizens, Basingstoke, Palgrave, p. 9. 20

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of pharmaceutical products in 2003 had been unlikely to be enacted had it not been for the pressure generated by the initiative process.26 Italy A total of 213 iniziative di legge were proposed from 1948–2005, and of these twenty-­nine (13 per cent) resulted in legislation.27 It is not, therefore, entirely accurate to conclude, as Uleri did in a study from 1996, that ‘there has been very limited use of this institution, which has had little significance’.28 The signature requirement is 50,000 voters. Germany Of 103 valid Volksinitiativen that have been proposed in the German Länder, thirty-­one have been (at least partly) accepted by parliaments.29 Most of the enactments until 2006 (34 per cent) concerned education and culture; the second highest number (28 per cent) concerned democratic reforms.30 There are some indications that the use of the mechanism has led to more political engagement at the Land level, but most of the evidence is anecdotal.31 The signature requirement ranges between two per cent of the voters in Bremen to signatures from 50,000 voters in Rhineland-­Palatine.32 Slovenia 5,000 people can propose a law (Art. 58), if they can gather the signatures within sixty days. They have done so rarely.33 According to the search tool of the Slovenian National Assembly, out of the 6,245 Rytel-­Warzocha, ‘Popular Initiatives in Poland’, p. 6. www.democracy-­international.org/italian-­initiative.html (accessed 20 May 2011). 28 Pier Vincenzo Uleri (1996) ‘Italy: Referendums and Initiatives From the Origins to the Crisis of a Democratic Regime’, in Michael Gallagher and Pier Vincenzo Uleri (eds), The Referendum Experience in Europe, London, Macmillan, p. 107. 29 Theo Schiller (2007) ‘Direkte Demokratie auf Bundesänder-­und Kommunalebene’, in Markus Freitag and Uwe Wagschal (eds), Direkte Demokratie: Bestandaufnahmen und Wirkungen im Internationalen Vergleich, Berlin, Lit, p. 112. 30 Schiller, ‘Direkte Demokratie auf Bundesänder-­und Kommunalebene’, p. 115. 31 I am grateful to Carsten Berg for information and advice on this section. 32 www.mehr-­demokratie.de (accessed 15 April 2011). 33 I am grateful to Dr Tomaž Deželan from the University of Ljubljana for this information and other insights into Slovenian politics. 26 27



The citizens’ legislative initiative65

adopted laws and proposed laws in Parlament Slovenije only three cases were citizens’ initiatives.34 Assessment of the citizens’ legislative initiative In many ways, the citizens’ initiative is – at least on paper – a weak weapon. The problem with the device is that Parliament is in no way legally obliged to take action, and the political pressure is often not strong enough for a group to apply pressure on the elected representatives. If Parliament – or even just a majority thereof – has a stated interest in a project, even an unpopular one, the citizens’ initiative is of little use. This was obvious in Austria in 1982, when the Nationalrat ‘ignored a petition signed by over 1.3 million electors against construction of an additional United Nations Conference Centre, and so took no heed of the demand not to construct it’.35 Yet other proposals have arguably had an impact: ‘the 353,906 signatures to a 1985 petition opposing the construction of a hydro-­power dam on the Danube certainly played a part in persuading the government to scrap the plan’.36 So is it a fatal limitation that voters cannot force parliaments to act? Surely, or so one would think, it would be better to have the actual initiative, e.g. as in Hungary, Latvia, Lithuania and, although in more limited circumstances, France.37 Yet the evidence seems to suggest otherwise. If we measure success by statutes enacted – not an unreasonable requirement – we find that there are many more examples of citizens’ legislative initiatives resulting in primary legislation than there are citizen initiated referendums resulting in the same. Hungary, Latvia and Lithuania are the only European countries in which the citizen initiated referendums have been successfully employed. But the record is modest at best. Indeed only three laws have been enacted through initiatives and referendums in the three countries, and of these only one (namely in the referendum on direct election to the presidency in 1989 in Hungary) was fully implemented. To be sure, the citizen initiated referendum can send a strong signal to the powers that be, as was the case with the Hungarian Fidesz (then opposition Tomaž Deželan, Maja Sever and Aleks Jakulin (2009) ‘Analiza kohezijskih vzorcev Državnega zbora Republike Slovenije v obdobju od leta 1994 do leta 2008. Dinamika s potencialom krepitve parlamentarne dimenzije Evropske unije?’, Teor. praksa, Vol. 46, No. 1–2, 161–78. 35 Pelinka and Greiderer ‘Austria: The Referendum as an Instrument of Internationalisation’, p. 21. 36 www.bbc.co.uk/news/world-­europe-­11791272 (accessed 1 May 2011). 37 Roger, ‘La revision constitutionnelle a franchi une première haie’, p. 4. 34

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Box 5: Citizens’ initiative on female representation in Poland, 2010 The idea that political parties should devote half of all places on the electoral lists for the national and European parliaments and local councils to women was conceived during the Polish Women Congress in Warsaw in June 2009. Women currently make up 20 per cent of Polish Members of Parliament and just 8 per cent of Polish senators. The idea of parity is supported, not only by women or feminist activists. Among those who spoke in its favour were Oscar-­ winning director Andrzej Wajda, the government’s economic advisor Michal Boni and the President of the European Parliament Jerzy Buzek. President Lech Kaczynski announced he would sign the bill if it passed through both chambers of Parliament. Proponents of the initiative collected 150,000 signatures in support. Opponents of the bill, including the government’s plenipotentiary for equal status, claim that imposing gender quotas in such an artificial way is offensive to women and ineffective. Others say that women should not be given power they are not yet ready to handle. The proposal came to nothing. Yet it raised an issue that would probably not otherwise have been discussed. Source: Polskie Radio, www.thenews.pl/national/artykul125873_citizens-­initiative-­on-­ female-­representation.html (accessed 2 April 2011)

party’s) sponsored referendum on the abolition of tuition fees and fees for primary health care in 2008. The referendum passed by 80 per cent – but the government said that they were unable to find funds to pay for the services.38 The same is true for Lithuania and Latvia. Although there have been, respectively, three and two citizen initiated referendums since 1990, none of these have passed. This, admittedly, is partly due to the stipulation that turnout must be at least 50 per cent for the result to stand. The referendum on ‘funds from privatisation’ (in Lithuania in 1996) thus gained the support of 52 per cent of the voters, but failed as the turnout was only 38 per cent. Yet turnout was not to blame in the other two referendums in this country, i.e. on ‘illegal privatisation’ (1994) and on the Ignalina Power Plant (2008), which failed to win majority support despite dire warnings from politicians about the consequences of closing the plant.39 The record is equally unimpressive in Latvia, although the referendum on the Security Law (2007) is worth nothing. This followed the decision www.eurofound.europa.eu (accessed 12 November 2012). See generally: http://diepresse.com/home/wirtschaft/international/421400/Litauen_ Gehen-­ohne-­Atom-­die-­Lichter-­aus?_vl_backlink5/home/index.do (accessed 25 April 2011).

38 39



The citizens’ legislative initiative67

by the President to block Parliament’s security law, which would have given the law-­makers controversial access to otherwise classified security information. Having been blocked by President Vaira Vike-­Frieberga, citizens gathered signatures for a referendum, and succeeded in getting the support of the required 230,000 citizens. Although the referendum won, the outcome was nullified as it did not meet the required 50 per cent turnout requirement. However, despite legally failing, Parliament withdrew the law. In Lithuania and Latvia, as in Hungary, and as in citizens’ initiated referendums in Uruguay40 and New Zealand,41 the provision has been used to propose populist measures, such as the proposal that a certain percentage of the social security spending should constitute at least half of the national budget in both Uruguay and Lithuania and a freezing of pensions in Latvia (2008). Such proposals – especially when they have not received a ringing endorsement – are comparatively easy to ignore, and governments have frequently done so, as, indeed, they did in Hungary on the issues of the law on double citizenship in 2004. The situation is generally rather different with citizens’ legislative initiatives. Given that the citizens’ legislative initiative has actually led to legislation in all the countries that allow citizens to propose legislation it is difficult to argue that the more extensive and (on paper) more radical provision, i.e. citizen initiated referendums, would be more effective. The citizens’ initiative, perhaps precisely because it needs to be ratified by Parliament, is less likely to be used to propose outlandish and unrealistic proposals. Generally speaking, citizens’ legislative initiatives have been used to introduce – and in some cases enact – legislation that political parties did not wish to propose. This was certainly true in Poland, where the bills adopted have included a 1999 law about retaining national control over strategic resources.42 Further, a committee created by the ‘Trade Union of Polish Teachers (ZNP) prepared a draft law which aimed at changing rules for determining salaries for teachers by introducing a centralized wage system. The initiative was successful as the citizens’ proposal was adopted by the ­parliament after only four months from the first reading of the bill.’43 M. Qvortrup (1997) ‘Uruguay’s Constitutional Referendum’, Electoral Studies, Vol. 16, No. 4, 549. 41 M. Qvortrup (2008) ‘Citizen Initiated Referendums (CIR) in New Zealand: A Comparative Appraisal’, Representation, Vol. 44, No. 1, 69–78. 42 Anna Rytel (2006) ‘The Popular Initiative in Poland’, Institute of Constitutional Law and Political Institutions, University of Gdansk, 8 May. 43 Rytel-­Warzocha, ‘Popular Initiatives in Poland’, p. 10. 40

 1 10  4 12 11 12  5  5 – 10  9 79

1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 Total  1

 1  4  3 27

 6  6 61

 4  3 24

 1  1  3  3  3  5

1 2 3

Handed to the Rejected at Parliament** first reading

 1  3  3  3  4  5

Signatures submitted

 1  7  3 11  9  9  4  5

Proposal formally correct or successfully reformulated*

10

 2  1  2  1  4

Procedure ended due to delays***

7

1

1 2 1

1 1

Source: Anna Rytel-­Warzocha, personal communication, May 2011

2 1 4

1

Enacted by Initiatives still in the Parliament the committees Dec. 2010

* Eighteen initiatives were rejected because the proposal was formally incorrect and the required changes were not made. ** In three cases the signatures were submitted but they were declared as non-­valid. *** End of the following parliamentary terms of office.

Initiatives launched

Year

Table 3.3:  Initiatives and treatment in the Polish Parliament (1999–2009)



The citizens’ legislative initiative69

The same types of mundane issues have been the subject of the citizens’ initiatives in Italy. Here an iniziative di legge populare on the strengthening of children’s rights (1983), the retirement age (1988) and regulation of organ transplants (1999) are but some of the examples of successful citizens’ initiatives.44 In general, it seems that laws which have resulted from the process have frequently concerned relatively uncontroversial issues, as in the Austrian citizens’ initiative on smaller class sizes (Volksbegehren zur Senkung der Klassenschülerzahl) in 198945 – though it should be noted that legislation to introduce the 40-­ hour working week was introduced not through the initiative of Parliament but as a result of a citizens’ initiative in 1969, namely, the Schrittweise Einführung der 40-­Stunden-­Woche – literally ‘the gradual introduction of the 40-­hour week’. The word ‘gradual’ (Schrittweise) is not, it seems, accidental! The Spanish experience points towards a greater use of citizens’ legislative initiatives in issues concerning environmental issues and industrial relations. This is particularly true at the regional level. Thus, almost half of the initiatives adopted (seven out of fifteen) were related to environmental protection. The Parliament of the Canary Islands approved three laws originating from citizens’ initiatives, which all concerned different aspects of the protection of different natural areas of the islands. The remaining initiatives related to environmental protection were approved by the legislative assemblies of Aragón, Catalonia, Galicia and the Balearic Islands.46 We might hypothesise that the lack of a genuine Green Party in both Spain and Austria meant that demand for environmental legislation did not go through the party political channels and that the citizens’ initiative performed the function of an alternative aggregator that swept up demands articulated by the citizens. The same pattern might explain why industrial relations legislation was demanded and passed.47 Slovenia is the only country where the citizens’ legislative initiative has been used to enact more substantial legislation. Thus in 2005 the Student Association of Slovenia, Študentska organizacija Slovenije, was able to ensure an amendment of the Personal Income Tax Act. The amendment that was successfully adopted was about the taxation of www.c2d.ch (accessed 25 April 2001). www.bmi.gv.at/cms/BMI_wahlen/volksbegehren/Alle_Volksbegehren.aspx (accessed 25 April 2001). 46 V. Cuesta (2008) Participación directa e iniciativa legislativa del ciudadano en democracia constitucional, Madrid, Ed. Thomson-­Civitas, p. 1. 47 Astarloa-­Villena, ‘La iniciativa legislativa popular en España’, 273–321. 44 45

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student (and secondary school pupil) incomes, in other words, a technical and ideologically uncontroversial change, which fits the general picture that the citizens’ legislative initiative is used to enact uncontroversial legislation. Does this mean that we should endorse the citizens’ legislative initiative? There have been a fair number of warnings against the introduction of such measures. Stephen Loe Strachey, one of the proponents of direct democracy in the United Kingdom, criticised the initiative proper: Under the initiative, you do not get the committee stage for legislation. The stage under which trained advocates, critics and lawyers debate the clauses of the Bill and render it workable in practice as well as sound in theory. The initiative is an encouragement to crude legislative schemes . . . The fact is the initiative, though it may very well suit a small community . . . does not suit a great and complicated modern community with a vast number of laws already on the statute book.48

This objection to citizen initiated referendums – which perhaps paints too rosy a picture of the power and wisdom of parliamentary c­ ommittees49 – does not, however, cut a lot of proverbial ice with citizens’ initiatives. For this device – as opposed to citizen initiated referendums – does indeed allow parliamentary committees to scrutinise the proposals and thus make them ‘workable in practice’. The citizens’ initiative, while not a revolutionary mechanism, has thus been instrumental in providing an outlet for pent-­up grievances, as well as being a mechanism which has allowed citizens to get legislation on the statute book that Parliament would not otherwise have enacted. All this could, as I have suggested elsewhere, be analysed using a setter model. The citizens’ initiative is successful if the proposals fall within the ‘win-­set’ of both Parliament and initiators. The reason why the citizen initiated referendums fail is because they result in outcomes that fall outside the win-­set of the legislature. But a more formal analysis of this type is beyond the scope of this chapter. Of course, it is methodologically unsound to simply extrapolate from these experiences at the national level to the qualitatively different set of circumstances at the EU level. The lack of a genuine EU-­wide political debate, the linguistic barriers and – at least for the time being – ­different J. St. Loe Strachey (1924) The Referendum: A Handbook in the Poll of the People, The Referendum and the Democratic Right to Veto, London, Fischer, p. 29. 49 Nelson Polsby (1975) ‘Legislatures’, in Fred Greenstein and Nelson Polsby (eds), Handbook of Political Science Vol. 5: Government Institutions and Processes, Reading, MA, Addison-­Wesley, pp. 257–319. 48



The citizens’ legislative initiative71

political cultures mean that the factors that have generated citizens’ legislative initiatives in single countries are unlikely – under the present circumstances – to be replicated at the pan-­ European level. Indeed, the fact that the aforementioned attempt by the Austrian and German Social Democrats originated in two countries using the same language, and was uncoordinated with like-­minded parties in other EU countries, might be an indication that the citizens’ initiative may fare less well when introduced at the supranational level.50 But the fact that the citizens’ initiatives – contrary to expectations – have been successful in getting legislation enacted perhaps suggests that we should refrain from dismissing the device too quickly. Conclusion This chapter has found evidence to suggest that the citizens’ initiative, though on paper a weak mechanism, has had direct effects and has led to the enactment of primary legislation. Somewhat counter-­intuitively, the citizens’ initiative has, in fact, been more successful than citizen initiated referendums – such as in Hungary, Latvia and Lithuania. There are many examples – dozens, in fact, of citizens’ initiatives that have resulted in primary legislation in Poland, Italy, Austria and Spain as well as at the Land level in Germany. More than forty acts have been enacted as a result of citizens’ initiatives. Conversely, there are only a couple of citizen initiated referendums that have resulted in primary legislation, both in Hungary. The fact that citizens have proposed realistic and constructive – as well as popular – proposals means that the citizens’ initiative has arguably had more success than more radical provisions. Whether the same pattern can be expected at the EU level will depend upon the regulation of the device, yet there is nothing that suggests that the citizens’ legislative initiative will be ineffectual. Sceptics might still question the usefulness of this device. The citizens’ legislative initiative is clearly not a panacea, however, nor has it had negative consequences. The mechanism has, in it’s own unrevolutionary way, given citizens a voice where otherwise they would have had none. Sometimes good things come in small packages.

I owe this insight to Dr Charlotte O’Brian, University of York.

50

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Appendix A: In which countries are there provisions for citizens’ initiatives? Another question is whether there is a pattern of where citizens’ initiative occurs. Based on so-­called logistic regression analysis there is statistical evidence to suggest that provisions for citizens’ initiatives are more common in countries with fewer parties. Measuring the number of political parties can be a relatively subjective endeavour and there has been a considerable debate over which parties to count. Following standard convention, this book uses the Laakso-­Taagepera Index51 and then correlates this figure with a dichotomous variable (1 5 provisions for citizens’ initiatives; 0 5 no provisions for citizens’ initiatives). The hypothesis is that the lower the Effective Number of (Parliamentary) Parties, the lower the probability that the country will have – statistically speaking – provisions for the citizens’ initiative. We do the same with the Pedersen Index, based on the hypothesis that more electoral volatility is likely to have spurred the introduction of the citizens’ initiative. Of course, it is equally possible to hypothesise that the device is mainly a characteristic of newly democratised countries; i.e. that the citizens’ initiative was introduced at the time of the fall of communism as a part of the enthusiasm for more democratic involvement which characterised the 1989 revolutions. Both these hypotheses can be tested using logistic regression analysis, using the data in Table 3.4. A logistic regression analysis allows us to measure the probability of a relationship between the existence of a phenomenon, in this case the citizens’ initiative, and a number of other factors. Based on figures in Table 3.4:  Factors contributing to provisions for citizens’ initiatives Variable

Model 1

Model 2

Post-­communist

1.535* (1.53)

.495* (.278) 0 (0)

Pedersen Effective number of parties Constant

−1.5* (.683) 3.512* (1.898) N: 36 Pseudo-­R: 1.0

.388* (.187) N: 36 r2: 14

Markku Laakso and Rein Taagepera (1979) ‘“Effective” Number of Parties: A Measure with Application to West Europe’, Comparative Political Studies, Vol. 12, No. 1, 3–27.

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table  3.4, we can conclude that there is a statistically significant relationship between the number of parties and the provisions for citizens’ initiatives. The table outlines the results of the logistic regression. While this model is not the final word on the matter – statistical models never are! – we can conclude that the model is significant: Chi-­square (6, N 5 29) 5 64.32), p , .002. This indicates that the model was able to distinguish between countries that have provisions for citizens’ initiatives and countries that do not. However, of the variables tested, only the Effective number of parties and Post-­communism were statistically 1 (across all models p , 0.1). There is no indication, however, that the volatility of the party systems made a statistical contribution. Table 3.5:  Number of eligible voters necessary to trigger a legislative initiative for each EU country Country Germany Italy UK France Spain Poland Romania Netherlands Greece Portugal Czech Republic Hungary Belgium Bulgaria Sweden Austria Finland Slovakia Denmark Ireland Lithuania Slovenia Latvia Estonia Cyprus Malta Luxembourg TOTAL

Population

No of voters

0.1% of eligible voters

82,536,680 57,844,017 59,862,820 59,630,121 40,409,330 38,218,531 22,276,056 16,192,572 10,554,404 10,407,465 10,203,269 10,142,362 10,355,844 7,322,858 8,940,788 8,067,289 5,206,295 5,379,161 5,383,507 3,963,636 3,462,553 1,995,033 2,331,480 1,356,045 715,137 394,641 448,300 484,600,194

61,682,394 49,854,299 44,157,400 41,518,582 34,706,044 29,986,109 18,449,676 12,168,878 9,909,955 8,821,456 8,2,83,485 8,046,247 7,552,240 6,691,080 6,827,870 6,049,129 4,227,987 4,210,463 4,012,663 3,131,540 2,654,311 1,628,918 1,397,736 873,809 483,311 304,283 214,318 377,844,183

61,682 49,854 44,157 41,519 34,706 29,986 18,449 12,169 9,910 8,821 8,283 8,046 7,552 6,691 6,828 6,049 4,228 4,210 4,013 3,132 2,654 1,629 1,398 874 483 304 214 377,844

Source: ECI-­Handbook, see: www.iri-­europe.org/fileadmin/user_upload/media/IRI-­ Handbook2008.pdf

4

The recall of elected politicians

A comparative analysis of the recall of elected officials

On 3 September 2011 this story appeared in a local paper in the small town of Sheboygan in Wisconsin. It is worth quoting it verbatim: A Sheboygan City Council member has started a campaign to recall embattled Mayor Bob Ryan. Kevin MatiChek, the Alderman who started the petition, said a recall would be cheaper and quicker than the legal process the Council had approved earlier this month. Seven formal complaints have been filed against the mayor, after he went on a weekend drinking binge in nearby Elkhart Lake in July. It was Ryan’s third major alcohol-­related episode since becoming Sheboygan’s mayor in 2009. The City Council has voted to hire an attorney to prosecute Ryan in a proceeding similar to a trial – and he could be removed if convicted. The Council has allocated $10,000 in legal expenses – and it was asked to approve $50,000. Alderman MatiChek said his recall petition would not cost the city much at all. Just over 4,100 signatures would be needed to force a recall election. If it’s held, MatiChek said it could take place next February when the city is already scheduled to have primaries for other local offices. Ryan has said he’s getting more help for his alcoholism – and he refuses to resign as Sheboygan’s mayor. Alderman MatiChek said a recall would, “save the integrity of the mayor’s office for our great city.” He also said he would run against Mayor Ryan if a recall vote takes place.1

Mayor Ryan was recalled. But the example is not exceptional, though it may sound radical to many. The recall (the removal of elected representatives following a special election) has received increased attention in recent years. From the 2003 recall of the Governor of California, through failed recall attempts in Romania and Venezuela, the mechanism has been championed by reformers as a means of holding elected politicians to account. Yet no comparative study has been undertaken http://whbl.com/news/articles/2011/aug/22/process-­to-­recall-­sheboygan-­mayor-­ bob-­ryan-­underway/ (accessed 3 September 2011).

 1



The recall of elected politicians75

to empirically test the effect of the provision. Combining qualitative information with quantitative data, this chapter analyses if the recall has served its function of creating more responsive representatives. There is some (limited) evidence that the recall has improved trust in government in the USA and to a degree in British Columbia. But overall the recall has paradoxically tended to strengthen politicians who win recall elections. The object of this chapter is to determine – using a comparative approach – if the introduction of the recall has had the intended effect of increasing accountability and responsiveness of the elected representatives, without being abused by opponents. The recall is here defined as a ‘procedure for submitting to popular vote the removal of officials from office before the end of their term’.2 The rationale of the recall is that it ‘allows a certain minimum number of voters who are dissatisfied with their representatives to ask for a special election in which they are removed’.3 The contention by proponents of the recall is that it ‘keeps officeholders . . . more responsive and accountable’.4 Apart from a couple of case studies of the American experience – ­especially a landmark study by Zimmerman,5 very few studies of the recall have been carried out, and there is a dearth of comparative literature on the subject. This lack of evidence on the effects of the recall is regrettable as the institution has received increased attention in the United Kingdom. All the major political parties called for the introduction of the recall before the General Election in 2010, and the then Prime Minister Gordon Brown explicitly proposed to ‘give people the power to sack corrupt politicians’.6 And after the election Deputy Prime Minister Nick Clegg (Liberal Democrat) promised that the Conservative-­Liberal Democrat coalition government would ‘bring forward [a] proposal in legislation next year’ that would enable constituents to be ‘able to trigger a process

J. MacGregor Burns, J.W. Peltason, T. Cronin and D. Magleby (2000) Government by the People, New York, Prentice Hall, p. 27.  3 Arend Lijphart (1984) Democracies: Patterns of Majoritarian and Consensus Government in Twenty-­ One Countries, New Haven, Yale University Press, p. 200.  4 Cronin Direct Democracy, p. 145.  5 J.F. Zimmerman (1997) The Recall: Tribunal of the People, New York, Praeger Publishers.  6 Gordon Brown (2009) ‘Give People Power to Sack Corrupt Politicians’ Independent, 27 May, A4.  2

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of recall by a petition from 10 per cent of constituents’.7 This interest in the recall makes a comparative analysis of the mechanism timely, even if the proposed mechanism will only be available in circumstances ‘where [it is] proved that a Member of Parliament was guilty of serious wrongdoing’.8 Testing the efficiency of the recall: methodology Testing the proposition that the recall leads to more accountability and more responsive representatives is a challenging task. The proposition hinges on the premise that institutions make a difference and that institutions – rather than social and cultural factors – shape political behaviour. It is acknowledged that ‘the causal relation between institutional arrangements and substantive policy is complex’.9 Yet while the complexities are well documented, there has been an increased consensus in recent years that the choice of political institutions can play an important role for policy outcomes.10 Political scientists have increasingly focused on the effects that political institutions (especially electoral systems) can have on policy outcomes. A prominent strand in this research has focused on the effect of institutions on the health of democracies. At a time when some countries have suffered declining trust in the political class and in the political system, researchers have sought to show that the presence or introduction of particular institutions can increase participation and trust (see next chapter). For example, Karp and Banducci11 found a correlation between participation and proportional representation (PR). Not limited to electoral systems, other studies have shown that referendums can increase trust in the system. Thus, as we have seen above in the section on the citizens’ initiative in New Zealand, trust in the political system increased in the decade after the introduction of citizen initiated referendums (see Chapter 2 above). One of the problems with previous research into the effects of the recall is that it has been based on single country case studies. This House of Commons Debates, 27 July 2010, Col. 853. House of Commons Debates, 27 July 2010, Col. 853.  9 March and Olsen ‘Elaborating the “New Institutionalism”’. 10 R.K. Weaver and B.A. Rockman (1993) Do Institutions Matter? Government Capabilities in the United States and Abroad, Washington DC, The Brookings Institution. 11 Jeffrey A. Karp and Susan A. Banducci (2008) ‘Political Efficacy and Participation in Twenty-­Seven Democracies: How Electoral Systems Shape Political Behaviour’, British Journal of Political Science, Vol. 38, No. 4, 311–34.  7  8



The recall of elected politicians77

approach is not problematic in itself: important insights can be gained from ‘thick description’.12 However, if a single case is not compared with other instances, nothing is more likely than a wrong empirical law emerging instead of a right one. Of course, the comparative method itself does not guarantee against mistakes. To begin with, it is necessary to compare like with like. Comparative politics is about the development of theories explaining behaviour within groups of countries which are essentially similar. Studying the recall is no exception. Comparing countries with radically different traditions, political cultures and levels of social and economic developments (like Venezuela, American states, South Korea and Romania), we risk overlooking underlying factors. What we need to do, therefore, is to split the study into two phases: a comparison between similar countries (most similar cases approach) and – assuming we find a pattern – a second phase in which we see if this pattern fits the larger group of heterogeneous countries (least similar cases approach). The different kinds of recall: a typology Before beginning our formal analysis, it is useful to distinguish between the different forms of removing a representative. Broadly speaking we can make a distinction between two dimensions: who initiates (people or parliament)? And, on the other axis, who makes the ultimate decision (people or parliament?) The recall, as the term is most commonly used, involves the people as both initiator and decision-­maker (see Table 4.1). For the purposes of this chapter – where we are analysing the recall – we can exclude the bottom row, i.e. impeachment of sitting representatives. What we are interested in are recalls, which involve the citizens. We can distinguish between two kinds of recall, respectively direct recall (the citizens initiate and the citizens decide) and indirect recall. Direct recall The most commonly known example of the recall; the citizens initiate a recall and – provided they gather the required number of signatures – a special election will be held. The most-­cited example of this is the recall of Californian Governor Gray Davis in 2003. Another recent Clifford Geertz (1973) ‘Thick Description: Toward an Interpretive Theory of Culture’, in Clifford Geertz, The Interpretation of Cultures: Selected Essays, New York, Basic Books, pp. 3–30.

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Table 4.1:  Typology of revoking mandates of elected representatives Who Initiates? People

Who decides?

Parliament

People

Direct recall (e.g. California)

Indirect recall (e.g. Romania)

Parliament

Citizen initiated Impeachment (e.g. USA) impeachment (e.g. Uganda)

and ­much-­publicised example was the recall of several state senators in Wisconsin in 2011. A different variant of this is known from British Columbia, where a representative is automatically recalled if 40 per cent of the voters sign a petition to this effect within 60 days. The most celebrated example of this was the recall of Member of the Legislative Assembly Paul Reitsma in 1998.13 Indirect recall In an indirect recall, Parliament initiates a recall election, which is subsequently submitted to the voters. The most prominent example of this was the 2007 indirect recall election in Romania against President Traian Ba˘sescu. The recall in the United States: a most similar analysis The recall is predominately an American phenomenon. Historically the recall has played a part – albeit a minor one – in US politics since the War of Independence. The recall was included in the Articles of Confederation, which provided ‘a power reserved to each state, to recall its delegates, or any of them, at any time within the year, and to send others in their stead, for the remainder of the Year’.14 However, it was not until the end of the nineteenth century that the recall was included in state constitutions. This happened in response to demands from Populists, who fought for the introduction of initiatives, referendums and the recall to break the power of ‘political machines’. A Sunny Dhillon (2010) ‘B.C. Electoral Officer Threatened Over Recall Controversy’, Globe and Mail, 2 November. 14 Jack N. Rakove (1988) ‘The Collapse of the Articles of Confederation’, in J. Jackson Barlow, Leonard W. Levy and Ken Masugi (eds), The American Founding: Essays on the Formation of the Constitution, New York Greenwood Press, p. 225. 13



The recall of elected politicians79

typical example of these provisions is Article XXI of the Constitution of Colorado. It states (Section 1–2): Every elective public officer of the state of Colorado may be recalled from office at any time by the registered electors entitled to vote for a successor of such incumbent through the procedure and in the manner herein provided for, which procedure shall be known as the recall, and shall be in addition to and without excluding any other method of removal provided by law. The procedure hereunder to effect the recall of an elective public officer shall be as follows: A petition signed by registered electors entitled to vote for a successor of the incumbent sought to be recalled, equal in number to twenty-­five percent of the entire vote cast at the last preceding election for all candidates for the position which the incumbent sought to be recalled occupies.

It should also be noted that the recall is frequently employed at the local level. According to the National Civic League and the 2001 ICMA Municipal Form of Government Survey, 60.9 per cent of US cities have recall provisions, exceeding the percentages for initiative (57.8 per cent) and popular referendum (46.7 per cent). In the five years starting January 1996 and ending 2001, recall initiatives were filed against the mayor in 4.1 per cent of US cities, and against a council member in 5.3 per cent of US cities. Of those cities, the mayor was recalled in 17.6 per cent of the elections, and the council member in 29.2 per cent of the elections.15 It has been argued that the recall is too rarely used to have been effective, let alone to have had any impact. There has certainly not been an abundance of recall elections. Only two governors have been recalled, namely California’s Gray Davis in 2003 and Lynn J. Frazier in North Dakota in 1921. Of course, this does not mean that the recall has been rarely used. Yet the provision is scarcely more used at other levels of government. Since the device was introduced only six state representatives throughout the USA have been recalled. Three of these have been from California. Given the prominence of the latter state, it is useful to start our analysis in the Golden State. Since 1911 there have been 156 recall petitions (see Table 4.2) at the state level in California. However, only half a dozen have reached the ballot paper. One of the outcomes of recall elections has often been the paradoxical one that the incumbent has been strengthened. Indeed, Ronald Reagan, who faced three attempted recalls (in 1967, 1968 and 1972), was Richard C. Feiock and Seung-­Bum Yang (2005) ‘Factors Affecting Constitutional Choice: The Case of the Recall in Municipal Charters’, State & Local Government Review, Vol. 37, No. 1, 40–8.

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Table 4.2:  California recall attempts 1913–2009 Attempted

Official

45  1  2  1  2 25 48  1 27

Governor Lieutenant Governor Attorney General Insurance Commissioner Member of the Board of Equalization Member of the State Senate Member of the Assembly Supreme Court (entire membership) Supreme Court (individual justices)

Source: California Secretary of State, 2009 Table 4.3:  Successful recall attempts in California 1913–2009 (statewide offices) Year

Official recalled

Successor elected

1913 1914 1994 1995 2003

Senator Marshall Black (R-­Prog.) Senator Edwin E. Grant (D) Assemblyman Paul Horcher (R) Assemblywoman Doris Allen (R) Governor Gray Davis (D)

Herbert C. Jones (D-­Prohib.) Edwin L. Wolfe (R) Gary Miller (R) Scott Baugh (R) Arnold Schwarzenegger (R)

Source: California Secretary of State 2009

a­ rguably strengthened by the failure of his opponents to unseat him. The same is possibly true for San Francisco Mayor Dianne Feinstein, who was able to defeat her opponents in the recall election in 1983, and go on to win a seat in the US Senate. In both cases, the exposure to the media – and the lack of substantial allegations – was able to bolster the incumbents.16 The same is true for recalls of elected representatives. In only 8 per cent of the votes that were actually held was the sitting representative recalled (see Table 4.3). Low usage does not imply that recall has not had an impact on the behaviour of elected representatives. All other things being equal we would expect that states with recall should have higher levels of participation as low participation is typically correlated with levels of distrust in politics.17 To test this proposition we can compare the levels of participation in states with and without the recall. Correlating the average turnout in the This assessment is based on University of California, Berkeley Institute of Governmental Studies San Francisco, Californian Election, 1983 (Apr. 26), recall of Mayor Dianne Feinstein: campaign newspaper clippings. 17 Michalene Cox (2003) ‘When Trust Matters: Explaining Difference in Voter Turnout’, Journal of Common Market Studies, Vol. 41, No. 4, 757–70. 16



The recall of elected politicians81

Table 4.4:  US states with recall provisions for assembly members and governors State Alaska Arizona California Colorado Georgia Idaho Kansas Lousiana Michigan Minnesota Montana Nevada New Jersey North Dakota Oregon Rhode Island Washington Wisconsin

Signature threshold (%) 25* 25 12 25 15* 20 40* 33 25 25* 15* 25 25 25 15 15* 25* 25

* Recall only after the representative has been found guilty of some form of malfeasance or misconduct Source: www.constitution.org/cons/usstcons.htm

fifty US states with a dummy variable (1 5 provisions for recall, 0 5 no provisions for recall) and a variable for the signature requirement for triggering a recall election, we find that there is a correlation of R 5 .48 for the regression model (and an R-­squared of .28). While this is only statistically significant at 0.05 level, it is an indication that the presence of the recall is associated with higher levels of participation. In other words, the hypothesis that, all other things being equal, participation is higher in states with the recall is supported statistically. Needless to say, there are possible factors. Yet it is worthwhile noticing that this result is considerably better that similar result measuring the effect of the initiative and the referendum. Unlike the results for the initiative and the referendum, there is no discernable difference between the south (where turnout is historically lower) and the northern states where turnout is historically higher as Everson showed in a classic analysis.18 Thus while recall elections are relatively rare, they do seem to have a statistical effect on turnout. This, as it happens, is also consistent with anecdotal evidence of declining levels of distrust in the wake of the 1988 recall election of Arizona governor Evan Mecham – who resigned before D. Everson (1981) ‘The Effects of Initiatives on Voter Turnout: A Comparative State. Analysis’, Western Political Quarterly, Vol. 34, No. 3, 415–25.

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Box 6: The Wisconsin recall, 2011: from adversarial politics to the politics of accommodation? In spring 2011 Republican Governor Scott Walker (Republican) and members of his party in Wisconsin’s Senate and Assembly passed a law eliminating collective bargaining for public employee unions. Many Wisconsinites opposed the new law, which had not been a part of any Republican’s campaign platform. Hundreds of thousands around the state protested its adoption. A legal challenge in Wisconsin’s Supreme Court was rejected by a 4–3 decision. This prompted Democratic volunteers to gather tens of thousands of signatures to recall six eligible Republican senators. Ideally, the Democrats would have liked to unseat the Governor, but officials cannot be recalled within two years of their election. Hence they directed their ire against Senators who had served more than the required two years. The Republicans responded in kind by gathering signatures to recall Democrat members of the State Senate, pointing mostly to Democratic senators’ refusal to provide a voting quorum. They too were able to gather enough signatures to challenge three of the eight sitting Democratic senators eligible for recall. In an underhanded strategy, Republicans then ran Republican supporters as Democratic candidates in the recall races. This manoeuvre prompted primary elections and pushed back the general election dates by four weeks. The Republicans did not intend to win the primaries. But in those four weeks, they passed a restrictive voter identification bill, bought enough time for Republicans to organise their campaigns, and passed a lopsided redistricting plan intended to help Republicans win elections for the next ten years. Only two of the Democratic challengers, Jennifer Schilling and Jessica King, succeeded in unseating their Republican opponents. A third recall candidate, Sandy Pasch, came close to defeating a sitting Republican senator in a close race, but failed. This meant that the Republicans maintained control of the Senate – though only by one vote. Was the whole exercise in vain? Critics argued that it was a waste of money and politics gone too far. But the fact that the middle of the road Republican Dale Schultz – who voted against the Governor’s anti-­union legislation – now has the swing vote, might lead to more consensus politics. Indeed, as one commentator put it ‘There is a good chance that Schultz, who was not eligible for recall this summer, may temper Walker’s and the Republicans’ agenda. As recently as 10 August, Walker promised to work for greater bipartisanship’.a Or, as the Christian Science Monitor predicted, ‘Expectations are that it [the Recall of two Republican Senators] will push Gov. Scott Walker (R) toward a legislative agenda that holds greater appeal for Democrats or that is handled more sensitively than the so-­called “budget repair bill” from February, which so angered Democrats that they fled the state to prevent a vote on it.’b It is



The recall of elected politicians83

conceivable – though by no means certain – that recalls may thus lead to greater consensus and less adversarial politics. Notes: a http://www.guardian.co.uk/commentisfree/cifamerica/2011/aug/17/wisconsin-­recall-­ elections (accessed 20 August 2011). b h ttp://www.csmonitor.com/USA/Politics/2011/0817/Democrats-­w in-­i n-­l atest-­ Wisconsin-­recall.-­Is-­state-­a-­little-­less-­red-­now (accessed 20 August 2011).

the recall election, which almost certainly would have seen him removed from office.19 One finding which is worth reporting, is that the recall is mainly used in states where a recall process is a political tool. In states where the representative must be guilty of some form of malfeasance or misconduct, the recall is less frequently used. Indeed, apart from California, there have only been successful recall elections of state-­wide representatives in states where the recall can be used without allegation – or worse – misconduct; Wisconsin (State Senator Gary George in 1996), Michigan (Assemblymen Phil Mastin and David Serotkin in 1983) and North Dakota (Governor Lynn Joseph Frazier in 1921). The recall outside the USA The recall is rarely used outside the United States. Only a handful of established democratic countries use the device, namely certain federal states and cities in Switzerland, Canada and the Federal Republic of Germany – and in Iceland and Austria (where the president of the republic can be removed by recall, though no recall elections have been held to date in the latter two countries). The recall has been introduced in British Columbia, though in a somewhat different form to that known in the USA. BC adopted the recall process in 1995 through the Recall and Initiative Act 1995. The BC mechanism stipulates that a recall election cannot be initiated until 18 months after an election. Those demanding a recall do not have to show that the representative has been guilty of malfeasance, but must provide a statement of why the Member of the Legislative Assembly should be recalled. Furthermore, there is not a recall election, but the representative must resign once the signature threshold (signatures from 40 per cent of the voters within 60 days) has been met. Since 1995, the Chief Electoral Officer has approved 20 recall applications, Paula D. McClain (1988) ‘Arizona “High Noon”: The Recall and Impeachment of Evan Mecham, PS’, Political Science and Politics, Vol. 21, No. 3, 628–38.

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of which only one has led to the removal of a representative, namely Paul Reitsma, who resigned hours before he would have been removed from office. Reitsma, a Liberal Member of the Legislative Assembly, was accused of writing letters to newspapers under an assumed name. He was expelled from the Liberal Party, but remained in the ­legislature.20 While only used successfully once, there are indications that the mechanism has proved efficient, though concrete evidence is hard to come by. Arend Lijphart has argued that the recall – as a matter of logic – only ‘works in plurality and majority electoral systems because it requires that each representative’s constituents can be clearly identified’.21 This is, of course true, if we define the institution narrowly. However, in some countries – Germany and Switzerland – there are provisions for ‘total recall’, i.e. the revoking of the mandate of the entire legislature. One peculiar example of the use of the recall (Abberufung) is found in Berlin, where according to Art. 63 of the State Constitution, the whole Abgeordnetenhaus (State Legislature) can be recalled if signatures are collected from 20 per cent of the registered voters, and a majority of the voters vote for this in a special election with a of 50 per cent or more turnout. In 1981, activists managed to collect 300,000 signatures (more than the required number). In order to avoid the humiliation of being recalled, the Social Democratic Mayor of the City called new elections. While the recall election did not take place, the mechanism had worked, as the criticised politicians lost power including the Mayor, the Social Democrat Hans-­ Jochen Vogel, who was defeated by the Christian Democrat Richard von Weizsäcker in the next election.22 As often in politics, it is the ‘dog that didn’t bark’ that is important. While the recall has had some effect in British Columbia, it is difficult to discern a similar effect in Germany and Switzerland. The recall is an annual occurrence in British Columbia, but the same is not the case in Germany, and still less in Switzerland, Austria and Iceland. In none of the latter three countries have there been recall elections to date.

Chief Electoral Officer (2002) The Electoral History of British Columbia 1987–2001, Victoria, Elections BC, p. 69. 21 Lijphart Democracies, p. 200. 22 Werner Reutter (2005) ‘Berlin’s Republic: Parliamentary Government in a German Land’, German Politics, Vol. 14, No. 4, 438–54. 20



The recall of elected politicians85

Table 4.5:  Recall provisions in democratic countries Country

Type of recall

Argentina Germany Austria Switzerland Iceland South Korea Romania Canada (British Columbia)* Venezuela

Local level* Local level* President** Local level* President** National level National level** Provincial level all levels

* Initiated by voters, decided by voters ** Initiated by authorities, decided by voters after election *** Initiated by voters, decided by authorities. NB: Other countries with recall provisions include countries that are not recognised as free democracies, including Cuba, Belarus and Ethiopia. Source: IDEA 2008

Lenin’s big idea: and what happened later . . . In the history of ideas, no less a figure than Karl Marx spoke favourably about the system under which all the elected representatives’ mandates were ‘at all times revocable’ (‘jederzeit absetzbar’).23 Marx’s thoughts on the subject were later fully developed by Vladimir Lenin, who wrote at considerable length on the subject, and ensured that the institution was incorporated into Soviet Constitutional law. Lenin supported in principle the ideal of a ‘fuller democracy’ in which all officials should be ‘fully elective and subject to recall’,24 as this was the only way of overcoming what Karl Marx had considered to be the problem of parliamentarianism, namely ‘deciding once in three or six years which member of the ruling class was to represent people in parliament’.25 According to Lenin, ‘no elective institution or representative assembly can be regarded as being truly democratic and really representative of the people’s will unless the electors’ right to recall those elected is accepted and exercised. This fundamental principle of true democracy applies to all representative assemblies without exception, including Karl Marx (1953) [1871] ‘Der Bürgerkrieg in Frankreich’, in Marx-­Engels Werke, Berlin, Dietz Verlag, Vol. 17, 339. 24 Vladimir I. Lenin (2004) [1917] The State and the Revolution, New York, Kessinger Publishing, pp. 36–7. 25 Marx cited in Lenin, The State and the Revolution, p. 39. 23

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the Constituent Assembly’.26 The proposal for the recall was passed in Russia’s Central Executive Committee on 21 November 1917 by the Bolsheviks. According to the decree, a recall election would be i­nitiated upon the request of half the electorate in a given electoral  ­district. At least four representatives were recalled. However, the  mechanism  quickly fell into disuse after the 1917 revolution, though it was used briefly in the final years of the Soviet Union at the local level. Perhaps as a result of this legacy, several former communist countries considered introducing the recall. However, in the end the provision was only introduced in Kyrgyzstan, Belarus (in both cases for deputies) and in Romania (at the presidential level after a recall motion has been passed by Parliament). Of the former communist countries, the recall has only been employed in Romania.27 In Latin America there are provisions for recalls in Argentina (for Members of Parliament) and in Venezuela (at all levels of government). In Asia, provisions for recalls exist in South Korea, the Philippines and Taiwan. The low number of recall elections in new democracies makes it difficult to draw conclusions. To date there have been only two nationwide recall elections, in Romania in 2007 and in Venezuela in 2004, though it should be noted that the legislature in Taiwan attempted to initiate a recall election against President Chen Shui-­bian in 2006. In 2007 Romanian President Traian Ba˘sescu faced a recall election. The allegation was that the President had abused his powers. After a prolonged partisan struggle with the opposition parties, Parliament voted on 19 April 2007 for a recall election. 322 voted for and 108 against (the minimum number of votes needed was 233). However, the President won the support of 75 per cent of the voters (6.1 million). The vote, which was intended to weaken the President, in fact did the opposite. Five million voters had supported him when he won the presidency. With the support of another million voters, Traian Ba˘sescu was, arguably, in a stronger position after the recall.28 Conversely, in Taiwan President Chen Shui-­bian survived a vote in Vladimir I. Lenin (1972) [1917] ‘On The Right Of Recall’, in V.L. Lenin Collected Works, Moscow, Progress Publishers, Vol. 26, p. 336. 27 Stephen White and Ronald J. Hill (1996) ‘Russia, the Former Soviet Union and Eastern Europe’, in Michael Gallagher and Pier Vinzenzo Uleri (eds), The Referendum Experience in Europe, London, Macmillan, p. 158. 28 ‘Romanian President Survives Referendum on Impeachment’, Associated Press, 19 May 2007. 26



The recall of elected politicians87

Parliament in 2006 that would have led to a recall election. Interestingly, while Ba˘sescu went on to be re-­ elected, Chen Shui-­ bian suffered a humiliating defeat in the subsequent presidential election, and was subsequently jailed for life.29 In both Romania and Taiwan, there was a sense that the recall had been used for party political purposes, and that the mechanism has more to do with partisan advantage than with strengthening the voice of the people. Another, and perhaps more controversial, recall election was held in Venezuela in 2004. President Hugo Chavez was arguably politically strengthened by the recall (which he won by 59 per cent). To be sure, the recall was far from meeting democratic standards. Indeed, an analysis of the recall found that while charges of ‘fraud in the actual voting or vote-­counting are unproven, the dubious and even illegal tactics that the Chavez regime used throughout the larger process point to rampant ‘institutional fraud’ that is undermining Venezuelan democracy’.30 Yet despite these irregularities there is a broad consensus that the recall election itself strengthened Chavez’s popularity. To quote a recent study: ‘the share of voters who told pollsters that they would vote to recall him [Chavez] dropped from 69 per cent in July 2003 to 44 per cent in the first week of August 2004. Correspondingly, support for Chávez steadily increased from 31 per cent to 56 per cent.’31 The recall in Venezuela is difficult to compare to similar recall elections in other more democratic countries, yet the result seems to suggest that Chavez – like Ba˘sescu in Romania – was strengthened by the vote. Conclusion Pundits and editors had a field day. Arnold Schwarzenegger, an actor whose movies included one entitled Total Recall declared – paraphrasing his famous line from the film The Terminator – ‘Hasta la vista, Gray Davis’ – and did so on The Tonight Show with Jay Leno.32 It was almost too good to be true. But the question is whether the recall – the right of the voters to remove a sitting representative after a public ballot – is more than a political gimmick by a man whose, ‘rise to fame’, www.atimes.com/atimes/China/HF29Ad02.html (accessed 20 December 2010). Miriam Kornblith and  Vinay Jawahar (2005) ‘Elections Versus Democracy’, Journal of Democracy, Vol. 16, No. 1, 124–37. 31 Jennifer McCoy (2006) ‘The 2004 Venezuelan Recall Referendum’, Taiwan Journal of Democracy, Vol. 2, No. 1, 67. 32 The Tonight Show with Jay Leno, original air date 6 August 2003. 29 30

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a­ ccording to some, ‘owes more to steroids than charm’.33 This chapter has shown that the recall has had some effect in US states that employ it. Turnout is higher in states that allow representatives to be recalled, an indication perhaps that voters are more satisfied with democracy in the recall states. It is difficult to find a similar pattern outside the USA. The recall has had some effect in the Canadian province of British Columbia (where an assembly member was forced to resign in 1998), but it is difficult to find evidence of the same elsewhere. One common finding in the USA as well as elsewhere is the paradoxical one that the recall often strengthens the incumbents who have faced a recall and won. In California, Ronald Reagan was strengthened as a result of three failed recall elections. The same is arguably true for Traian Ba˘sescu in Romania and for Hugo Chavez in Venezuela. There are, to be sure, some examples of recall provisions that have led to resignations of unpopular representatives (e.g. Gray Davies in California), but there is little solid evidence that the recall fundamentally changes the political landscape. It is a last resort weapon, but not one that fundamentally changes politicians’ behaviour. This minimalist conclusion does not suggest that the recall is a flawed idea, and that it should not be introduced in, say, Britain. The recall has had an effect, and a positive one at that, e.g. in the cases of British Columbia, Arizona and California. In short, while there is only limited evidence to suggest that the recall has increased the accountability and responsiveness of elected representatives, there is little evidence that provisions for revoking the mandates of elected representatives has disrupted politics.

Guardian (2003) ‘The Governator’, 8 August, B2.

33

5

Can the voters be trusted?: the case of European integration

Philosophers from Aristotle to Rousseau (and lesser minds) have, albeit in different ways, argued that voters were competent to make informed decisions. This is by no means certain. Many political scientists have questioned this assumption – though as we shall see they have not always done so on the basis of empirical evidence. Bolton King, writing about a plebiscite in Lombardy, was very sceptical. He asserted: ‘Experience has shown how untrustworthy a plebiscite may be, how with a people untrained in political life a vote on an issue, taken hurriedly without free and full discussion may be far from representing the real feelings of a people.’1 It would seem a reasonable view, but it is not based on empirical evidence (e.g. surveys). Most referendums in Europe are free-­standing ones, i.e. the voters only have to consider one issue and not a host of issues as they do in California for example. But would it matter if the voters had to vote on many issues? Is voting so onerous? And do voters need to have an encyclopaedic knowledge about the issues? In recent years, political scientists have suggested that voters need not know everything, but that they can base their decisions on so-­called ‘cues’ or ‘information short-­cuts’.2 Some people have argued that it is irrational to vote as the cost of acquiring information is higher than the benefits of a candidate winning or a proposition receiving support.3 But voters need not know everything. Indeed, they don’t even try to. In fact, state-­of-­the-­art research on referendums suggests that voters have a reasonable knowledge about the

Quoted in Lawrence T. Farley (1986) Plebiscites and Sovereignty: The Crisis of Political Legitimacy, Boulder, CO, Westview Press, p. 49.  2 S.B. Hobolt (2007) ‘Taking Cues for Europe? Voter Competence and Party Endorsements in Referendums on European Integration’, European Journal of Political Research, Vol. 46, No. 2, 151–82.  3 A. Downs (1957) An Economic Theory of Democracy, New York, Harper.  1

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issues notwithstanding that they have imperfect information. A recent article has summed up the argument thus: The basic idea of much recent research on the relationship between information and voting is that limited information need not prevent people from making competent vote choices since voters can rely on cues and heuristics to overcome their information shortfalls . . . To achieve this, voters can use various types of information shortcuts and substitutes for encyclopaedic knowledge about politics such as party-­identification, campaign events and elite endorsements.4

Hobolt has pointed out that citizens make enlightened decisions in ‘referendum campaigns that generate interest among voters and provide credible information about the consequences’. She cites survey evidence which supports the conclusion that ‘a large proportion of voters have the capacity of voting competently and responsibly on  European issues given that adequate information is made available’, even if ‘detailed factual knowledge is not necessary to for voters to act in a reasoned manner’. Other research on the same lines found that voters, while they were not able to give detailed encyclopaedic reasons for their choices, were nevertheless able to rightly identify the issues.5 Such arguments, however, might not convince the sceptics. Critics of the short-­cut approach might argue that information short-­cuts are no substitute for real knowledge about the issues. Moreover, to be able to make decisions on the basis of elite endorsements (i.e. to support a proposition because you trust those who endorse it) is not enough. In fact, too much reliance on elites could in many ways be counterproductive – as citizens sometimes defy the elites. This, indeed, is what happened in Denmark in 2003, in Ireland in 2001, in Sweden in 2003 and in France and the Netherlands in 2005. Do these examples not prove that voters are unwilling to listen to the elites; does it prove that voters are therefore incompetent? To answer this question we need to take a closer look at the alternative to referendums, namely a pure representative democracy and in particular at the knowledge of elected politicians.

Hobolt, ‘Taking Cues on Europe?’, pp. 154–5. Sara B. Hobolt (2009) Europe in Question: Referendums on European Integration, Oxford, Oxford University Press, pp. 241–9.

 4  5



Can the voters be trusted?91

Voters and politicians: who knows best? Representative democracy has always been the norm. Charles Secondat de Montesquieu, the French constitutionalist, set out the position in his The Spirit of the Laws (Part II, Book II, Chapter 6) when he wrote: ‘The people as a body should have legislative power; but as this is impossible in large states, and is subject to many drawbacks in small ones, the people must have their representatives do what they cannot do themselves.’6 He went on to say that the ‘great advantage of representatives is that they are able to discuss public business. The people are not at all appropriate for such discussions.’7 There has been a lot of water under the bridges of democratic thinking since these times. Voters might not have been quite so knowledgeable in 1748 as in 2007. Moreover, Montesquieu might just have been plain wrong. But it doesn’t seem likely. Voters, it is true, often have a rather limited knowledge of who their representatives are and what they stand for (as we saw in Chapter 1). But this is hardly an argument against the referendum. In fact, the overall results from empirical surveys are encouraging from the point of view of referendums. Citizen knowledge in countries with frequent referendums Do voters know enough about the issues to able to participate in direct democracies? Nelson Polsby and Aaron Wildavsky – writing about referendums and initiatives in California – were sceptical. They asserted: ‘To learn what is involved in a seemingly innocuous proposal to raise someone’s salary or issue bonds takes hours of study. To understand twenty or more is unduly onerous.’8 The more referendums, the less voters are likely to know some would argue. But is this correct? Intuitively speaking we would expect voters to be less knowledgable in countries where they constantly have to make up their minds about different issues. Do they actually know what they are voting about? And are there factors that improve their knowledge? Maybe not. But could there be another possibility? Some politicians and political theorists have suggested that more referendums, rather than Montesquieu (2004) The Spirit of the Laws, Cambridge, Cambridge University Press, p. 159.  7 Montesquieu, The Spirit of the Laws, p. 159.  8 Nelson Polsby and Aaron Wildavsky (1984) Presidential Elections: Strategies of American Electoral Politics, New York, Charles Scriber’s Sons, p. 279.  6

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depressing turnout, and leading to ignorance and apathy might in fact lead to greater political interest and engagement. Benjamin Barber, an American political theorist, thus suggested that: [Even] if Americans sometimes seem unfit to legislate, it may be because they have for so long been passive observers of government. The remedy is not to continue to exclude them from governing, but to provide practical and active forms of civic education that make them more fit than they were. Initiative and referendum processes are ideal instruments of civic education; paradoxically, the more truth there is to the charge that people are not fit to govern, the greater need there is to involve them in governing.9

This view – sometimes known as ‘supply-­side politics’ – was not a new one.10 As we saw in Chapter 1, at the beginning of the nineteenth century a group of politicians – loosely known as the Progressives (which included both Ted Roosevelt and Woodrow Wilson) – made a similar case for the introduction of referendums. Jonathan Bourne Jr, an Oregon Senator, expressed the same view: The system [initiatives and referendums] encourages every citizen, however, humble his position, to study the problems of government, city and state, and to submit, whatever solution he may evolve for consideration and approval of others. The study of measures and arguments printed in the publicity pamphlet is of immense educational value. The system not only encourages the development of each individual, but tends to elevate the entire electorate to the plane of those who are most advanced. How different from the system so generally in force, which tends to discourage and suppress the individual!11

This was not only an American idea. It was also a view taken by politicians and theorists in Britain. John Stuart Mill – his concerns about direct legislation notwithstanding – had, as we have seen, expressed sympathy for the educational effects of direct participation. It was on the basis of these views – and to provide the voters with a veto – that A.V. Dicey made a case for the referendum. ‘The referendum is,’ wrote

Benjamin Barber (1977) ‘Evidence to US Congress, Senate Committee on the Judiciary’, Voter Initiative Constitutional Amendment, Hearings Before the Sub-­Committee on the Constitution on S.J. Res. 67, 95th Congress, 1st Session. 10 I. Bohnet and B.S. Frey (1994) ‘Direct Democratic Rules for a Future Europe – The Role of Discussion’, Kyklos, Vol. 47, No. 3, 341–54. 11 J. Bourne, Jr. (1912) ‘A Defence of Direct Legislation’, in W.B. Munro (ed.), Initiative, Referendum and Recall, New York, Appleton, p. 203.  9



Can the voters be trusted?93

Dicey ‘an education in the application of men’s understandings to the weightiest public concerns – namely of passing laws.’12 But these assertions do not prove anything. What counts is empirical evidence, in other words proof! This was not possible to obtain for the classic theorists, who wrote before the introduction of mass surveys. But today we are in the fortunate position that these devices have been perfected. And recently scholars of direct democracy have put the views to the test. In a recent book, Educated by Initiative, American political scientists Daniel A. Smith and Caroline Tolbert13 found evidence in support of the above propositions. They found that provisions for referendums increase turnout, that for every two propositions on the ballot turnout goes up by 1 per cent, and that Referendums increase interest in politics. Needless to say, referendums and initiatives are not a panacea, but the effect on political engagement is positive, not negative as suggested by opponents. At a time when the government in Britain claims that it is concerned about declining political engagement, it therefore seems odd that they should deprive the voters of a mechanism which increases turnout and engagement. But, so it might be argued, these figures are from America – not from Britain or Europe. Would it not be different in Europe? Research from European countries suggests otherwise. That is, there is exactly the same correlation between the existence of political institutions and political engagement in Europe. As shown in a paper about the Maastricht Treaty by Matthias Benz and Alois Stutzer, two Swiss researchers: In countries where citizens had the right to vote on it [the Maastricht Treaty] (e.g. in Denmark), politicians had to engage more in explaining the Treaty to the citizens than in countries where no referendum took place (e.g. in Germany) . . . This and other examples offer suggestive evidence that voters are better informed when they have a larger say in the political process.14

Based on the Eurobarometer Survey, it is possible to replicate this result. In the mega-­survey conducted in 1996, about 65,000 individuals living A.V. Dicey (1890) ‘Ought the Referendum to be Introduced into England?’, Contemporary Review, Vol. 57, 508. 13 Smith and Tolbert, Educated by Initiative, p. 62. 14 Matthias Benz and Alois Stutzer (2004) ‘Are Voters Better Informed When They Have a Larger Say in Politics? Evidence for the European Union and Switzerland’, Public Choice, Vol. 119, No. 1, 32. 12

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in the then 15 EU countries were asked ten questions. The questions were Do you happen to know:   1. The current number of states in the EU?   2. The name of the President of the European Commission?   3. The number of commissioners of your country?   4. The name of the commissioner?   5. The recently chosen name of the European currency?   6. The name of the country that holds the presidency of the EU?   7. The current value of ECU in you national currency?   8. The city in which most EU institutions are based?   9. One of the colours in the European flag? 10. The year in which notes and coins will be introduced? Using these questions as a measure of objective information about the EU, we can construct an index ranging from high knowledge (correctly answering all ten questions), good knowledge (between six and nine), little knowledge (one to five) and no knowledge (no correct answers). Out of the fifteen countries, six had held referendums, namely Denmark (1992), Ireland (1992), France (1992), Sweden (1994), Finland (1994) and Austria (1994). Whereas the average score in all the EU countries was a meagre 2.14, the average score in these countries was 3.42. While the figures do not prove that referendums directly lead to a higher level of political knowledge, the correlation clearly suggests that referendums – statistically speaking – have a positive effect on political knowledge. The more the better! Statistically speaking it has – using the same figures – been calculated that knowledge of the EU was 1.7 times higher in countries that held referendums than in countries that did not.15 It is interesting to contrast these figures with figures from Switzerland. While not a member of the EU, the Swiss held a referendum on membership of the European Economic Space (EES) in 1992 – which was narrowly defeated.16 Nevertheless, the findings presented by Benz and Stuzer – though based on a different data-­set – suggest that the Swiss are more informed than their German counterparts, and this is despite the fact that Germany was a founding member of the EU, whereas the Swiss are outside the EU. Why this difference? Possibly because the Benz and Stutzer, ‘Are voters Better Informed’, 41. Lawrence LeDuc (2003) The Politics of Direct Democracy: Referendums in a Global Perspective, Peterborough, Ontario, Broadview Press, p. 155.

15 16



Can the voters be trusted?95

Swiss – who on average vote in ten referendums every year17 – are more interested in politics because of the provisions for referendums in their Constitution. On the basis of this we can conclude that citizens’ knowledge about politics – all other things being equal – is higher in countries that allow more citizen participation (e.g. through referendums or initiatives). The provision for referendums in constitutions is positively correlated with knowledge about politics. Conclusion What did the Romans ever do for us? Quite a bit if we are to believe the Monty Python film The Life of Brian. But Michael Palin, John Cleese and the other Pythons forgot to mention one thing; the citizens’ right to veto legislation. It is fitting, therefore, that we still use a Latin word for this activity: referendum. In the seventeenth century a Latin tract, Historica Rhaetica, informed the readers that decisions taken by the delegates of the Swiss Bundestag were submitted to the people and decided ‘ad referendum’. Since then we have used the word.18 The first Roman referendums ‘were held before historical time, perhaps in the 8th century’.19 But while the ancient Romans gave us a mechanism for holding our leaders to account, Rome’s modern contribution to politics, The Treaty of Rome, it could be argued, gave us nothing of the sort. Indeed, Jean Monnet, the founding father of the European Communities, boldly stated in his memoirs that: ‘I thought it wrong to consult the people of Europe about the structure of a Community of which they had no practical experience.’20 And perhaps his scepticism regarding the knowledge of the people was warranted at the time. But given the evidence so far, it seems that voters have – by and large – been capable of making informed decisions. Of course, there have been examples of ill-­considered knee-­jerk votes (the referendum on the de facto abolition of property taxes through the Proposition 13 vote in California in 1978, is perhaps the most-­cited example). But generally speaking, and allowing for the inevitable exceptions to the rule, referendums have not led to ill-­considered legislation and chaos. As we LeDuc, The Politics of Direct Democracy, p. 154. W.A.B. Coolidge (1891) ‘The Early History of the Referendum’, English Historical Review, October 1891, cited in Alderson, Yea or Way, p. 10. 19 Stanley Alderson (1975) Yea or Nay. Referenda in the United Kingdom, London, Cassell, p. 10. 20 Jean Monnet (1978) Memoirs, New York, Doubleday, p. 367.

17 18

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have seen in this chapter there is reason to believe that referendums – on balance – have a positive effect on democratic politics and governance. Citizens’ knowledge about politics is higher in countries that allow more citizen participation (e.g. through referendums or initiatives). Provisions for referendums in constitutions are positively correlated with knowledge about politics. Thus in countries where referendums on the EU had been held the voters had a greater objective knowledge about the Union than in countries where such matters had not been submitted to the voters. Moreover, comparative research suggests that citizens use information short-­cuts to make enlightened decisions, which are consistent with their fundamental preferences. In recent research, it has been shown that voters are able to reach decisions even without perfect information. And anecdotal evidence suggest that voters in Switzerland were more enlightened about the EU than were their opposite numbers in Germany, despite the fact that the latter country was a founding member of the European Communities, while the former is outside the EU. The reason is, perhaps (and here we have to be cautious) a result of the frequent use of referendums in Switzerland. This is good news for those in favour of referendums – and for those who are keen that we should continue that tradition which lies at the root of our European heritage, namely democracy. Writers have often had doubt about the people’s lack of knowledge. While it is impossible to prove anything in politics, the evidence provided here suggests that voters are informed – and that more referendums are likely to increase public engagement and participation. Of course, this says nothing about how the voters may use this power. To answer this question it might be useful to look at a couple of concrete examples of referendums.

6

The Irish referendum on the Lisbon Treaty

A case study of the Irish referendum on the Lisbon Treaty

Would it not be easier In that case for the government To dissolve the people And elect another? Bertolt Brecht1

‘I think we have run a strong campaign. We have explained the issues in considerable detail and all our TDs [parliament members] have been out campaigning personally for a yes vote.’ It was the press officer for one of the major ‘yes’ parties who presented this excuse at Dublin Castle on the day of the count. What he presented was a textbook example of how to lose a referendum. They (the ‘yes’ side) did all the things that you should not do in a referendum. This chapter presents an outline of what happened in the Irish referendum campaign in 2008 and how it compares with the four referendums on the European Constitution in 2005. The salient points of the chapter are as follows: • The Irish referendum, as well as the plebiscites in 2005, followed class lines, with the working classes tending to be more sceptical of the EU; • Turnout was not related to the outcome – nothing in the Irish case (or, indeed, in referendums elsewhere) suggests that low turnout leads to a ‘no’ vote; • The pro-­treaty parties allowed the ‘no’ camp to set the agenda and only belatedly sought to counter the ‘no’ side’s arguments; • The ‘yes’ side suffered from the focus on the former Taoiseach Bertie Ahern’s questionable – and possibly illegal – business dealings, which made front-­page news during the weeks of the campaign; B. Brecht (1976) Poems, 1913–1956, ed. J. Willett and R. Manheim, London, Methuen, p. 440.

 1

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• The campaign was different from previous campaigns as the ‘no’ side was able to wage a better financed campaign due to the presence of the Libertas group formed by euro-­sceptic businessman Declan Ganley; • The media landscape had changed with an influx of eurosceptic English newspapers such as the Sun, which appealed to young working-­class readers. The background to the Irish referendum On the face of it, the Irish referendum on the Lisbon Treaty seemed to follow a trajectory familiar from sundry plebiscites; a virtually united political elite versus various marginal groups on the far left and equally extreme right. All the relevant parties in both of the Oireachtas (the Irish Parliament) except Sinn Fein were in favour of the Treaty. The Greens, it must be noted, having failed to win backing from their members in an intraparty referendum, were not officially in favour of the Treaty. However, the party leadership supported ratification and campaigned for a ‘yes’ vote. Some notable Green Party members, such as Patricia McKenna (the former MEP) were against the Treaty. The opposition was, as usual, comprised of groups such as Cóir (a social catholic and conservative organisation), the People’s Movement and the Workers’ Party. The difference this time was that the opponents also included the millionaire businessman Declan Ganley’s newly established organisation Libertas. The presence of this outfit arguably made a significant difference to the campaign dynamic; for the first time, the ‘no’ side was financially able to wage a professional campaign. However, this was not the only reason the ‘no’ side won out in the end. Ireland was the only country to submit the Lisbon Treaty to a referendum. Following the defeats of the European Constitution in France and the Netherlands, the other EU countries grew weary of referendums on the subject. That the Irish voters were given the option of pronouncing upon the fate of the Treaty was arguably not due to any particular enthusiasm for the virtues of direct democracy on the part of the Irish political elite, but rather a consequence of the political power of the High Court. In 1986, the High Court (or An Ard-­Chúirt) ruled in Raymond Crotty v. An Taoiseach2 that all further transfers of ­sovereignty to the The ruling actually states that ‘Changes which are proposed in the decision-­ making process of the Council . . . from unanimity to a qualified majority were asserted to be an unauthorised surrender of sovereignty’, and hence require a

 2



The Irish referendum on the Lisbon Treaty99

Table 6.1:  Irish support for and opposition to, the Lisbon Treaty during 2008 Date of opinion poll

Conductor

Sample size

In favour (%)

Against (%)

Undecided (%)

27 January 2008 1 March 2008 14 April 2008 26 April 2008 10 May 2008 16 May 2008 24 May 2008 5 June 2008 7 June 2008

Red C Red C Red C Red C Red C TNS/mrbi Red C TNS/mrbi Red C

1,002 n.a. n.a. n.a. 1,000 1,000 n.a. 1,000 n.a.

45 46 28 35 38 35 41 30 42

25 23 12 31 28 18 33 35 39

31 31 60 34 34 47 26 35 19

Source: Irish Times, various issues

EEC (as the EU was then called) had to be approved by the voters in popular referendums. In the Dáil Eireann (the lower house), the bill passed the First Stage on 2 April 2008, the Second Stage on 23 April 2008 and the Committee Stage and Report and Final Stages on 29 April 2008; the text of the referendum was also approved on 29 April. The bill was then sent to Seanad Éireann (the second chamber), where it passed the Second Stage and Committee Stage on 1 May 2008 and the Report and Final Stages on 9 May 2008. All was set for ratification and the opinion polls seemed to point in that direction, at least at this stage (see Table 6.1). In May, the executive council of the Irish Congress of Trade Unions voted to support a ‘yes’ vote in the referendum, and shortly thereafter the two largest farming organizations – the Irish Creamery Milk Suppliers’ Association (ICMSA) and the Irish Farmers’ Association – called for a ‘yes’ vote, with the latter giving its support after assurances from the Taoiseach (Prime Minister) Brian Cowen that Ireland would use its veto in Europe if a deal on world trade reform was unacceptable. The fact that the individual unions were not balloted and that the Technical, Engineering and Electrical Union (TEEU) advised its 45,000 members to vote ‘no’ seemed of little consequence in the debate. While certain factors can be identified across referendums in different countries, one ignores specific factors at one’s peril. One-­off events, referendum. In the event that the Treaty did not involve a further use of majority voting, no referendum would seem to be required. See further Raymond Crotty v. An Taoiseach and Others [1987] IESC 4 (1987–04–09).

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parochial concerns and sheer bad luck are underestimated factors in psephological studies. One factor in particular was important: the woes of the ruling Fianna Fail party. The campaign coincided with hearings about former Taoiseach Bertie Ahern’s questionable business dealings. Elected in 1996, the popular Ahern had pushed through the Good Friday Agreement in Northern Ireland and certainly left a mark and an illustrious legacy. Yet there was another side to Mr Ahern. While his alleged misdemeanours were not in the league of Charles Haughey in the 1970s and 1980s, Bertie Ahern was accused of accepting brown envelops stacked with cash. He resigned and passed on the leadership to Brian Cowen in April in order not to distract the campaign. He did not succeed in this. In fact, every day during the referendum campaign, the coverage of the plebiscite had to compete with the politically sordid details of Mr Ahern’s private finances as they emerged from the Mahon Tribunal. Finance Minister Brian Lenihan’s comment that ‘Ahern’s case was unhelpful’ diverted attention and was itself exactly what he had accused Ahern of being.3 The campaign was not helped by the new Taoiseach. A dour party man, not unlike Gordon Brown, Mr Cowen found it difficult to connect with the voters, perhaps because he (again like Brown) lacked  both charisma and a personal electoral mandate. Above all, Mr Cowen was fatally wounded politically when he admitted to the Danish TV journalist Mette Fugl that he ‘had not read the Treaty from cover to cover’. This, as Sinn Fein President Gerry Adams said to the author of this book, ‘was the main reason . . . you can’t expect people to vote for something that you haven’t yourself bothered to read’. While the ‘yes’ campaign had had a double-­digit lead in the opinion polls about a month before the referendum, a poll published on the Friday before the vote showed a 5 per cent lead for the ‘no’ side. According to the Irish Times poll, 35 per cent were against, 30 per cent in favour and 35 per cent undecided (see Table 6.1). The result a week later showed that the undecided had split roughly 2:1 in favour of the ‘no’ camp. The old adage of ‘in doubt, vote no’ seemed to be repeated and heeded. Indeed, this is almost a general pattern in Europe. Taken as a whole, the ‘yes’ side on average lost 17 per cent of its initial support over this referendum campaign.4 Irish Times, 12 June 2008. This statistic is calculated on the basis of figures provided by Professor Larry LeDuc’s The Politics of Direct Democracy. I am grateful to Professor LeDuc for his assistance. The usual caveat applies.

 3  4



The Irish referendum on the Lisbon Treaty101

This poll, belatedly, prompted the ‘yes’ side to initiate a concerted effort. Yet it was to no avail, or, perhaps, it was just too late for their efforts to matter. Anxious to snatch victory from the looming jaws of defeat, Brian Cowen embarked on a whistle-­stop tour to convince the sceptical electorate of the merits of the Treaty and of the dangers of a ‘no’ vote. He even joined forces with Fine Gael leader, and later Taoiseach, Enda Kenny and the Labour leader Eamon Gillmore. Such a show of unity by people who are normally trading verbal blows and personal insults across the floor of the Dáil Eireann did not convince the voters. Campaigning in a referendum is like solving an equation with many unknown variables and in which many singular events combine to create unforeseen circumstances. In particular, the ‘yes’ side was not helped by the interventions of, especially, French politicians such as Foreign Minister Bernard Kouchner, who called the Irish ‘ungrateful’,5 and the Green MEP Daniel Cohn-­Bendit, who suggested the same – though in the more colourful language that befits a former student leader of the 1968 Paris Revolt. The result The day after polling day, when the votes were trickling in, it was soon clear that the Reifreann ar chonradh liospoin (‘the referendum on the Lisbon Treaty’) had resulted in a ‘no’ vote (see Table 6.2). The first prognosis indicated a 60:40 split, while the final result was a good deal closer: 53.2 to 46.4. However, the margin of victory left no one in doubt that the politicians had failed to convince the voters. Table 6.2:  The result of the referendum in Ireland 2008 Electorate Turnout For Against Spoilt votes Source: Irish Times, June 2008

France 24, 13 June 2008.

 5

N

%

3,051,278 1,621,037 752,451 862,415 6,171

100 53.1 46.4 53.2 0.4

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Turnout, knowledge and patterns There are many homespun theories of referendums in the media. Some contend that a low turnout rate is likely to lead to a ‘no’ vote (as, indeed, it did in Ireland in 2001). Comparatively, and statistically, speaking, this is not the case. Indeed, if we correlate the percentage of ‘yes’ votes with the percentage turning out to vote in other Irish referendums, we only find a modest correlation of g2 of 0.28. Another contention is that referendums are won when the economy is in the doldrums and where the government has been in office for several years.6 This pattern seemingly fits the referendums on the European Constitution/Lisbon Treaty. Yet the Irish referendum was held in the shadow of emerging economic difficulties – though few anticipated the depths of the financial crisis and the credit crunch in June 2008. Comparatively speaking, the Irish should have voted ‘yes’. It was consistently argued that voters in Ireland rejected the Treaty because they did not understand it. Indeed, the ‘no’ campaign skilfully played on the message that no one should vote for a treaty they did not understand. And the electorate might well have heeded this: polling in the wake of the vote suggested that 78 per cent of the electorate voted ‘no’ because they claimed not to understand the Treaty.7 Anecdotal  evidence from elsewhere – especially early studies from America – suggests the same. However, it is not a consistent finding across cases that voters reject proposals of which they are ignorant. This becomes evident if we compare the data with the surveys taken in the wake of the referendums on the European Constitution in Spain and the Netherlands in 2005. In Spain we find the opposite tendency, namely, ‘in doubt, vote yes’: 70 per cent of those with a self-­confessed ‘very limited’ knowledge of the Constitution voted ‘yes’. In the Netherlands, 51 per cent of those who felt they lacked information voted ‘yes’. It seems that the problem, in large measure, was a result of a lacklustre campaign. Karl Marx goes to Dublin: class voting in Ireland Karl Marx and Friedrich Engels wrote in The Communist Manifesto: ‘Society as a whole is more and more splitting up into two great hostile

M. Qvortrup (2002) A Comparative Study of Referendums: Government by the People, Manchester, Manchester University Press, p. 51.  7 Irish Times, 22 June 2008.  6



The Irish referendum on the Lisbon Treaty103

camps, into two great classes directly facing each other.’8 Generally this observation is past its political sell-­by date, but their contention seems to have an element of truth as regards the case of voting patterns in the most recent referendums on European integration. In Luxembourg, 31 per cent of manual workers voted ‘yes’, whereas 69 per cent of the self-­employed did the same. While the discrepancy was smaller in the Netherlands, the same trend could be observed: 22 per cent of manual workers supported the Treaty, which was more popular among the self-­employed, with 43 per cent of them voting ‘yes’. A similar figure was reported in France, where 22  per  cent of manual workers endorsed the European Constitution, which was supported by 48 per cent of the self-­employed. (Data on class voting was not available for Spain.) The same pattern was repeated in Ireland. Among manual workers, 74 per cent voted ‘no’ to the Treaty, while among the self-­employed, 60 per cent voted ‘yes’. There was a corresponding difference between the more educated who voted ‘yes’ and the least educated who voted ‘no’. Why they did so is debatable, and might occupy psephologists for years, but one reason could be media influences. Since 2002 there has been an increase in Irish editions of UK newspapers: 41 per cent of all Irish people read one or more of the Irish Sun, Irish News of the World, the Sunday Times, People, the Irish Mirror, Sunday Mirror, Daily Mail and Mail on Sunday. These have proven to be significant opinion formers, which in general have been more euro-­hostile. What is particularly notable is that the highly euro-­sceptic Sun has a large readership among the working classes, with its core readership being young working-­class males. There are approximately 309,000 readers of this title. Media influences are hotly contested among scholars, and while it is far from certain that newspapers directly influence voters’ behaviour, it seems plausible that this had an influence upon the result. Murphy’s Law revisited There are a number of cardinal errors one should never commit in a referendum campaign. We have seen them all in Ireland, from electoral greed, complacency and complexity to mixed messages and inappropriate messengers. If voters do not understand an issue, they are more likely to smell a rat, even if the proverbial rodent is absent. Therefore, it is Karl Marx and Friedrich Engels, (2002) The Communist Manifesto, London, Penguin p. 85.

 8

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essential in a successful referendum that the ‘yes’ side has a narrow focus on one – and only one – symbolic issue. Furthermore, this token issue’s salience must have been tested in polls and focus groups to ensure it is the right one; politicians should never choose it alone, but are well advised to utilise polls, focus groups and other ways of gauging the views of the ‘people’. That is how referendums are won – by campaigning on one simple, salient, but popular issue. A classic example of this was provided in the referendum in Northern Ireland in 1998, which was billed as ‘a poll on progress’, and not as a plebiscite on the 20,000-­word intricate details of the so-­called ‘consociational system of power-­sharing’, that it in reality was. It is much easier to scatter ‘no’ landmines, to scare voters on abortion, neutrality, taxation or unelected presidents. That is why most referendums are actually lost, not won. This, for example, is how the anti-­abortion campaign almost caught up with the ‘yes’ side in the 1995 referendum in Ireland.9 The second law of successful referendum campaigns is that personalities do not sell. The fact that the parties campaigned by putting up posters with pictures of endless local wannabe politicians was the second cardinal mistake in the campaign. Voters do look to their political leaders for guidance, but since the vote is on an issue, not a candidate, they do not feel as bound by their party’s view. They want to associate with the messenger, but not if they are merely positioning themselves for the next election.10 To be sure, General Charles de Gaulle effectively used his own popularity to win referendums on Algerian independence and a new constitution in the late 1950s and early 1960s. Yet few people can match le general when it comes to charisma, and Brian Cowen and Enda Kenny are not among them. De Gaulle also (reportedly) reminded us that ‘the trouble with referendums is that the people answer the wrong question’. This is especially true mid-­term, which is the worst statistical moment to push through a poll. Referendums are about trust. They are about allowing people to feel comfortable about an issue. Politicians are generally seen as untrustworthy. Indeed, alongside car salesmen and lobbyists, politicians are probably the least-­trusted profession, not least at present – especially in tribunal-­heavy Ireland and above all on European matters. In order to instil this feeling of trust in the voters, it is important that the messenger is trusted, that they are someone with whom the voters can identify. Ordinary voters are more likely to identify with people like themselves. The classic example of this was a referendum in Denmark in 1972, when Poll Reveals Class a Key Element in Lisbon Vote’, Irish Times, 11 July 2008. LeDuc, The Politics of Direct Democracy, p. 81.

 9

10



The Irish referendum on the Lisbon Treaty105

the ‘yes’ camp printed shopping receipts comparing the prices of groceries in case of a victory.11 This had the desired effect. In i­ ssue-­based votes, trade unions, businesses, celebrities and sports people can participate, but not if they squabble and contradict each other: mixed messages do not sell well. To be fair, the ‘yes’ side began doing a few things right in the last week of the campaign, but it was way too little and certainly much too late. It is almost impossible to come back from that sort of poll negativity; indeed, the ‘yes’ side typically needs to be 2:1 ahead with less than 30 per cent ‘don’t knows’ a month out from the referendum. In the past it has been a successful strategy to question the motives of the ‘no’ side’s front people. Asking the question ‘who’s behind it?’ is uncomfortable. American political scientists Shaun Bowler and Todd Donovan have called this the ‘Who’s behind it cue’ – that is, ‘lacking detailed knowledge of a proposal, voters draw information for their decisions from beliefs about the proponent’s intentions and from ­credible cues (signals) sent by the proponents and opponents (such as elite endorsements)’.12 This is what the government in Austria did in 1994, when it effectively derailed the campaign of right-­wing politician Jorg Haider. That is how the Cyprus referendum of 2004 failed: the Greek Cypriots undermined both the UN and their Turkish compatriots by asking ‘Who is backing the “yes” campaign and do you trust them?’ This worked: the poll was lost and 75 per cent voted ‘no’. In campaigning terms, the ‘yes’ side was correct in questioning the motives of Libertas and their enigmatic front Declan Ganley. According to the theory espoused by Bowler and Donovan, voters make decisions on the basis of incomplete information: voters ‘take cues from information about who supports a measure, who drafted it, and who is behind the opposition to the measure’.13 The campaign was effectively over when they finally got round to questioning Mr Ganley’s possibly ulterior motives. The government offensive came too late, and again the message was not coordinated and still less focused. As a general rule, ‘don’t knows’ split down two to one against, and two-­thirds of those who ‘don’t know’ end up voting ‘no’. Voters are cautious; they tend to opt for the status quo in case of uncertainty. They are apprehensive about change, which often moves to resistance if given the

B. Lidegaard (2001) Jens Otto Krag, 1961–1978, Copenhagen, Gyldendal, p. 481. 12 Bowler and Donovan, Demanding Choices, p. 37. 13 Bowler and Donovan, Demanding Choices, p. 35. 11

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ammunition, and the ‘no’ side certainly succeeded in that. This pattern also proved to be correct in the Irish referendum. All that can go wrong will go wrong – so runs Murphy’s First Law. Given the way the ‘yes’ side conducted the referendum campaign, it is probably more appropriate to devise Murphy’s Second Law: ‘All that can’t go wrong will also go wrong.’ For example, the cross-­party alliance in favour of the Treaty was portrayed as ‘establishment and boring’ rather than ‘safe and solid; encouraging’. Conclusion: the end of an affair? Much as these points are salient, it is also worth bearing in mind that the voters turned away from the EU. Voters, as has been pointed out in several empirical studies, are not ill-­informed, but tend to have a good basic understanding of the issues put before them. It is perfectly conceivable that the voters simply did not like what was on offer, and that they, consequently, made a decision consistent with their preferences. ‘Voters,’ as V.O. Key noted in another context, ‘are not fools.’14 In fact, Irish voters have become more sceptical in recent years. As of spring 2007, Irish citizens have the second lowest European identity in the EU, with 59 per cent of them identifying themselves as exclusively Irish as opposed to wholly/partly European.15 The integrationist aspects of the Lisbon Treaty were therefore also of concern.16 While it must be acknowledged that these figures are based on different surveys, it is clear that the voters, while not opposed to the EU as such, were unhappy with further integration or transfer of sovereignty. In that sense, one might be excused for citing Albert Camus’ description of The Rebel – or L’homme revolté – as someone who says ‘You’ve gone too far. There is a limit beyond which you may not pass.’17 Of course, less literary minds might just be content with Morris Udall’s famous statement upon losing a presidential primary in 1976: ‘The people have spoken – t­hose bastards!’18 V.O. Key, Jr. (1966)  The Responsible Electorate: Rationality in Presidential Voting, Cambridge, MA, Belknap Press, p. 6. 15 ‘Deeper Look at Poll Illuminates Complex Reasons for Result’, Irish Times, 14 June 2008. 16 ‘The People Have Spoken – And They Are Not Loo-­lahs’, Irish Times, 14 June 2008; ‘Anti-­ Lisbon Treaty Campaign is Launched’, RTÉ News and Current Affairs, 12 March 2008. 17 Camus, L’Homme Revolté, Paris, Folio p. 24. 18 Richard Severo, ‘Morris K. Udall, Fiercely Liberal Congressman, Dies at 76’, New York Times, 14 December 1998. 14



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Of course, a year later it all changed. In 2009, 67.1 per cent of Irish voters voted in favour of the Lisbon Treaty, with 32.9 per cent opposed. Were the Irish hoodwinked or did they think better of it? The answer depends on the viewpoint of those who ask as well as those who answer the question.

7

The British referendum on the Alternative Vote in comparative perspective

Under the electoral system, which this Clause proposes to set up [the Alternative Vote], no one is to have what he wants but everybody is to have their second preference. Why is a proposal of this kind brought before this House? It reminds me of a saying of Oscar Wilde regarding Whistler that:  Whistler had no enemies, but he was intensely disliked by his friends. It would not be quite true to say that this Clause has no enemies; I am one, but it is true to say that it is intensely disliked by its friends. Sir Austen Chamberlain1

The referendum is ‘nothing more and nothing else than a national veto’, noted A.V. Dicey.2 This might not be a full description of the uses (and abuses) of the referendum, but it is certainly one of its major functions. As we have seen in the other chapters, there are many claims as regards the beneficial effects of referendums. Likewise there are many idealistic descriptions of when referendums ought to be held. But the question is whether these are met in practice. Are referendums held for ideal reasons and are the outcomes always beneficial for democratic discourse? In Britain, where referendums and other forms of direct democracy are a rarity, some people have been less than impressed with the practical use of the referendum. The referendum on the Alternative Vote (AV) in 2011 is a case in point. Before reaching a verdict on the desirability or otherwise of a greater use of referendums – and indeed other forms of direct democracy – it may be instructive to study this recent British referendum. On 5 May 2011 a majority of 67.9 per cent of British voters rejected a proposal to change the electoral system from first-­past-­the-­post to the Alternative Vote. The turnout was 42 per cent. In the wake of the referendum several questions were asked. How could the ‘yes’ Campaign, Sir Austen Chamberlain, House of Commons Debates, 4 March 1931, Col. 524. A.V. Dicey quoted in Qvortrup, A Comparative Study of Referendums, p. 58.

 1  2



The British referendum on the Alternative Vote109

which had enjoyed a double digit lead in January 2010, lose by such a margin? Did the better-­financed side win by virtue of deeper pockets? Was the result driven by cues from party leaders rather than based on enlightened decisions by the voters? And are referendums on electoral reform always unsuccessful? Needless to say, some of these questions cannot be determined with any degree of certainty especially as we still await comprehensive survey data. However, based on referendums in other countries on similar and related issues, as well as compared with previous referendums in the United Kingdom, we can put together coherent picture that enables us to rise above the apparently idiosyncratic and seemingly unique factors that ostensibly determined the outcome of this plebiscite. In doing so we can conclude that the referendum was not, in fact, that unique, but rather followed some familiar patterns identified in other referendums around the world on electoral reform. Referendums on electoral reform in comparative perspective Before going into this analysis of the referendum itself it is useful to consider, firstly, when referendums on electoral systems take place, and secondly, why a referendum was held in this instance. Reforms of the electoral system are seen as fundamental constitutional changes; i.e. changes that should not be undertaken lightly as the dangers of gerrymandering are ever present.3 In the United Kingdom – and in a number of other commonwealth countries (see below) – it has almost become a convention of the Constitution that electoral reforms and changes to the electoral system must be preceded by a referendum.4 This is very much the exception if we look at global trends since 1980. As is clear from Table 7.1, referendums on electoral reforms have only taken place in a small minority of cases. There have been sixty-­ eight changes or attempted changes to electoral systems at state and federal level since 1980. In only nineteen of these cases was the change ­submitted to the electorate for approval/rejection. Adrian Blau (2004) ‘Fairness and Electoral Reform’, British Journal of Politics and International Relations, Vol. 6, 165–81. See also J. Curtice (2003) ‘Changing Voting Systems’, in H. Druckner (ed.), Developments in British Politics 7, London, Palgrave, and Kenneth Benoit (2004) ‘Models of Electoral System Change’, Electoral Studies, Vol. 23, No. 3, 363–89.  4 Geoffrey Marshall (2003) ‘The Constitution and its Interpretation’, in V.B. Bogdanor (ed.), The British Constitution in the Twentieth Century, Oxford, Oxford University Press, p. 62.  3

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Table 7.1:  Electoral changes and attempted changes in independent states since 1980 Country

Political liberties

Referendum

Success/ Fail

Year

Old

New

Afghanistan Albania Albania Algeria Andorra Armenia Azerbaijan Bolivia British Columbia British Columbia Bulgaria Bulgaria Cambodia Canberra Colombia Congo (Brazzaville) Croatia Czech Republic****

6 3 3 6 1 6 6 3 1 1 2 2 6 1 3 6 1 1

0 0 0 0 1 0 0 0 1 1 0 0 0 1 0 0 0 0

S S S S F S S S F F S S S S S S S F

2005 1992 2008 1997 1992 1995 2005 1997 2005 2009 1991 2009 2006 1992 1993 2006 2000 2000

FPTP TRS MMP TRS FPTP TRS PAR List PR FPTP FPTP PAR List PR TRS List PR SNTV TRS PAR List PR

East Timor Ecuador Fiji France France Iraq Italy Italy Italy Jordan Japan Kazakhstan Kyrgyzstan Kyrgyzstan Kyrgyzstan Latvia Liberia Liberia Lithuania Macedonia Macedonia Moldova Mongolia Montenegro Nepal New Zealand New Zealand New Zealand Ontario

3 3 6 1 1 5 1 1 1 6 1 6 5 5 5 2 3 3 1 3 3 3 2 3 4 1 1 1 1

0 1 0 0 0 1 1 1 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 1 1 1

S S S S S S S F F S S S S S S S S S S S S S S S S S S F F

2006 1997 1999 1985 1986 2005 1993 1999 2009 1993 1996 1999 1999 2005 2007 1993 1997 2005 1992 1992 1998 1994 2008 2006 2008 1992 1993 2011 2007

NA List PR FPTP TRS List PR FPTP List PR PAR PAR BLOCK SNTV TRS TRS PAR TRS TRS FPTP List PR TRS TRS PAR TRS FPTP PAR FPTP FPTP FPTP MMP FPTP

SNTV MMP List PR List PR PAR PAR FPTP MMP STV STV List PR PAR List PR STV List PR List PR List PR Revised List PR PAR FPTP AV List PR TRS List PR MMP SML Bonus* SNTV PAR PAR PAR TRS List PR List PR List PR FPTP PAR PAR List PR List PR BLOCK List PR PAR MMP MMP FPTP MMP



The British referendum on the Alternative Vote111

Table 7.1:  (continued) Country Papua New Guinea Philippines Prince Edward Is. Romania** Russia Russia Rwanda Serbia Sierra Leone Slovenia*** South Africa St. Vincent & Grenadines Sudan Tajikistan Taiwan Thailand Tunisia Ukraine Ukraine Uruguay Venezuela

Political liberties

Referendum

Success/ Fail

Year

Old

New

4 3 1 2 6 6 6 2 3 1 2

0 0 1 1 1 0 0 0 0 1 0

S S F F S S S S S F S

2002 1998 2005 2007 1993 2007 2003 2008 1996 1996 1994

BLOCK FPTP FPTP List PR TRS PAR FPTP PAR FPTP List PR FPTP

PAR PAR MMP TRS PAR List PR List PR List PR List PR TRS List PR

1 7 6 1 5 7 3 3 1 5

1 0 0 0 0 0 0 0 1 0

F S S S S S S S S S

2009 2010 2000 1992 2001 1994 1997 2006 1997 1993

FPTP FPTP FPTP SNTV BLOCK BLOCK TRS PAR DSV**** List PR

List PR PAR PAR PAR PAR PAR PAR List PR TRS MMP

*  The Italian referendum in 2009 concerned a technicality, namely the shifting of a the majority bonus from the largest coalition to the largest party. ** Failed to meet the 50 per cent turnout threshold. ***  In 1996 the voters in Slovenia were offered three options: revised PR, TRS and MMP. TRS received the largest vote share (44 per cent), but not an overall majority and hence the status quo prevailed. **** Presidential elections only. ***** President Havel vetoed the bill on the grounds that it violated the Constitution. Key: TRS-­Two-­Round System; MMP-­Mixed Member System; PAR-­Parallel System; FPTP-­First-­past-­the-­post; SNTV-­Single Non-­Transferable Vote; STV-­Single Transferable Vote; AV-­Alternative Vote; List PR-­List Proportional Representation; SML-­Modified Block Voting; DSV-­Double Simultaneous Vote. Sources: Andrew Reynolds (2011) Designing Democracy in a Dangerous World, Oxford, Oxford University Press, pp. 77–8, Butlletí Oficial del Principat d’Andorra, Kenneth Benoit (2004) ‘Models of Electoral System Change’, Electoral Studies, 23: 363–89.

The reasons for this low propensity to hold referendums on electoral reform may be that voting systems have frequently been changed in countries that have – at best – a dubious democratic record, i.e. countries with a low Freedom House Score, such as Rwanda, Kyrgyzstan, Sudan and, arguably, Venezuela. Given this, it is tempting to conclude that referendums on electoral reform are more likely to take place in

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countries with more established democratic practices such as Canada, New Zealand and Britain. Yet the fact that electoral reforms have been undertaken in countries like France and Japan without a referendum rather questions the validity of this conclusion. To test it we need a ­statistical analysis (see below). But there could also be other explanations. Based on a quick overview of the list of electoral reforms since 1980, it seems that referendums have been more likely to take place in polities in the Commonwealth Countries. For example in: • Canada, where a number of proposed (and in all cases unsuccessful) reforms were submitted to referendums e.g. the introduction of the Single Transferable Vote (STV) in British Columbia (2005 and 2009), the introduction of the Mixed Member System (MMP) in Ontario (2007) and the introduction of MMP in Prince Edward Island (2005);5 • Australia: a reform of the electoral system was submitted to voters in the Australian Capital Territory in 1992 (a majority voted to introduce a variant of STV); • New Zealand, where voters voted to change from first-­past-­the-­post FPTP (1992) and in a separate referendum voted to introduce MMP in a multi-­option referendum in 1993; • Saint Vincent and the Grenadines: in 2009 a constitutional reform including the introduction of List Proportional Representation (PR) proposed by centre-­left Prime Minister Dr Ralph Gonsalves was rejected by 56 per cent of the voters – though his Unity Labour Party (ULP) was still able to win the General Election shortly after. Yet this pattern is somewhat falsified by the fact that referendums have also taken place in, inter alia, • Italy, where a referendum on a shift from List PR to MMP was held in 1993, and where a number of referendums on modifications have been held (in 1999 and 2009); • Romania (where President Ba˘ sescu’s proposal to establish parliamentary elections in single-­member constituencies was rejected due to a low turnout in 2007);6

LeDuc (2011) ‘Electoral Reform and Direct Democracy in Canada: When Citizens Become Involved’, West European Politics, Vol. 34, No. 3, 551–67.  6 Csaba Nikolenyi (2011) ‘When Electoral Reform Fails: The Stability of Proportional Representation in Post-­Communist Democracies’, West European Politics, Vol. 34, No. 3, 607–25.  5



The British referendum on the Alternative Vote113

• Ecuador, where a proposal to modify the existing List PR system was approved by the voters in a referendum in 1997); • Uruguay, where voters voted to replace the Double-­Simultaneous Vote (DSV) with a Two-­Round System (TRS) for presidential elections in 1996.7 Both the thesis that electoral reform referendums are more common in countries with stronger democracies (low Freedom House Scores) and the proposition that there is a positive correlation between membership of the Commonwealth and having referendums on electoral reform can be subjected to a statistical analysis. Using logistic regression analysis we find that there is a slight tendency that referendums are more likely to occur in democratic countries and in former British Colonies, but less likely to occur in countries that were under communist rule during the Cold War. As shown in Table 7.2, both variables Freedom House Score and the Membership of the Commonwealth-­dummy made statistically significant contributions to the model (Sig. p , 0.05). Based on odds ratios, we can thus conclude that referendums on electoral reform are almost five times more likely in Commonwealth countries (Wald-­Score 4.896) and that a one unit increase in the Freedom House Score increases the likelihood of a referendum on electoral reform roughly eight times Table 7.2:  Logistic regression of the propensity to hold referendums on electoral reform (standard errors in brackets) Variable Freedom House Score Effective number of parliamentary  parties Former British colony Former Communist country Constant

Model 1

Model 2

Model 3

−.606* (.364) .583* (.430) 1.950* (1.285) −1.957* (1.053) −.965 (1.689) N:70 Pseudo r2:.50

−.896* (.45) .48 (.28)

−.759* (.391) .548* (.38) 2.861* (1.232)

1.037 (1.2) N:70 Pseudo r2:0.2

−.1.502 (1.6) N:70 Pseudo r2: .40

* Significant at p,0.05 Sources: www. C2d.ch and www. freedom house.org

M. Qvortrup (1997) ‘Uruguay’s Constitutional Referendum?, Electoral Studies, Vol. 16, No. 4, 549–55.

 7

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(Wald-­Score 8.216). Statistically speaking, we thus find some evidence in support of the proposition that referendums are slightly more likely to occur in countries with high Freedom House Scores and in countries that are members of the Commonwealth. Yet it is questionable whether this agreement in itself was proof that a new convention of the Constitution had been established. While the statistical pattern may sound convincing, there is also reason to believe that the actual logic of submitting the issue to a referendum was tactical rather than principled.8 In many ways, it could be argued that the decision to hold a referendum follows the pattern identified by the Norwegian political scientist Tor Bjørklund in his classic paper ‘The Demand for Referendum: When Does it Occur and When Does it Succeed?’9 According to Bjørklund, referendums are often held in order to paper over differences within a multi-­ party coalition. Thus, the Norwegian coalition government decided to hold a referendum on EEC entry in 1972 in order to avoid a split. The Swedish bourgeois parties did the same when they disagreed over nuclear energy in 1980 and when they again disagreed over EU membership in 1994.10 That is, when a coalition is ‘divided over an important issue . . . [it] may embrace the referendum as a mediating device’.11 This logic, of course, is far from foreign in British politics, although multi-­party coalitions are rare in the United Kingdom. The 1975 referendum is a famous example of a referendum held to keep the Labour Party together.12 Indeed, before the vote in 1975 the Foreign Secretary (and later Prime Minister) James Callaghan referred to the referendum as a ‘rubber life raft into which the party may one day have to climb’.13 This L. Morel, (2001) ‘The Strategic Use of Government-­ sponsored Referendums in Liberal Democracies’, in Matthew Mendelsohn and Andrew Parkin (eds), Referendum Democracy: Citizens, Elites, and Deliberation in Referendums Campaigns, New York, Palgrave, pp 47–64.  9 T. Bjørklund, (1982) ‘The Demand for Referendum: When Does it Arise and When Does it Succeed?’, Scandinavian Political Studies, Vol. 5, No. 2, 237–59. 10 Olaf Ruin (1996) ‘Sweden: The Referendum as an Instrument for Defusing Political Issues’, in Michael Gallagher and Pier Vincenzo Uleri (eds), The Referendum Experience in Europe, Basingstoke, Macmillan, p. 179. 11 Bjørklund, ‘The Demand for Referendum’, 248. 12 This was also the thesis of a whole book on the 1975 vote. See: Anthony King (1978) Britain Says Yes: The 1975 Referendum on the Common Market, Washington DC, American Enterprise Institute. 13 James Callaghan quoted in David Butler and Uwe Kitzinger (1976) The 1975 Referendum, London, Macmillan, p. 17.  8



The British referendum on the Alternative Vote115

was not the only time when a referendum was proposed as a mediating device. The Labour Party’s commitment to a referendum on electoral reform (which featured in the 1997 manifesto New Labour – Because Britain Deserves Better and in every manifesto since) was originally the result of an attempt to kick internal disagreement on the Plant Report into the proverbial long grass.14 So arguably was the Conservatives’ commitment to a referendum in 1997 on membership of the euro (a policy that split the Cabinet, and threatened to split the party), though the threat from The Referendum Party in that election should not be discounted.15 The decision to hold a referendum in 2011 seems to have followed the same logic. The Conservative Party – having campaigned against all forms of electoral reform – made a referendum on AV their ‘last offer’ and the Liberal Democrats (a party that had campaigned for the more proportional Single Transferable Vote) accepted this offer.16 This concession from the Conservatives came after Gordon Brown had ostensibly proposed to put AV into law without a referendum, though the latter has not been independently confirmed.17 That the Liberal Democrats choose not to go with Brown – despite this offer – may suggest that electoral reform without a referendum would be illegitimate, though it is probably equally, if not more, plausible to cite fundamental personal differences and the sense among the Liberal Democrat leadership that Gordon Brown and Labour – having just lost the election – lacked legitimacy.18 The referendum decision was a result of bargaining; an agreement to disagree. Writing about referendums in the 1970s, Dennis Kavanagh concluded that ‘the referendum had more to do with political ­expediency See Robert Blackburn (1995) The Electoral System in Britain, London, Macmillan, p. 391. 15 A. Heath, R. Jowell, B. Taylor and K. Thompson (1998) ‘Euro-­scepticism and the Referendum Party’, Crest Working Paper, No. 63, February. 16 ‘Hung Parliament: Tories’ “Final Offer” on Vote Reform’, BBC News, 10 May 2010: http://news.bbc.co.uk/1/hi/uk_politics/election_2010/8673807.stm. (accessed 17 May 2010). 17 According to the BBC journalist Michael Crick, ‘Brown held two secret meetings with Nick Clegg on the Sunday. The suggestion of AV without a referendum was made at their first meeting. My source says Brown also suggested at these talks that it might be possible to go ahead with AV without a public vote and then have a referendum later on more radical and proportional electoral reform’: http://www.bbc.co.uk/blogs/newsnight/michaelcrick/2010/07/did_labour_offer_ av_without_re.html (accessed 22 May 2010). 18 T. Quinn (2011) ‘The British General Election of 2010’, West European Politics, Vol. 34, No. 2, 410. 14

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than constitutional principle or democracy’.19 The same conclusion could safely be drawn in 2010–11. The legislation and the run-­up to the campaign Following the publication of the coalition agreement, the government moved swiftly and introduced the Parliamentary Voting System and Constituencies Bill in the House of Commons on 22 July 2010, which only met with cosmetic challenges.20 The Bill passed its Third Reading in the Commons on 2 November by 321–264. The aim of the legislation was two-­fold: 1) to reduce the number of constituencies from 650 to 600 (a Conservative manifesto commitment); and 2) to introduce (subject to a referendum) the Alternative Vote. Somewhat to the embarrassment of the Labour leader Ed Miliband (who was in favour of AV), several Labour peers (who were opposed to AV) sought to wreck the passage of the Bill in the House of Lords by imposing a 40 per cent turnout threshold. Such a threshold had effectively sealed the fate of devolution in Scotland in 1979.21 This threshold would almost certainly have condemned the proposal to failure, as it has elsewhere. In other countries there are several examples of referendums which, though they have secured majority support, have failed due to a low turnout (see next section). The amendment proposed by Labour’s (Lord) Charlie Faulkner (a former cabinet minister) failed – though only after all-­night sessions and bitter debates. The Bill was finally enacted on 16 February 2011 when it was passed by the House of Lords by 224 votes to 210. Perhaps paradoxically, it was the Labour Party’s Manifesto A Fair Future for All which had included a commitment to holding ‘a referendum on introducing the Alternative Vote for elections to the House of Commons’, in order to ‘ensure that every MP is supported by the majority of their constituents voting at each election’.22 Yet, despite their commitment to this system, many Labour politicians grew sceptical of the proposed change. While not officially hostile to AV, the Labour Party leadership seemed to have second thoughts and prominent members sowed doubts about the Dennis Kavanagh, British Politics: Continuities and Change, Oxford, Oxford University Press, p. 60. 20 Patrick Wintour (2010)‘Cross-­Party Challenge to May Date Referendum Could Hit Moves to Reduce the Number of MPs’, Guardian, 6 July, A6. 21 D. Balsom, and I. McAllister (1979) ‘The Welsh and Scottish Devolution Referenda’, Parliamentary Affairs, Vol. No. 1, 394–409. 22 The Labour Party (2010) The Labour Party Manifesto: A Future Fair for All, London, The Labour Party, 9.3. 19



The British referendum on the Alternative Vote117

commitment to changing the system and to their contribution to the campaign. Andy Burnham – Labour’s Election Campaign ­Co-­coordinator – expressed the view that Labour would not campaign for the Alternative Vote, but would instead ‘focus . . . on Scottish, Welsh and local elections taking place on the same day’.23 To be sure Ed Miliband, the party leader, threw his weight behind the change, but he was hampered by the fact that many prominent members of his party, such as Margaret Beckett (the former Foreign Secretary), John (now Lord) Prescott (the former Deputy Prime Minister), and former Home, Defence and Northern Ireland Secretary John (now Lord) Reid campaigned alongside David Cameron for a no-­vote. In the end more than 150 Labour MPs were opposed to AV, and only 50 declared their support. While many in the Labour Party campaigned against their manifesto commitment, the reverse was true for the Liberal Democrats. The small government party had forgotten their misgivings about the Alternative Vote and were actively campaigning for its introduction.24 This was a bit of a volte-­face, especially as the Liberal Democrats were at best lukewarm at the idea of introducing AV before the election. Indeed Chris Huhne, the Climate Secretary, had observed that ‘the alternative vote is not the solution’, and opined that ‘only the single transferable vote will remedy the unfairness of the present system’, though he did admit that AV was ‘a small step in the right direction’.25 Similarly Nick Clegg had referred to AV as a ‘miserable little compromise’.26 The campaign and referendum research Referendums on electoral reform are not as unsuccessful as most people may be inclined to think.27 The adage, ‘if in doubt vote no’ does not universally apply to electoral reform referendums. As shown in Table 7.3, of the twenty referendums held since 1980, ten have been successful (Andorra 1992, Russia 1993, Uruguay 1996, Ecuador 1997, New Patrick Wintour (2010) ‘Labour Will Not Campaign for Alternative Vote, says Andy Burnham’, Guardian: www.guardian.co.uk/politics/2010/nov/05/labour-­ will-­not-­campign-­alternative-­vote (accessed 14 November 2010). 24 www.libdems.org.uk/fairervotes.aspx (accessed 10 November 2010). 25 Chris Huhne (2010) ‘The Alternative Vote is Not the Solution’, Guardian, 9 February 2010: www.guardian.co.uk/commentisfree/2010/feb/09/alternative-­ vote-­not-­the-­solution (accessed 14 September 2010). 26 A. McSmith (2010) ‘Where They Stand on PR’, Independent, 6 July, A4. 27 See e.g. interview with Paul Whiteley in Nick Stevens (2010) ‘A Passion for Politics’, Britain in 2011: The State of the Nation, Swindon, ESRC, pp. 50–1: ‘in almost all referenda over the end result is a no vote’, p. 51. 23

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Table 7.3:  Outcomes of electoral reform referendums since 1980 Country

Year

Yes vote (%)

Andorra British Columbia British Columbia Canberra Ecuador Iraq Italy Italy Italy Italy New Zealand New Zealand New Zealand* Ontario Prince Edward Island Romania Russia Slovenia* St Vincent & Grenadines Uruguay

1992 2005 2009 1992 1997 2005 1993 1999 2000 2009 1992 1993 2011 2007 2005 2007 1993 1996 2009 1996

74 57 38 65 59 78 82 91 82 77 84 54 57 37 36 83 58 14 43 51

Success/Failure Success Failure due to turnout Failure Success Success Success Success Failure due to turnout Failure due to turnout Failure due to turnout Success Success Success Failure Failure Failure due to turnout Success Failure Failure Success

* The New Zealand referendum result in November 2011 is interesting and perplexing. The voters voted 57–­43 on a 73 per cent turnout to keep the present MMP system. However in a second ballot, the voters somewhat contradicted themselves. Given four options – in the event that they had voted to repeal the present system – a plurality of 46 per cent opted for FPTP. 24 per cent opted for a variant of the existing system which would have limited the seats allocated by PR lists to a mere 30 out of 120. 16 per cent wanted STV, 12 per cent AV. Reference: www.mmpreview.org.nz/ (accessed 13 November 2012). ** Multi-­option referendum; none of the options secured 50 per cent of the votes cast. Sources: Australian Electoral Commission, Elections Canada, Zentrum für Direkte Demokratie, Aarau (ZDA), Butlletí Oficial del Principat d’Andorra 1993

Zealand 1992, New Zealand 1993, Canberra 1992 and Italy 1993 – and under very special circumstances Iraq in 2005). Ten have been unsuccessful, though of these five were due to failure to meet the turnout requirement, namely in British Columbia (2005), Italy (1999, 2000, 2009) and Romania (2007). Of course, without a referendum things are much easier. Of the fifty electoral system changes enacted without a referendum, a law passed by the Czech Parliament in 2000 is the only one that was not implemented. The law was vetoed by President Havel on the grounds that it violated the constitutional protection of the principle of PR.28 Birch, F. Millard, M. Popescu and K. Williams (2002) Embodying Democracy: Electoral System Design in Post-­Communist Europe, Basingstoke, Palgrave, p. 83.

28



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While public enthusiasm for electoral reform is not great – the referendums in New Zealand in 1993, the Italian referendum in the same year, and the Uruguay poll in 1996 are the only three examples of votes that have recorded turnout of more than 70 per cent – it is inaccurate to suggest that electoral reform referendums are invariably a lost cause. Like all other referendums, polls on electoral reform are subject to ebbs and flows of popular support and the miscellaneous factors that ­determine the fate of political campaigns. It is beyond the scope of this chapter to give a blow-­by-­blow account of the campaign, and such accounts have already been published by insiders in each of the two camps.29 What is interesting in this context, and from the point of view of comparative politics, is the question of whether the referendum fits the various patterns identified by political scientists studying referendums abroad. While political science studies of referendums were relatively – not to say entirely – empirical and case-­studies based until the turn of the end of the twentieth century,30 political scientists have recently developed more advanced and comparative models and theories for studying referendums.31 While it is outside the scope of this chapter to present a thorough overview of the literature, a few key findings are useful for understanding the 2011 referendum. As suggested elsewhere by this author, referendums often follow an underlying logic and while it might be difficult to find law-­like generalities as in the physical sciences, there are certain patterns which often repeat themselves in referendum campaigns.32 Two of the most commonly recognised regularities are: • Referendums tend to be won by parties that capture the centre ground and effectively appeal to the median voter.33 Thus, the Irish referendum on divorce in 1986 was won by opponents as they See: Paul Anderson ‘Just Desserts for Pro-­AV Campaign’, Tribune, 13 May 2011, p. 9 and – on the ‘no’ side – Dan Hodges, ‘No We Can’, New Statesman, 16 May 2011, p. 37. 30 See David Butler and Austin Ranney (1994) ‘Theory’, in David Butler and Austin Ranney (eds), Referendums Around the World. The Growing Use of Direct Democracy, London, Macmillan, p. 5. 31 See e.g. Aleks Szczerbiak and Paul Taggart (2004) ‘The Politics of European Referendum Outcomes and Turnout: Two Models’, West European Politics, Vol. 27, No. 4, 557–83. 32 Qvortrup, A Comparative Study of Referendums. 33 A. Downs, (1957) An Economic Theory of Democracy, New York, Harper Collins. 29

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s­ uccessfully appealed to the centre ground and turned the issue into a matter of social security rather than a question about Catholic philosophy;34 • Citizens often decide on the basis of cues, such as ‘who’s behind it’ rather than on an analysis of the issues,35 thus referendums are often won because voters use short-­cuts to acquire information rather than studying the finer points of the issues. The median voter and the AV referendum Proponents of referendums – who have often argued that referendums lead to a more mature politics – may have been shocked by the campaign and its tone, attacks and apparent disinformation. The ‘no’ campaign more or less invented – by their own subsequent admission36 – a claim that the introduction of AV would cost more than £250 million. And the ‘yes’ side – despite Deputy Prime Minister Nick Clegg’s call for a ‘mature debate’ – compared the Conservative Chairman Baroness Sayeeda Warsi to Dr Josef Goebbels!37 These colourful interventions may have be entertaining, but they are more interesting because they can be interpreted as vindications – or perhaps, better, illustrations – of some of the trends and tendencies identified in other referendums around the world. Realising that the ‘Yes-­ to-­ fairer-­ votes’ side were in line with the median voter (a majority of voters were in favour of electoral reform38), the ‘No-­to-­AV’ camp effectively utilised a familiar tactic of referendum campaigns, namely that of capturing the middle ground by changing the agenda. This tactic had been tried before in similar referendums. In 1993, the opponents of electoral reform in New Zealand sought with some success to change the agenda to economic issues – and the alleged reactions of the market – by introducing the Mixed Member System.39 This tactic differed considerably from the tactic followed in R. Darcy and M. Laver (1990) ‘Referendum Dynamics and the Irish Divorce Amendment’, Public Opinion Quarterly, Vol. 54, No. 1, 5. 35 Bowler and Donovan, Demanding Choices. 36 Hodges, ‘No We Can’. 37 Daily Telegraph (2011) Leader, ‘Referendum Voters Want Clarity – Not Mud-­ slinging’, Daily Telegraph, 25 April, p. 14. 38 Reuters/Ipsos MORI Political Monitor – AV Questions, published 25 February 2011, fieldwork 18–20 February 2011. 39 Jonathan Boston, Stephen Church, Stephen Levine, Elizabeth McLeay and Nigel Roberts (2003) New Zealand Votes: The General Election of 2002, Wellington, Victoria University Press. 34



The British referendum on the Alternative Vote121

the first r­eferendum in 1992, in which the proponents of reform had been allowed to outline the problems with the first-­past-­the-­post system (which on two occasions had allowed the party that did not win the highest number of votes to form a majority government).40 Although the ‘no’ side in New Zealand lost, they were able to narrow the margin substantially to 54–­46 – a considerable feat given that the first referendum had been lost by a 84.7−15.3 per cent margin.41 This tactic of winning the middle ground, which also was employed in British Columbia to defeat the introduction of STV in 2009, ensured a reversal of the 2005 result that had resulted in a victory for the pro-­reformers.42 No-­ to-­ AV combined two strategies. The first of was focused on the unpopularity of Liberal Democrat leader Nick Clegg. The main leaflet from the ‘no’ campaign featured an unflattering photograph of Mr  Clegg holding a placard with a pledge to vote against tuition fee rises and the caption ‘Nick Clegg is unpopular because he broke his promises’, a reference to the Liberal Democrats’ much-­debated decision to vote for student fees after the election. This much-­publicised leaflet – as well as billboards with the same message – effectively turned the poll into a referendum on the popularity – or otherwise – of the Liberal Democrat Leader.43 In addition to this strategy, No-­to-­AV focused on the alleged economic implications of a yes vote. The opponents of electoral reform relied on what a senior ‘no’ campaigner called a ‘simple, if contentious . . . figure of 250 million’44 (a figure that suggested that the cost of AV would be over £250 million due to the cost of voting machines). In full pursuit of their strategy, the opponents explained that the cost of voting machines and the cost of explaining the system to the voters could pay for 2,503 doctors, 35,885 hip replacements or 69,832 school places.45 With these claims – dubious though they were – the No-­to-­AV camp effectively won the battle over public opinion, and was able to set the agenda to which the Yes-­to-­fairer-­votes side had to react and respond. Yes-­ to-­ fairer-­ votes – dominated by the Liberal Democrats and reform groups such as Unlock Democracy and the Electoral Reform S. Levine and N. Roberts (1993) ‘The New Zealand Electoral Referendum of 1992’, Electoral Studies, Vol. 12, No. 2, 158–67. 41 LeDuc, The Politics of Direct Democracy, p. 65. 42 CBC News, 12 May 2009. 43 No-­to-­AV (2011) ‘Keep One Person One Vote: Vote No in the Referendum on 5 May’, London, No Campaign Ltd, p. 6. 44 Hodges, ‘No We Can’. 45 No-­to-­AV, ‘Keep One Person One Vote’ p. 2. 40

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Table 7.4:  Average of opinion polls on the introduction of AV in the UK, 2010–2011 Date

Yes

No

Don’t know

May 2010 Oct 2010 Nov 2010 Dec 2010 Jan 2011 Feb 2011 Mar 2011 Apr 2011

59 41 48 36 37 40 33 39

32 36 35 30 20 30 30 53

10 18 17 34 37 30 30  9

Sources: Angus Reid, YouGov, ComRes, ICM

S­ ociety – took the bait, and reacted with fury. Chris Huhne threatened legal action – an empty threat as the Political Parties, Elections and Referendum Act 2000 does not give the Electoral Commission powers to intervene.46 This intervention effectively ensured that the claim became the focus of the debate. By reacting to the claim and by seeking to counter it, the proponents of reform moved the focus away from the discussion about the electoral system (on which they were in agreement with the voters) to the issues of economic reform. Whether it was the £250 million claim or the targeting of Nick Clegg ‘wot won it’ is debatable, but it is inarguable that the ‘yes’ campaign never recovered from the claim, and that they almost immediately lost the lead in the polls, which they had held – and even deepened – since polling on the issue began in earnest in December 2010. What is surprising, especially given that the ‘yes’ campaign was comprised of seasoned campaigners (like Gordon Brown’s former spin doctor Paul Sinclair) was that the ‘yes’ side did not seek to come up with a counter-­claim. The truth is, perhaps, that no issue was more salient than the No-­to-­AV’s second poster campaign ‘No to President Clegg’; a poster that played directly to the Labour voters’ hatred of the Liberal Democrat leader. The ‘no’ strategy – based on focus groups conducted by the Australian pollster Lynton Crosby (a man who made his name by securing four consecutive electoral victories for the centre right under the AV system in Australia47) – was effectively based on the most salient issues of the day. Andrew Grice (2011) ‘Huhne Warns of Legal Action over Claims by No to AV Campaign’, Independent, 25 April, A10. 47 Julian Glover (2008) ‘The Jeeves to Johnson’s Bertie Wooster: The Man Who May Have Got Him Elected’, Guardian: www.guardian.co.uk/politics/2008/ may/02/london08.boris (accessed 2 May 2011). 46



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Conversely, the Yes-­to-­fairer-­votes slogan, ‘Make Your MP Work Harder’ had not been tested by focus groups.48 Moreover, many MPs found it hard to campaign under a banner that effectively said that they were lazy and corrupt, and the Yes-­to-­fairer-­votes ‘bottled it and shelved it’, when ‘MPs kicked up about their anti-­MP line’.49 One of the reasons that the Yes-­to-­fairer-­votes strategy never got off the ground could have been that the proponents were short of cash, but this was not the case. In December the Yes-­to-­fairer-­votes campaign reportedly outspent their opponents by a factor of 3–1, and the ‘no’ camp struggled financially. As one ‘no’ campaigner lamented, ‘We couldn’t sign off budgets, which meant that we couldn’t buy ad-­space, and that meant that we couldn’t formally launch’.50 In the end the No-­ to-­AV camp raised funds, and outspent their opponents by a 2:1 factor. The ‘no’ camp spent £3.4 million compared to £2.6 million spent by the ‘yes’ campaign.51 Yet the disparity in spending, say, when compared to the 1975 referendum in which the pro-­marketeers outspent their opponents by a factor of 10:1 and were ‘pitifully short of money’,52 was not great. Both camps had received grants from the Electoral Commission, and it would difficult to sustain the view that the proponents lost due to lack of funding. Of course, elsewhere, there is some evidence that campaigns can be won by the biggest spenders. But the correlation between spending and outcome is far from linear or conclusive.53 Indeed, there is no evidence from comparative data that suggest that the richer side inevitably wins. What matters is not the amount of money spent, but rather how the money is being spent.54 The 2011 referendum is no exception to the rule. The ‘yes’ camp lost because they were unable to win the median voter and failed to target the swing voters, and because they made a number of cardinal mistakes, such as uncritically relying on slogans that failed to capture the headlines or appeal to those who would have been positively disposed towards reform of the electoral system. 50 51

Personal communications, Quintin Oliver, Yes-­to-­fairer-­votes Northern Ireland. Dan Hodges (2011) ‘Creating a Landslide’, Total Politics, Issue 36, p. 21. Hodges, ‘No We Can’. www.guardian.co.uk/politics/2011/may/02/no-­to-­av-­vote-­tory-­party-­funding (accessed 6 May 2011). 52 Butler and Kitzinger, The 1975 Referendum. 53 Elizabeth Gerber (1999) The Populist Paradox: Interest Group Influence and the Promise of Direct Democracy, Princeton, Princeton University Press, p. 110. 54 D. Lowenstein (1982) ‘Campaign Spending and Ballot Propositions: Recent Experience, Public Choice Theory and the First Amendment’, UCLA Law Review, Vol. 29, 505. 48 49

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The defeat of the ‘yes’ campaign was in large measure the result of a failure to use communication strategies that money can buy. As a commentator put it ‘the yes-­campaign never managed to make better arguments for AV than that it would “make your MP work harder” (although it never explained how)’.55 But there were other reasons for the defeat. Short-­cuts, cues and policy preferences Recent studies of referendums have taken on board a body of theoretical research known as the ‘reasoning Voter Paradigm’.56 The argument in this body of literature is that voters, rather than acquiring costly information about referendums (and candidates), use ‘information short-­cuts’ and base their decisions on stated preferences of friends, elites and even celebrities whom they trust or otherwise.57 The ‘yes’ camp – whether consciously or not – based their campaign on this tactic. It was assumed – though this was apparently not tested in focus groups58 – that voters would react positively to celebrity endorsements. Thus Yes-­to-­fairer-­votes enlisted the support of Oscar-­winning actor Colin Firth (who informed the voters that the Oscars were decided by the Alternative Vote59) and the public campaign was dominated by the comedian Eddie Izzard and the actor Richard Wilson of the aptly named television series One Foot in the Grave. But Yes-­to-­fairer-­votes did not anticipate – and seemed unaware – that such endorsements have had negative effects elsewhere. In Sweden in 2003, the support of prominent businessmen and celebrities contributed to giving the ‘yes’ side an elitist outlook that effectively alienated the ‘ordinary’ voters, and contributed to the defeat of the proposal to introduce the Euro.60 The same was seemingly true for Britain. But there are other cues than those of celebrities. The cues of the political parties are often assumed to be an indicator of how citizens vote. Anderson, ‘Just Desserts’. See Bowler and Donovan, Demanding Choices. 57 Arthus Lupia (1994) ‘Short-­cuts Versus Encyclopaedias: Information and Voting Behaviour in California’s Insurance Reform Elections’, American Political Science Review, Vol. 63, No. 1, 63. 58 I owe this information to Mr Quintin Oliver, who ran Yes-­to-­fairer-­votes in Northern Ireland. 59 www.nextleft.org/2011/02/av-­is-­good-­enough-­for-­oscars.html (accessed 22 May 2011). 60 A. Widfeldt (2004) ‘Elite Collusion and Public Defiance: Sweden’s Euro Referendum in 2003’, West European Politics, Vol. 27, No. 3, 503–17. 55 56



The British referendum on the Alternative Vote125

In referendums on European integration, for example, voters have often taken cues from party leaders.61 This is also true for referendums elsewhere. Based on a study of the referendum in term-­limits in Washington in 1991, Jeffrey Karp found that ‘the probability of supporting the initiative [depended] on feelings towards Speaker Tom Foley. Those with negative feelings towards Foley [were] almost twice as likely to vote for the initiative [which Foley opposed]’.62 Whether the same is generally the case in referendums on electoral change is a more difficult question to ask as the number of cases is significantly smaller. But based on the limited comparative evidence there are indications that this is not ­generally the case. Voters in referendums on electoral change at the national level have  not tended to follow cues, but have seemingly departed from the party line. In Romania President Traian Ba˘sescu organised the referendum on the electoral system on the same day as the European Parliamentary Elections in 2007, and although he won a majority for his preferred option (a French two-­ round system), his party ALDE lost  its  two seats in  the European Parliament on the same day. The referendum, which was ostensibly intended as a vehicle for gaining momentum for his party, did not help. The same pattern was observed much earlier in the Republic of Ireland in 1959, when Eamon de Valera decided to call a referendum on the introduction of the first-­past-­the-­ post electoral system on the same day as he contested the presidency,63 and in 1969 when Fianna Fail lost another referendum on the same issue, but won the election. Further, in New Zealand 1992 and in 1993 there was very little correlation between party preferences and voting choice in the referendum – indeed in 1993 the old parties won 83 per cent of the votes in the General Election on the same day as they lost the referendum.64 Does Britain fit the pattern? The Conservative Party was the only Hobolt, ‘Taking Cues for Europe?’. Jeffrey Karp (1998) ‘The Influence of Elite Endorsements in Initiative Campaigns’, in Shaun Bowler, Todd Donovan and Caroline Tolbert (eds), Citizens as Legislators, Columbus, Ohio State University, p. 161. 63 Maurice Manning (1978) ‘Ireland’, in David Butler and Austin Ranney (eds), Referendums in Practice and Theory, Washington DC, American Enterprise Institute, pp. 193–210. 64 John Colinge (1994) ‘Party-­ Perspectives: National’, in John Vowles and Peter Aimer (eds), Double Decision. The 1993 Referendum in New Zealand, Occasional Paper, University of Wellington, p. 15 and J. Vowles (1995) ‘The Politics of Electoral Reform in New Zealand’, International Political Science Review, Vol. 16, No. 1, 95–115. 61 62

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Table 7.5:  Result of the 2011 referendum on the Alternative Vote Region Scotland North-­east North-­west Yorks/Humber East Midlands West Midlands Wales Eastern London South-­east South-­west Northern Ireland

Turnout

Yes (%)

No (%)

1,975,549 762,300 2,048,744 1,530,921 1,432,291 1,629,969 946,942 1,839,419 1,860,253 2,786,488 1,797,276 668,870

36.4 28.1 30.2 31.3 28.7 28.5 34.5 29 39.5 29.5 31.5 43.7

63.6 71.9 69.8 68.7 71.3 71.5 65.5 71 60.5 70.3 68.5 56.3

Source: Electoral Commission 2011

political party to oppose the referendum. Based on the ‘elite cue theory’ espoused by Karp we would expect that the voters in conservatively dominated areas – i.e. areas where the Tories tend to win parliamentary representation – would have been the areas most likely to have rejected the introduction of AV. There is some indication that this was the case. The south-­east duly rejected the introduction of AV by one of the highest margins. The same rejection was equally unequivocal in the Labour heartlands in the north. The only thing that suggests that the voters did not take cues come from the south-­west, traditionally a heartland area for the Liberal Democrats. Here, in areas where one would, perhaps, have expected a stronger showing, an equally high number voted no (see Table 7.5). Only in Scotland – where the SNP campaigned for AV and won a majority of seats in the Scottish Parliament elections on the same day – was there an indication that voters did not take cues. Needless to say, we cannot extrapolate from aggregate figures to individual preferences. To do so would be an ecological fallacy.65 But the indications suggest that voters were taking cues from parties, as suggested by Karp. The prominent constitutionalist – and advocate of referendums – A.V. Dicey once suggested that voters would be able to ‘distinguish between measures and men’,66 and would not be swayed by party allegiances. This might have been the case in Ireland in 1959, in Kramer (1983) ‘The Ecological Fallacy Revisited’, American Political Science Review, Vol. 77, No. 1, 1. 66 Dicey, ‘Ought the Referendum to be Introduced into England?’, 507. 65



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New Zealand in 1993 and in Romania in 2007. It was seemingly not the case in the United Kingdom in 2011. Bare-­knuckle fight or public spirit? The referendum in 2011 was a tough political battle. No quarter was given, and none was taken. The contrast to the only previous nationwide referendum was seemingly marked. Vernon Bogdanor has described how the 1975 campaign ‘encouraged a sense of social unity by enabling some political activists to reach out across the party lines and establish contact with those holding similar views’.67 By contrast the 2011 referendum was described by Vince Cable – a Liberal Democrat cabinet minister – as ‘ruthless, calculating and really rather tribal’.68 It would appear that the 2011 referendum did not live up to the praise metered out to such exercises in direct democracy by the likes of Professor Bogdanor, and that it was closer to the description offered by American political scientist David Magleby who concluded that referendums serve to ‘intensify conflict and lead to a politics of confrontation’.69 The 2011 referendum was, it must be said, a bare-­knuckle fight. Most referendums are.70 Yet the conclusion reached by Vince Cable is not entirely accurate, and while the campaign was undeniably tough and not a shining example of public spirit and deliberative democracy, it remains the case that erstwhile enemies from the Labour and the Conservative parties cooperated. The ‘no’ campaign was described as ‘a Conservative head with a Labour heart’,71 and there were, according to press reports, several remarkable ‘features of cross party alliances’.72 In 1975, Butler and Kitzinger found that almost every group seemed to have come to the ‘realisation how easy it was with a little effort, to find common ground Vernon, B. Bogdanor The People and the Party System: The Referendum and Electoral Reform in British Politics, Cambridge, Cambridge University Press, p. 84. 68 Vince Cable quoted in Bagehot (2011) ‘Pride After the Fall’, The Economist, 14 May, p. 42. 69 David Magleby (1984) Direct Legislation: Voting on Ballot Propositions in the United States, Baltimore, MD, Johns Hopkins University Press, p. 181. 70 For example, the 1986 referendum in Ireland was described by two prominent social scientists as ‘shrill, bitter, sectarian, divisive and unpleasant’, Darcy and Laver, ‘Referendum Dynamics’, 17. 71 Hodges, ‘No We Can’. 72 Ian Burell (2011) ‘The Mixed Messages of the AVs and the AV Nots’, Independent, 25 April, B10. 67

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on a range of issues’.73 The same conclusion could be drawn from the 2011 referendum. Conclusion Based on a statistical analysis of all the electoral reforms since 1980, the present chapter finds evidence to suggest that referendums are more common in Commonwealth countries. However, while the British referendum in 2011 thus fits a general statistical pattern, there is evidence to suggest that the decision to submit the introduction of the Alternative Vote to a vote was in large measure the result of an internal bargaining process, which fits the theoretical model developed by Norwegian political scientist Tor Bjørklund. Contrary to the impressions, referendums are not generally unsuccessful. Of the nineteen referendums on electoral reform since 1980 nine have been successful and ten have been unsuccessful, and of these five, or half of them, failed due to turnout requirements and not due to outright rejection by the voters. The campaign showed many traits seen in other similar referendums. The evidence from the campaign suggests that the opponents of AV were able to set the agenda and convey the impression that they represented the median voter. As in Ireland in 1986, the ‘no’ campaign did this by changing the agenda and the focus of the debate away from the issue and into a debate about unrelated issues such as the economy and the unpopular cuts in public spending. As proposed by proponents of the Reasoning Voter Paradigm, the voters took cues from politicians’ positions on the issue, and the ‘no’ side effectively used this tactic to turn the referendum into a vote of no confidence in the exceptionally unpopular Liberal Democrat leader Nick Clegg. The result was a massive defeat. Does this mean that electoral reform is a dead issue in British politics? It is too soon to tell. It is certain that none had much enthusiasm for the Alternative Vote, but given the lack of enthusiasm among proponents of AV and the fierce determination shown by No-­to-­AV it is perhaps appropriate to quote Nicoló Machiavelli’s quip about the difficulties of undertaking large-­scale political change: There is nothing harder to undertake, nothing more likely of failure, nothing more risky to pull off, than to set up oneself as a leader who plans  to found a new system of government. For the founder makes enemies of those who are doing well under the old system, and has Butler and Kitzinger, The 1975 Referendum, p. 131.

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The British referendum on the Alternative Vote129 only lukewarm support from those who hope to do better under a new one . . . So it is that whenever those who are enemies of a new order have a chance to attack it, they do so ferociously, while others defend it half-­ heartedly.74

N. Machiavelli (1994) ‘The Prince’, in Machiavelli: Selected Political Writings, Indianapolis, Hackett, pp. 19–20.

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Judicial review of direct democracy

So suppose we introduce initiatives and referendums on a larger scale. Suppose that we – in one form or other – adopt a system whereby the people, or a specified proportion thereof, be allowed to introduce legislation. What would happen? What has happened elsewhere? One problem we have not considered, but which may be very relevant, is how the courts would react. In Britain, the courts cannot interfere with decisions made by the legislature under the doctrine of parliamentary sovereignty, but what if it were the people who enacted legislation? We can but guess what would happen, but it is conceivable, if the American experience is anything to go by, that the courts would – on occasion – strike down citizens’ legislation. So, while the American experience may not be what lies in wait it might be illustrative to consider the experience of judicial review in the United States. Sometimes they are the unaccountable elitists in robes who meddle in politics where they do not belong. Sometimes they are the bulwarks of liberty and the champions of the citizens against abuses of power. The standard case for judicial review has been stated thus by Arend Lijphart: one can argue that a written and rigid constitution is still not a sufficient restraint on parliamentary majorities, unless there is an independent body that decides whether laws are in conformity with the constitution. If parliament itself is the judge of the constitutionality of its own laws, it can easily be tempted to resolve any doubts in its own favour. The remedy that is usually advocated is to give the courts . . . the power of judicial review – that is, the power to test the constitutionality of laws passed by the national legislature.1 Lijphart, Democracies, p. 192. The classical case for judicial review is developed by Alexander Hamilton in ‘Federalist No. 78’, in A. Hamilton, J. Madison and J. Jay (1987), The Federalist Papers, London, Penguin.

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The role of the courts is controversial, and has always been so. Judges in all democratic countries are used to the vilification as well as the praise that goes with adjudicating on controversial issues which divide the electorate. Yet in an age when all political authority is supposed to derive from the people – at a time when voters increasingly are permitted to vote in referendums and initiatives2 – the growing power of judges is a startling development. What is especially startling is that the courts increasingly are encroaching upon decisions made by the citizens themselves – and that they feel that their encroachments are democratically justified. This development calls for a justification of the courts’ increasing tendency to strike down decisions made by the people. In 1997, the Ninth Circuit Court, in Jones v. Bates, ruled that the average voter could not have understood proposition 140 (a ballot measure which imposed lifetime term limits on certain state positions). Jones v. Bates is but one of many recent examples of judicial intervention in the initiative process. In the past decade over half of all voter-­approved initiatives (in the states which most frequently use the initiative) have been challenged in the courts (54 per cent), and in more than half of the cases (55 per cent), the courts have invalidated part or all of the challenged initiative. It should be noted that invalidation, to a large extent, is correlated to the subject matter of the initiative. Tax initiatives and environmental protection initiatives have been far less likely to be invalidated than initiatives that target minorities or political speech. Five out of eight initiatives affecting minorities have been invalidated in part or entirety. All initiatives concerning campaign finance reform have been invalidated. Only one of seven initiatives dealing with tax issues has been invalidated.3 This trend raises a number of important problems: how should the courts adjudicate on laws enacted directly by the people? Should the courts apply ‘strict scrutiny’ assuming the voters’ alleged lack of knowledge? Or, should the courts accord special deference to laws enacted by the citizens? Citizen lawmaking is arguably different from legislation by representatives. Citizens do not, and cannot, devote their The number of initiatives appearing in statewide ballots increased from 67 in 1992, to 68 in 1994, to 92 in 1996. Elisabeth Gerber, ‘Pressuring Legislatures Through the Use of Initiatives: Two Forms of Indirect Influence,’ in Bowler et al., Citizens as Legislators, p. 191.  3 See Kenneth Miller (1999) ‘The Role of the Courts in the Initiative Process: A Search for Standards’, Paper delivered at the Annual Meeting of the American Political Science Association, 2–5 September, p. 3.  2

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entire lives to deliberations and discussions.4 Some scholars have seen this as an argument for stricter scrutiny of laws enacted directly by the people.5 The legal scholar Mihui Pak has reached the conclusion that: ‘Due to the lack of procedural safeguards requiring deliberation and thought in the initiative process and the absence to a concrete body, the courts ought to look for indications of “considered evaluation”, construe initiatives narrowly and apply strict scrutiny when reviewing popularly enacted measures.’6 This chapter challenges Pak’s conclusion. It is argued that his conclusion is fundamentally flawed as it is derived from empirically disputed premises unsupported by political scientists. But before we criticise Pak we need to give him the benefit of the doubt and present his case as ­dispassionately as we can. The case for judicial review of direct legislation There is (paradoxically) an abundance of democratic arguments for limiting popular decision-­making for the sake of the citizens themselves. James Madison opined in ‘Federalist No. 63’ that: There are particular moments . . . when the people stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn.7

The Federalist Papers saw judicial review as one of the remedies, which would protect the people ‘against their own temporary errors and Some have argued that new technology could alter this conclusion. See Ian Budge (1996) The New Challenge of Direct Democracy, Cambridge, Polity Press. Richard Katz has challenged this position: new technology ‘may make instantaneous communication possible to millions of people . . . but it cannot add hours to the day. Assuming citizens would sit eight hours a day for five days a week . . . (the) town meetings could only hear from 2400 citizens a day assuming one minute each (hardly adequate time for a rational argument to be expressed) . . . In purely political terms the vast majority of citizens would not speak.’ Richard Katz (1997) Democracy and Elections, Oxford, Oxford University Press, p. 96.  5 Julian Eule (1990) ‘Judicial Review of Direct Democracy’, Yale Law Journal, Vol. 99, No. 7, 1503–55.  6 Mihui Pak (1999) ‘The Counter-­Majoritarian Difficulty in Focus: Judicial Review of Initiatives’, Columbia Journal of Law and Social Problems, Vol. 32, 273.  7 James Madison, ‘Federalist No. 63’, in Madison et al., The Federalist Papers, p. 371.  4



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­delusions’.8 The courts could, in Alexander Hamilton’s words, be ‘a safeguard against the effects of occasional ill humors in the society’.9 The problem of judicial review of direct legislation is thus particularly warranted. For while initiatives may appear to be the unabridged will of the people they are, in fact, a threat to democracy. For, or so it is argued, the people are ‘under-­or misinformed, lost, bewildered, overly self-­interested, or simply apathetic’.10 It would, therefore, seem that the judges should carefully assess whether the enacted measures in every case really represent the will of the ‘people’. For, as Swiss philosopher Jean-­Jacques Rousseau once wrote, ‘We always want what is advantageous for us but we do not always discern it. The people is never corrupted, but it is often misled.’11 A case can, consequently, be made for a standard of review, which ensures that initiatives are a reflection of the popular will. That is, the courts should – following the Supreme Court in Greene v. McElroy – apply ‘strict scrutiny’. In other words, ‘in areas of doubtful ­ constitutionality . . . [there should be] careful and purposeful ­consideration by those responsible for enacting . . . our laws’.12 The problem is, however, that the courts have adjudicated differently on ballot initiatives. Some state courts have shown considerable deference to initiatives, whereas federal courts ‘appear more willing to invalidate initiatives’.13 The explanation might be that federal judges, who typically have lifetime tenure, and hence enjoy a large measure of insulation from public opinion, are more wary about offending the voters than judges who have to face the electorate – as is the case for state judges.14 Madison, ‘Federalist No. 63’, p. 371. Alexander Hamilton, ‘Federalist No. 78’, in Madison et al., The Federalist Papers, p. 441. 10 Jim Rossi (1997) ‘Participation Run Amok: The Costs of Mass Participation for Deliberative Agency Decision-­Making’, Northwestern University Law Review, Vol. 92, 215–16. 11 Jean Jacques Rousseau (1968) The Social Contract, London, Penguin Books, p. 73. 12 Green v. McElroy, 360 U.S. 474, 507 (1959). Yet the fundamental question is if the courts can discern the true intentions of the voters. Judge Cornelia Kennedy has challenged this view: ‘Since the court cannot ask voters why they voted that way, a court has no way of ascertaining what motivated the electorate.’ Kinksey v. City of Jackson, 663 F2d, 662 (5th Cir.1981), quoted in Eule, ‘Judicial Review of Direct Democracy’, 1561. 13 Craig Holman and Robert Stern, ‘Judicial Review of Ballot Initiatives: The Changing Role of State and Federal Courts’, Loyola Los Angeles Law Review, Vol. 31, 1239. 14 Miller, ‘The Role of the Courts’, p. 3.  8  9

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The sitting judges of the highest courts in all but two of the states that permit initiatives (Maine and Massachusetts) are ultimately held accountable to the voters for their decisions. It is not difficult to understand that these judges have been reluctant to strike down initiatives.15 This difference in the pattern of adjudication raises important questions, which go to the very heart of the justification for judicial review. Alexander Hamilton argued, in ‘Federalist No. 78’: ‘[to] avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them’.16 The observed variation in the patterns of adjudication is a far cry from Alexander Hamilton’s ideal. This lack of standards is a fundamental problem, which ought to be resolved through the adoption of a common standard of judicial review of initiatives. The question is if ‘strict ­scrutiny’ – as advocated by Pak – is a legitimate principle of adjudication, i.e. if judicial review of initiatives can and should be based on the premise that the voters are ignorant of the contents of the laws that they enact. Judicial review of initiatives is a controversial issue among judges. Some judges have found it illegitimate that the least democratic of the political institutions can overrule the decisions of the people. As one judge has put it: ‘[a] system which permits one judge to block with a stroke of a pen what 4,736,180 state residents voted to enact tests the integrity of our constitution’.17 Others have noted that initiatives ought to be treated exactly as enactments by elected legislators. The Supreme Court seems to prefer this interpretation. In Citizens Against Rent-­Control/Coalition of Fair Housing v. The City of Berkeley, it ruled that it is ‘irrelevant that the voters rather than a legislative body enact(s) [the law] because the voters may no more violate the constitution by enacting a ballot measure than a legislative body may by enacting legislation’.18 Still others believe that initiatives should be scrutinised more closely than laws enacted by legislatures, as the voters (allegedly) lack the cogni Eule, ‘Judicial Review of Direct Democracy’, 1579. Hamilton, ‘Federalist No. 78’, p. 442. 17 Coalition for Economic Equality v. Wilson, 110F 3d, 1431, 1437 (9th Cir. 1997). 18 Citizens Against Rent Control/Coalition of Fair Housing v. City of Berkeley, 454, U.S. 290, 295 (1981). This ruling seems to be consistent with the precedent established in Pacific States Telephone and Telegraph Co. v. Oregon, 223 U.S. 118 (1912), in which the Supreme Court ruled that Oregon’s use of the i­nitiative to  enact a gross-­receipts tax was consistent with the principal of republican ­government. 15 16



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tive ability to reach informed decisions. Pak is a proponent of the latter view. The question is not whether judicial review of even the most popular measures is permissible.19 The question is rather if the judges can adjudicate on the basis of the premise that the voters are ignorant of the measures that they assent to in initiatives. Are the courts, in other words, ‘justified in striking down direct legislation on the grounds that the voters lack the competence to decide issues while they, the judges are viewed as better positioned to deliberate?’20 Are the voters as incompetent as Pak assumes? This is not primarily a legal question, but an empirical question, which requires us to consult the findings of political scientists rather than legal precedents. Reasoning voters Studies of electoral behaviour have traditionally been based on the assumption that decision-­makers had to possess encyclopaedic knowledge of the issues.21 Contemporary political scientists have challenged this assumption in recent years, by emphasising that voters cope with information demands by using information short-­cuts.22 The voters do not need in-­depth (encyclopaedic) knowledge about the issues to make informed decisions. Reasoning voters are approximately rational, trying to come to terms with decisions about which they are vaguely informed; that is, they seek to decide rationally ‘with limited information and processing capacity’.23 The ‘reasoning voter’ is thus a description of ‘voters [who] actually do reason about parties, candidates and issues’ by investing their votes in collective goods on the basis of ‘costly and imperfect information under conditions of uncertainty’.24 On this see Eule, ‘Judical Review of Direct Democracy’. Pak, ‘The Counter-­Majoritarian Difficulty in Focus’, 245. 21 For a review see Bowler and Donovan, Demanding Choices, pp. 21–42. The traditional view of the ignorant voter derives from the Michigan school’s study of the American voters in the 1950s. See Angus Campbell et al. (1979) The American Voter, Cambridge, MA, Harvard University Press. 22 For a review see Franz Urban Pappi (1996) ‘Political Behaviour: Reasoning Voters and Multi Party Systems’, in Robert Goodin and Hans-­ Dieter Klingemann, The New Handbook of Political Science, Oxford, Oxford University Press, pp. 255–75. 23 P. Snidermann, R.A. Brody and P.E. Tetlock (1991) Reasoning and Choice, New York, Cambridge University Press, p. 8. 24 S.L. Popkin (1994) The Reasoning Voter, Chicago, Chicago University Press, pp. 7–10. 19 20

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As contrasted with private investors these ‘public’ investors have less incentive to gather costly information.25 They therefore look for short-­ cuts, that is for ways in which they can make optimal decisions on the basis of inexpensive information. These insights have recently entered the sub-­ area of initiative and referendum studies through seminal work by Arthur Lupia. Lupia writes: ‘As an alternative to the costly acquisition of encyclopedic information, voters may choose to employ information shortcuts. For example voters can acquire information about preferences or opinions of friends, co-­workers, political parties or groups, which they may then use to infer how a proposition will affect them.’26 In his study Lupia demonstrated that apparently ill-­informed voters, who had knowledge of the insurance industry’s preference about insurance regulation initiatives, had opinions which were nearly identical to those of well-­informed voters (within 3 per cent or less).27 These findings have been corroborated in a recent study by Shaun Bowler and Todd Donovan, in which the authors show that ‘voters can and do think about and decide upon propositions in ways that make sense and in ways that take advantage of readily available information’.28 One of the most frequently cited cues is elite endorsements: the voters – as we saw – do not study the proposals in detail, they rather base their decisions on elite cues.29 These findings do not prove that voters deliberate, nor that they evaluate policies from an objective perspective. Yet the findings indicate that the voters have the cognitive ability to respond to the steep information demands presented to them, and that they are likely to reason and vote in accordance with their preferences. Pak finds – quoting Thomas Cronin – that very few voters read the ballot pamphlet. In contrast, ‘legislators spend weeks in committees reviewing the law and debating its impact’.30 It would follow from this that representative government is preferable to citizen lawmaking.31 This For a classical discussion of the information problem see Anthony Downs (1957) An Economic Theory of Democracy, New York, Harper. 26 Lupia, ‘Short-­cuts Versus Encyclopaedias’ p. 63. 27 Lupia, ‘Short-­cuts Versus Encyclopaedias’, p. 71. 28 One of the paradoxical findings in these studies has been that voters can use information from advertisements. Campaign spending does not – according to these findings – induce the voters to vote for the richer side. Advertisements rather provide the voters with cues which enable them to make up their minds. See Bowler and Donovan, Demanding Choices, p. 165. 29 Jefrey Karp (1998) ‘The Influence of Elite-­Endorsements in Initiative Campaigns’, in Bowler et al., Citizens as Legislators, p. 161. 30 Pak, ‘The Counter-­Majoritarian Difficulty in Focus’, 254. 31 For a similar conclusion see Magleby, Direct Legislation, p. 181. 25



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conclusion is, however, debatable, as it is based on empirically inaccurate data. A recent study reports that 54 per cent of voters read the ballot pamphlet. The pamphlet is thus the most cited source of information, ahead of newspaper editorials (47 per cent), TV editorials (33 per cent) and friends (22 per cent).32 Moreover surveys indicate that the voters not only rely on short-­cuts, but that they, in fact, have a considerable knowledge of the issues: ‘53 per cent of the Colorado voters said they were somewhat informed and an impressive 37 per cent said they were very informed.’33 It seems, therefore, difficult to sustain the objection that the voters lack the competence to decide on ballot measures. Pak’s line of reasoning seems to be based on a Burkean notion of the legislator. Yet it is questionable if this elitist conception of democracy is defensible, or even realistic, as we have already discussed above.34 Recent studies support earlier observations; legislators are less than fully informed when they cast their votes. They often vote on bills they may not have read. In the main their decisions are anchored in pressure from constituents, committee chairs and party leaders.35 This lack of knowledge among the elected representatives should – according to some – have implications. William Riker and Berry Weingast have thus made a case for stricter judicial scrutiny of laws enacted by legislatures, on the grounds that the representatives fail to represent the majority of the people.36 These studies, which are based on empirical evidence, make it difficult to sustain Pak’s case for ‘strict scrutiny’ of the initiative process. If the outcomes of initiatives were produced by voter ignorance, as argued by Pak, then a case for strict scrutiny could have been made. However voters enact laws ‘as if’ they understand the issues. The view that ­‘initiatives . . . trigger a harder judicial look’ (as the voters are less knowledgeable than the legislators) is, therefore, ill-­founded.37

Bowler and Donovan, Demanding Choices, p. 56. Dan Smith (1999) ‘Talking Notes’, Paper presented at The National Initiative and Referendum Conference, The Washington Court Hotel, Washington DC, 6–8 May. 34 James Buchanan and Gordon Tullock (1962) The Calculus of Consent, Ann Arbor, University of Michigan Press, p. 283. 35 John Kingdon (1989) Congressmen’s Voting Decisions, Ann Arbor, University of Michigan Press. 36 William Riker and Berry Weingast (1998) ‘Constitutional Regulation of Legislative Choice: The Political Consequences of Judicial Deference to Legislatures’, Virginia Law Review, Vol. 74, 74. 37 Eule, ‘Judicial Review of Direct Democracy’, 1545. 32 33

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Implications The refutation of Pak’s case for a stricter judicial review of ballot propositions does not, of course, render judicial review impermissible. It is the duty of the courts ‘to declare all acts contrary to the manifest tenor of the Constitution void’.38 But there is nothing inherent in initiatives which justifies that they almost routinely are challenged – and invalidated – in the courts. The courts should give initiatives the same deference that they accord to measures enacted by the legislatures. That the majority of the initiatives enacted by the voters in the Western states have been nullified by the courts indicates that the judges have failed to appreciate this. However, just because a law is enacted by the people, it should not be sacrosanct if it violates the constitution. There is always a question of legitimacy involved when the courts strike down the enactments of the people themselves. Judicial review might be legally permissible, but the political implications of judicial review of initiatives are different from the political implications of judicial review of laws enacted by the legislatures. The citizens – we might assume – are more likely to be outraged when a judge strikes down a measure enacted by themselves, than when a judge strikes down a law enacted by another member of the ‘power elite’.39 The judiciary has been described as ‘the least democratic of the three branches of American National government’.40 That the courts (especially the federal courts) are the least accountable of the institutions in America’s political life makes it imperative that the courts restrict their interference in political life lest the legitimacy of the whole political system be impaired. The voters may be unaware and unmoved when laws enacted by the legislatures are declared void by the courts – they might even applaud the decision. But judicial challenges of ballot measures are (politically) birds of a different feather. Judicial review of initiatives, especially popular ones, risks engendering the perception that the citizens have been subverted, and is likely to result in an even higher level of political discomfort.41 Alexander Hamilton, ‘Federalist No. 78’, p. 438. M. Qvortrup (1999) ‘The Constitutional Implications of the Use of the Referendum’, Doctoral Dissertation, University of Oxford, Chap. IV. 40 Jess H. Chopper, cited in Pak, ‘The Counter-­Majoritarian Difficulty in Focus’, p. 238. 41 ‘A distinguishing feature of politics in the 1990s is a pervasive sense of public distrust of, frustration with, and alienation from government . . . A recent 38 39



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The scheme proposed by Pak – and enforced in Jones r. Bates – will not only undermine the principle that the ‘will of the people’ is the touchstone of political legitimacy, it will also increase the already alarming distrust in the political system. Indeed this resentment has recently been shown in the citizens’ reaction against judges who defied the wills of a majority of the voters. The electoral defeat of Rose Bird, California’s chief justice (who struck down several initiatives) is but one example of the fate of a number of judges who have suffered the consequences of nullifying the will of the people. Conclusion The increasing use of the initiative has resulted in an increasing number of propositions being challenged in the courts: 54 per cent of the successful initiatives in the Pacific states are challenged, and 55 per cent of these are invalidated in part or in totality by the courts. This trend raises the question of whether the courts should give more or less deference to legislation enacted directly by the people. Pak argues – along with Eule – that a case can be made for ‘a harder look’ at initiatives. The voters, he claims (without offering empirical proof), lack the knowledge required to decide on these issues. Moreover their, alleged, lack of knowledge results – according to Pak – in the enactment of laws that are inconsistent with the preferences of the voters. The brief analysis of the scholarly evidence regarding voter knowledge presented in this chapter does not support the premises underlying Pak’s argument. Indeed, Pak’s conclusion is inconsistent with recent scholarship by Lupia, Bowler and Donovan, which has established that voters use ‘information short-­cuts’ to cope with the information demand. Moreover Pak’s conclusion is inconsistent with Smith’s survey findings which show that an overwhelming number of the voters felt that they are well informed. These results undermine Pak’s case for strict scrutiny of citizen-­ enacted legislation. The evidence does not, to be sure, undermine the case for judicial review of direct legislation, but it undermines the case for judicial intervention on the grounds that the people are unable to Gallup-­Poll showed that only 20 per cent of respondents said that they can trust the federal government all or some of the time – half the percentage during the Watergate scandal.’ Caroline Tolbert (1998) ‘Changing Rules for State Legislatures: Direct Democracy and Governance Policies’, in Bowler et al., Citizens as Legislators, p. 172.

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reach informed decisions. Judicial review is still permissible, indeed desirable. If constitutions are to play any part in limiting government, then someone must decide when they have been breached and how they should be applied. The courts are ideally suited to play this part. But an overly zealous judiciary, which almost routinely strikes down laws enacted by the people, is not a necessary consequence of judicial review. On the contrary, an interventionist judiciary risks engendering the perception that the ‘elite’ is unresponsive to the wishes and the views of the citizens. ‘The courts,’ wrote Hamilton, are ‘designed to be an intermediate between the people and the legislature in order, among other things, to keep the latter within the limits assigned to its authority.’42 That the courts currently show a considerably greater propensity to strike down initiatives indicates that the courts themselves perhaps have overstepped the limits assigned to their authority. But the courts are not the only ones to regulate. Public bodies do it too, and sometimes with just reason. We will cover this in the next chapter.

Hamilton, ‘Federalist No. 78’, p. 442.

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9

Regulation of direct democracy: international comparisons and patterns

Referendums – and especially initiatives – are rare in most Western democracies. They have only become centrepieces of the political systems in Switzerland and – since the 1970 – Italy. The legislative initiative is practically unknown outside America, though as we have seen above, it has begun to play a role in Germany, New Zealand and a couple of former communist countries. The Swiss can merely propose constitutional amendments, but these are often defeated (the voters have endorsed a mere twelve out of a total of 104 proposed constitutional initiatives).1 These differences between America and the rest of the world have led observers to the conclusion that there are ‘two worlds’ of the referendum: one where their potential for making or unmaking policies is ever present in the minds of the legislators or lobbyists, and on the other hand, a ‘second world’ where referendums are used infrequently usually to set the seal of legitimacy to a controversial policy change or a change of the regime.2 The comparative rarity of the referendum in the ‘second world’ has, moreover, led observers to the conclusion that the referendums in these polities are unimportant and devoid of controversy; in short, that the referendum in these polities is a democratic curiosity with few, if any, practical implications. Nothing could, in a sense, be further from the truth. Referendums are, to be sure, rare. This does not, however, imply that they are unimportant. In fact, it sometimes seems that the fewer the referendums the wider their implications; that is, their infrequency It should, however, be noted that the constitutional initiative has been used to pass laws which in other polities would have been enacted by ordinary statutes. Wolfgang Luthardt (1994) Direkte Demokratie. Ein Vergleich in Westeuropa, Baden-­Baden, Nomos, p. 43.  2 David Butler and Austin Ranney (1998) ‘Summing Up’, in Referendums: A Comparative Study of Practice and Theory, Washington DC, AEI, p. 222.  1

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is inversely correlated with their consequences. Norway’s referendum (in 1972) on membership of the EEC (the precursor of the EU) led to a break-­up of the party system,3 as did the referendums on the electoral system in Italy in 1993.4 The French referendum on a reform of the Senate and local government in 1969 led to the resignation of President Charles de Gaulle and James Callaghan’s Labour government was forced to resign following the unsuccessful referendums on devolution for Scotland and Wales in 1979.5 No American plebiscites have had implications for the party system and no governor has resigned following a defeat of an initiative. In short, no American plebiscites have (with the exception of Proposition 13 in 1978) had consequences which even remotely resemble the effects of referendums in Europe. Most American referendums and initiatives have few – if any – ­ constitutional implications. The reverse is true in Europe where ­practically all referendums have considerable constitutional and political implications.6 Given these effects, it is somewhat odd that the ­referendum is practically unregulated in these polities. Regulation of I&R Regulation can take many forms. Some forms of regulation might be inevitable in a democratic system: the act of voting, the location of the polling station and the size of the ballots are issues which necessarily must be regulated. These issues are often uncontroversial and will not be discussed in this chapter. The forms of regulation which will be discussed are the – often controversial – restrictions which are often imposed on the initiative and referendum (I&R) process. These ­restrictions – which are often introduced to ensure a fair outcome – are: • • • •

Restrictions on signature gathering Limits on campaign contributions Limits on campaign spending Pre-­election judicial review

Tor Bjørklund (1997) Om Folkeavstemninger, Oslo, Universitetsforlaget, p. 175. Richard Katz (1995) ‘The 1993 Parliamentary Electoral Reform’, in Carol Mershon and Gianfranco Pasquino (eds), Ending the First Republic, Boulder, CO, Westview Press.  5 Vernon Bogdanor (1994) ‘Western Europe’, in Butler and Ranney, Referendums Around the World.  6 M.H. Qvortrup (1999) ‘Constitutional Implications of the Use of the Referendum’, Unpublished D.Phil thesis, University of Oxford.  3  4



• • • •

Regulation of direct democracy143

Post-­election judicial review Single-­issue restrictions Super-­majorities Disclosure laws7

Most of the twenty-­three American I&R states have imposed several of these restrictions on the citizens.8 The reverse is true in Europe and Australia where only one or two of the restrictions are in force. Pre-­ legislative review has been a dominant feature in Italy,9 but nowhere else.10 Supermajorities are known from Denmark, Britain (in the latter case only in the 1979 devolution referendums) and Italy,11 and most recently from Canada (the Clarity Act stipulates that the voters in any future secession referendum must provide a clear expression of the will of a clear majority, though it does not spell out an exact percentage12). The supermajority provisions have led to the defeat of several laws in Italy and to the defeat of the devolution proposal for Scotland in 1979.13 Few of the polities have imposed restrictions on campaign spending: notable exceptions are the Canadian province of Quebec14 and Britain.15 In both Ireland and Canada the courts dismissed challenges to limit expenditures in ballot campaigns, arguing in both cases that such restrictions are incompatible with the constitutional provisions for freedom of

See Elisabeth Gerber (1999) The Populist Paradox. Interest Group Influence and the Promise of Direct Democracy, Princeton, Princeton University Press, pp. 37–58.  8 Caroline J. Tolbert, Daniel H. Lowenstein and Todd Donovan (1998) ‘Election Law and Rules for Using Initiatives’, in Bowler et al., Citizens as Legislators, p. 27ff.  9 Pier Vincenzo Uleri (1996) ‘Italy: Referendums and Initiatives from Origins to the Crisis of a Democratic Regime’, in Gallagher and Uleri, The Referendum Experience in Europe. 10 For a study of pre-­ legislative review of American initiatives see James D. Gordon and David B. Magleby (1989) ‘Pre-­legislative Review of Initiatives and Referendums’, Notre Dame Law Review, Vol. 64, 313–34. 11 Mads Qvortrup (2000) Ensuring Legitimacy. Guidelines for Referendums in Israel, Jerusalem, Israel, Ministry of Justice, p. 18. 12 Clarity Act 2000, Art. 2.2. 13 Vernon Bogdanor (1980) ‘The 40 Per Cent Rule’, Parliamentary Affairs, Vol. 33, No. 3, 249–63. 14 The Constitution Unit (1997) Report of Commission on the Conduct of Referendums, London, Constitution Unit, p. 61. 15 Ingrid van Biezen (2003) Financing Political Parties and Election Campaigns: Guidelines, Council of Europe.  7

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speech.16 In Australia the High Court (Supreme Court) has, on similar grounds, invalidated provisions to restrict broadcasting of political commercials on radio and television during the campaign.17 Not all countries are as unregulated as Ireland, New Zealand, Australia and the Scandinavian countries, however. The British Broadcasting Act of 1990 – which was introduced by the Conservative Thatcher ­government – bans all political advertising on ITV (the commercial channel) and local radio stations.18 Yet most polities have conspicuously few regulations of the process of (semi-­)direct democracy. The ‘“classical” exception to the rule is the Quebec Referendum Act of 1978. The official objective of the act was to guarantee the democratic nature of referendums by promoting equality between the two sides. Moreover the act was intended as a mechanism for providing information to the two sides. As the Canadian Supreme Court later noted: In its egalitarian aspect the Act [was] intended to prevent the referendum debate being dominated by the most affluent members of society. At the same time, the Act [promoted] an informed vote by ensuring that some points of view are not buried by others. This highly laudable objective, intended to ensure fairness of the referendum on a question of public interest, [was] of pressing and substantial importance in a democratic society.19

In order to prevent distortion of campaigns by wealthy individuals the act requires that so-­called referendum committees use a special fund to cover the expenses they incur during the campaign. Each committee may spend up to $1.00 per eligible voter. The state contributes to the committees’ funds an amount set by the National Assembly. The committees may then raise other funds up to the $1.00 limit. Individual citizens may donate a maximum of $3,000 to each committee, while firms and legal persons are not allowed to contribute funds. This act was, however, ruled unconstitutional by the Canadian Supreme Court in 1997.20 The Court argued that the Quebec Referendum Act was inconsistent with the Canadian Charter of Rights and Freedoms, which protects the freedom of expression and association. However, the judges acknowledged the need for spending limits. The act was objectionable because it gave the political parties a virtual monopoly on information. The act Geoffrey Marshall (1999) ‘The Referendum: What, When, How?’, Parliamentary Affairs, Vol. 50, No. 2, 311. 17 Australian Capital Television Pty Ltd. v. Commonwealth of Australia, No. 2, 1992, 108 A.L.R. 577. 18 Broadcasting Act 1990, S.8 (2) (a). 19 Libman v. Quebec (Attorney General) [1997] 3.S.C.R-­569, 1. 20 Libman v. Quebec (Attorney General) [1997] 3.S.C.R-­569. 16



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would be consistent with the Charter if funds were allocated to civic groups. The Assemble National enacted a new law incorporating the Court’s recommendations in 1999.21 The new act remains – the rulings notwithstanding – the only example of restrictions on the referendum process. The comparative lack of regulation does not, however, imply that the politicians are unaware of or categorically opposed to regulations. The Israeli opposition party, Likud, sought to introduce campaign spending limits, qualified majorities and regulations of broadcasting in the debate about the introduction of the referendum in Israel in 1999.22 Israel is not an exception. The following quote from a front-­page article from the English newspaper The Guardian at the time, indicates that regulation of referendums also is a heated topic in a country which at that time had only held one nationwide referendum. In an article about the prospect of a euro-­sceptic bankrolling a campaign against the EU, the Manchester-­ based newspaper reported that: Labour [had] proposed tight spending limits on future referendum campaigns which would effectively thwart attempts by maverick EuroSkeptics like billionaire Yorkshire businessman Paul Sykes to bankroll a campaign against the EU’s single currency. The move came on a day when a group of business leaders, headed by Lord Marsh, a Labour cabinet minister in the 1960s, launched a £1 million-­plus Business for Sterling campaign designed to offset what they claim is a multi-­million pound pro-­Euro campaign funded from the EU information budget. Labour’s proposals would not stop Lord Marsh, his allies at the wealthy Institute of Directors or the 100,000 strong Federation of Small Businesses from campaigning. But it would limit their individual donations to £500,000 – 10% of the proposed national maximum allowed to parties . . . Mr. Sykes said last night: “the suggestion that individuals would be limited in what they could spend to promote a cause they believed in would be anti-­democratic. It’s meant to stifle debate.”23

This ‘threat’ possibly explains why the government – via the introduction of the Political Parties, Elections and Referendums Act 2000 – decided to ignore the Neill Committee’s recommendation that limits on campaign spending should be avoided. The danger of being outspent by opponents of the single currency was tangible – and unwelcome for the government. The opposite is true in America. The state governments in Loi sur les elections et les referendums dans les municipalities, LRQ, C.E-­2.2. Evelyn Gordon (1999) ‘When a Majority is Special’, Jerusalem Post, 19 December. 23 ‘Labour Calls for Spending Curb on Referendum Campaigns’, Guardian, 12 June 1988, A1. 21 22

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America have been prone to regulate the initiative lest the people should employ this device to introduce legislation opposed by the legislators. The fundamental question is why politicians have failed to introduce restrictions. Are there political reasons for this unwillingness to introduce restrictions? Or is the unwillingness to introduce restrictions a result of different political cultures? There are striking contrasts between approaches to public policy in the United States and in Western Europe. West European civil servants usually enjoy an extremely close and co-­ operative relationship with non-­ governmental representatives (e.g. business, trade unions, etc.). In America, however, the regulatory process is, for historical reasons, highly legalistic and contentious. These differences have led to the result that issues which in Europe would be resolved through corporatist bargaining, are resolved through legislation in the United States.24 The failure to introduce restrictions on the referendum process seems to reflect the fact that it is the governments in Europe and Australia who typically sponsor the legislation, which is submitted to the voters. Neither the government, nor business and trade union leaders, have an incentive to introduce restrictions that make the enactment of their law more difficult. The voters can – at most – veto proposals drafted and enacted by the legislators. Proposals for restrictions of campaign spending have only occurred in the aftermath of a defeat of a government-­sponsored measure or when the governments feared that interest groups had raised enough money to wage a successful campaign against a government-­initiated proposal.25 There is a lot to be said for this public policy interpretation, yet it is clearly less applicable in an analysis of the regulation of initiatives and referendums than in an analysis of, say, environmental policies or occupational safety. The regulation of initiatives and referendums is clearly different from that of public policy issues; occupational safety regulation directly involves the citizens. Regulation merely affects the voter on polling day. Yet it might be argued that the same logic applies to the two cases: groups with vested interests fend for themselves. Those who – for institutional reasons – are in a privileged position, make every possible effort to maintain that position. The main difference between ‘the two worlds of referendums’ is that plebiscites in the ‘second world’ primarily perform the role of being a See inter alia, David Vogel (1986) National Styles of Regulation, Ithaca, Cornell University Press. 25 Ben Seyd (1998) Electoral Reform in New Zealand. Lessons for the UK, London, The Constitution Unit. 24



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check on the government (or the majority in Parliament in multi-­party systems).26 Most referendums in the ‘second world’ of the referendum are constitutionally obligatory referendums on fundamental constitutional changes, changes that, for constitutional reasons, are only implemented if the people endorse them.27 These provisions are typically inserted in the constitutions as checks against the governments and parliamentary majorities.28 The elected lawmakers in the United States have an incentive to restrict citizen involvement, i.e. an incentive to create obstacles to prevent citizens from enacting legislation which is against the interests of the legislators. European and Australian legislators, by contrast, have an incentive to reduce obstacles in order to increase the probability of the successful passage of their own proposals (proposals which follow a process of elite bargaining).29 These well-­endowed and influential groups have no interest in introducing limits on campaign spending, nor would they benefit from public disclosure laws. Indeed, such regulations might add to the citizens’ distrust in the political class, and hence increase the risk of a no-­vote in a referendum on a law initiated by the political class. For, as Austin Ranney once noted: It is much harder to buy an election if everyone knows that the effort is being made; grossly excessive contributions and expenditures may well provoke a backlash among the voters and cause them to vote the other way. Hence . . . full publicity is one of the best guarantees available against the excessive influence of money on election outcomes.30

This logic is not restricted to the second world of referendums. David Olson’s study of the 1991 Washington term-­limit initiative (I-­533) campaign illustrates how lavish one-­sided spending brings attention to an initiative and to the group backing the proposal. Early on in the campaign the ‘yes’ side was well ahead in the polls. Contributions came from a hitherto unknown organization, Citizens for Congressional Reform (CCR). By mid-­October the media reported that CCR was located outside Washington and that businessmen connected M. Qvortrup (1999) ‘A.V. Dicey, The Referendum as the People’s Veto’, History of Political Thought, Vol. 20, No. 3, 531–46. 27 Butler and Ranney, ‘Summing Up’, p. 222. 28 Qvortrup, ‘A.V. Dicey’, p. 531. 29 Jan-­Erik Lane and Svante Erson (1996) Politics and Society in Western Europe, London, Sage. 30 Austin Ranney (1981) ‘Regulating the Referendum’, in Austin Ranney (ed.), The Referendum Device, Washington DC, The American Enterprise Institute, p. 92. 26

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to the Republicans bankrolled it. The widespread support evaporated following the revelation and the measure was defeated by an 8 per cent margin.31 Knowing which side of an issue parties, groups and elites are promoting might allow more voters to decide where they stand on an issue: we might think of it as the ‘who’s for it (who’s against it)’ cue.32 Disclosure laws might reveal who’s behind an issue. This is the reason that governments – who typically are backed by organised interests – are reluctant to introduce disclosure laws. Disclosure laws expose the governments to unwelcome scrutiny of the true beneficiaries of the proposed changes. A government proposing a legislative change is, – for obvious reasons, rarely interested in this attention. It is, therefore, not surprising that disclosure laws were previously relatively uncommon outside the USA, though this has changed in recent years with the introduction of laws like the Political Parties, Elections and Referendum Act 2000 in Britain. This conclusion goes some way to explaining why the people’s representatives in American states (who typically seek to prevent the passage of initiatives) are in favour of regulation (that would expose the financial backers of initiatives that they are against and hence reduce the likelihood of them being enacted) and why legislators in Europe and Australia (who seek to ensure passage of their own proposals) are opposed to disclosure laws. Public knowledge of the vast amounts spent by proponents in, say, the controversial referendums on European integration (the ‘yes’ side typically outspends the ‘no’ side by a factor of ten to one33) is likely to raise suspicion, which increases the probability of a rejection of the proposal. Towards a pattern of campaign regulation That the governments outside the USA are less enthusiastic about ­regulation – if not positively hostile to it – is not a consequence of idealism or theoretical convictions, it is rather a result of the fact they have other incentives than American state legislators. The government in New Zealand did not consider restrictions on the process in the first referendum on the electoral system in 1992 (a referendum in which the government campaigned for the c­ontinuation of the first-­ past-­ the-­ post electoral system), but the government was David Olsen (1992) ‘Term-­Limits Fail in Washington: the 1991 Battleground’, in G. Benjamin and M. Malbin (eds), Limiting Legislative Terms, Washington DC, Congressional Quarterly Press. 32 Bowler and Donovan, Demanding Choices, p. 38. 33 See generally Butler and Kitzinger, The 1975 Referendum. 31



Regulation of direct democracy149

s­uddenly in favour of restrictions in the second referendum in 1993 when the people had to choose between electoral systems which all were opposed by the government.34 Yet, as sceptics are sure to point out, this explanation does not cover all cases. Indeed, it does not explain the two notable anomalies; the Quebec Act, which, in fact, was passed by the PQ government (a party that fought desperately for the passage of the 1980 proposal for so-­ called Sovereignty Association)35 and the Political Parties, Elections and Referendums Bill, proposed by a political party with an overwhelming majority in the House of Commons. Why was Tony Blair pressing for the introduction of restrictions on campaign spending in the UK? These anomalies can be explained by the fact that the PQ and New Labour, credibly enough, believed that the ‘no’ side in the referendums would be bankrolled by, respectively, A ­ nglo-­Canadian i­nterest groups and the other English-­speaking provinces,36 and wealthy euro-­sceptics. The outlined pattern does not amount to a universal law of political science. It is, rather, a tendency. However the tendency is not – so it seems – a result of the frequency of the number of referendums. The number of polls held in Switzerland and Italy approach the number of polls held in the Pacific states, yet the direct democracy processes in these countries are comparatively unregulated; no restrictions on campaign spending and campaign expenditures have been introduced in either of the two countries, disclosure laws are unknown and regulation of media access is non-­existent.37 This is possibly because these countries are dominated by referendums and not by initiatives (less than a quarter of the polls in Switzerland are constitutional initiatives),38 whereas ­initiatives are more common than referendums in the United States.39 John Henderson, ‘New Zealand Referendums, 1992 and 1993’, in Alan Simpson (1992) (ed.), Referendums: Constitutional and Political Perspectives, Occasional Publication No. 5, Department of Politics, Victoria University of Wellington, p. 143ff. 35 Michael Burgess (1993) ‘Constitutional Reform in Canada and the 1992 Referendum’, Parliamentary Affairs, Vol. 46, No. 3, 363–79. 36 Maureen Davis (1992) ‘Self-­ Determination and Referendums’, in Allan McCartney (ed.), Asking the People. The Referendum and Constitutional Change, Edinburgh, USGS, pp. 4–7. 37 Silvano Möckli (1994) Direkte Demokratie, Bern, Haupt, p. 287. 38 Alexander Treschel and Hanspeter Kriesi (1996) ‘Switzerland: The Referendum and the Initiative as a Centrepiece of the Political System’, in Gallagher and Uleri The Referendum Experience, p. 194. 39 David Magleby (1994) ‘Direct Legislation in The United States’, in Butler and Ranney, Referendums Around the World, pp. 230–1. 34

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The difference in the level of regulation is thus a function of the institutional provisions for one of the two main forms of direct democracy. The process is regulated in polities where initiatives are common, whereas the reverse is true in polities where the citizen’s involvement is restricted to participation in referendums. The restrictions depend upon the governments’ interests: the initiative creates an incentive for regulation. The referendum creates an incentive against regulation of the I&R process. It is, of course, true that different political and administrative cultures exist in America and the other countries. We should never underestimate these differences, yet it seems that the politicians’ incentives are a more obvious reason for the ­differences in the schemes of regulation. Last thoughts These impressions do not amount to a general theory of direct democracy regulation. The patterns of regulation vary considerably. Yet a pattern can be discerned: America is easily the most regulated country – not because the American politicians are more prone to regulate than Europeans and Australians, but because regulation makes it more difficult for the people to co-­legislate and pass laws opposed to the wills of the legislators (and the interest groups). The politicians in Western Europe, on the other hand, have an ­incentive not to regulate the process, as this would increase the probability of defeats of their own proposals. In short referendums are seldom accompanied by regulation. What all this amounts to is a simple – yet u ­ ndisputed – law of political science: politicians always seek to ­maximise their own influence – if necessary at the expense of others.

Conclusion: The age of supply-­side politics?

‘Democracy first developed in a society of mature individuals.’ Jürgen Habermas.1

In November 2012, while all eyes were on the election battle between President Barack Obama and the Republican contender Mitt Romney, the voters in thirty-­eight American states also cast ballots in initiatives and referendums. In some way the results were as significant as the outcome of the epic and very expensive presidential contest. Voters in California voted by 54–­46 per cent to increase sales and income taxes to balance the state budget, Maine and Maryland became the first states to approve same-­sex marriage by popular vote and voters in Washington and Colorado voted to legalise recreational use of marijuana. However, far from being universally liberal, the voters in Alabama and Arizona voted – in a symbolic vote – to restrict President Obama’s health care reform. In Louisiana a large majority of the electors (73 per cent) voted to strengthen gun possession rights, in California voters rejected a repeal of the death penalty by a 53–­47 per cent margin, and in Massachusetts a vote to allow  physician-­assisted suicide  was rejected by a narrow ­majority.2 Were these votes conclusive evidence that the voters in America were capable of passing prudent political judgements, or yet another example of democracy gone amok? A snapshot from one year in one country is not enough to form a judgement. Referendums are not popular among the ruling classes. Frequently, politicians who have experienced defeats in referendums have denounced them. For example, José Manuel Barroso – the President of the European Commission – criticised referendums in the wake of the defeat of the Jürgen Habermas (1973) Legitimationsprobleme im Spätkapitalismus, Frankfurt am Main, Suhrkamp, p. 320 (translated by the another).  2 Elizabeth Weise, ‘Voters in 38 States Decide Sweeping Ballot Initiatives’,  USA Today: www.usatoday.com/story/news/politics/2012/11/06/initiatives-­on-­ballot/ 1687885/ (accessed 7 November 2012).  1

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European Constitution in votes in France and the Netherlands. He said that they should be avoided because they ‘undermine the Europe we are trying to build by simplifying important and complex subjects’.3 Barosso, if he had been that way inclined (but he is not), could have cited Plato’s tale about the wise sea captain who was undermined by his incompetent sailors.4 Or he could have quoted more recent and less illustrious writers who basically hold that ‘referendums give citizens responsibility for political decisions when in fact they lack the necessary capacity or the competence to make these’.5 If Barosso had wanted to pour further scorn on the referendum he could also have pointed out that the device has a less than unblemished pedigree. As David Altman has noted, ‘the list of nondemocratic regimes that abuse plebiscites is pathetically high’6. Indeed, it does provide food for thought that Adolf Hitler himself claimed – on the occasion of one of his four referendums – that he was ‘steeped in the conviction that the authority of the state proceeds from the people and must be ratified by them in a free and secret [geheimes] referendum’.7 It is in the light of this almost incomprehensible that the referendum – once a mechanism used by dictators and autocrats – is now being defended by deliberative democrats and advocates of consensus democracy. A scholar who has written widely on the subject believes that the ‘referendum scan be a successful constitutional instrument’ which can ‘protect a deliberative environment within which citizen participation can be fostered’.8 Not long ago, referendums were criticised as ‘the most majoritarian of policy making device’.9 It is now being argued that ‘the potential of calling the referendum . . . is a strong stimulus for the majority to be heedful of minority views’.10 In the writings of yesteryear, referendums Hobolt, Europe in Question, p. 23. Plato (1968) The Republic, translated with notes and an interpretive essay by Allan Bloom, New York, Basic Books, Book IV, 488a–e.  5 Stephen Tierney (2012) Constitutional Referendums: The Theory and Practice of Republican Deliberation, Oxford, Oxford University Press, p. 29.  6 David Altman (2011) Direct Democracy Worldwide, Cambridge, Cambridge University Press, p. 89.  7 Adolf Hitler (1934) in Reichsgesetzblatt, Erster Teil, pp. 751–2., (translated by the author).  8 Tierney, Constitutional Referendums, p. 285.  9 M.S. Shugart and J.M. Carey (1992) Presidents and Assemblies, Cambridge, Cambridge University Press, p. 66. 10 Arend Lijphart (1999) Patterns of Democracy. Government Forms and Performance in Thirty-­Six Countries, New Haven, Yale University Press, p. 231.  3  4



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were considered to be mechanisms of repression. This has changed completely. The demand for direct democracy is in evidence every day in the news media. This book has taken a look at the empirical evidence. We have considered the practical use of mechanisms of direct democracy, i.e. the real world experiences with referendums, citizens’ initiatives and the recall. What can we conclude? Are these mechanisms as efficient as they are said to be? Or are they as dangerous as others would have us believe? Critics have argued that direct democracy is both time-­consuming and costly, and that it would lead to democratic fatigue. In extreme cases they are right. People do not want politics all the time. Yet in manageable doses, direct democracy – as employed in New Zealand, and at the local level in Germany, and the Netherlands – works, and provides an effective complement to the representative system of government. There is support for the proposition that that the initiative has positive benefits – though the effects of this mechanism are not as drastic and Panglossian as enthusiasts would have us believe. Direct democracy does not unequivocally lead to higher or more enlightened participation, but nor does it result in the opposite. But there is, all caveats notwithstanding, some support for the conclusion that direct democracy – even in small doses – has positive benefits in terms of trust in the political system. Take the citizens’ legislative initiative, a mechanism which allows citizens to demand that parliaments propose legislation. A provision for the citizens’ initiative is included in the Lisbon Treaty and exists in many countries. Though sceptics have questioned whether this seemingly toothless mechanism would have any democratic bite, the evidence in this book suggests that the critics and the cynics have been wrong to dismiss it. The citizens’ initiative has contributed to the enactment of relatively uncontroversial legislation in countries like Poland and Austria. Legislatures that had not introduced legislation were forced to do so once they saw that there was a popular demand for regulation of certain areas of public life. The citizens’ legislative initiative – while a weak mechanism – has had positive ­complementary effects. These complementary effects gradually emerged as a theme through the book. The recall – a mechanism that allows the voters to withdraw their representative – may seem like a nuclear option, and yet when this mechanism has been tried in practice it has had modest effects and has not resulted in the chaos predicted by critics. One of the interesting findings from the American use of the recall is that it seems to encourage participation. US States with recall legislation have a higher level of turnout in elections more generally.

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Of course, a high turnout is not the only concern. A greater participation rate is a high price to pay for political chaos. But there are no major examples of political upheaval as a result of the recall. Indeed, there are several examples of politicians who have survived recall elections and have emerged stronger. There are also – ­paradoxically – ­examples of recall elections which have encouraged a politics of compromise and consensus. A recent example of this is said to have been the recall in Wisconsin in 2011. Of course, we have no proof that voters are always competent and enlightened, though there is some (limited) evidence – as we saw in Chapter 5 – that voters in countries with more referendums have a greater knowledge of the issues (in this case matters pertaining to European integration). There are, to be fair, a good number of examples of referendums which have been less than edifying (the referendum on the Alternative Vote, discussed in Chapter 7, is a case in point). Further, referendums, even those held in countries where the voters often go to the polls (such as Ireland), suggest that there are limits to the levels of enlightened participation. Class voting and domestic politics often override and supersede the issues on the ballot. Referendums are not always about the issues on the ballot paper. But, then again, nor are general elections! These shortcomings have led to demands for greater regulation. In America, especially in California, there have been many examples of the courts striking down direct legislation on the grounds that citizens did not know what they were voting for. This argument, as we saw in Chapter 8, is not supported by empirical and theoretical findings. Of course, direct legislation must comply with the rule of law and be subject to the same constitutional limitations as legislation enacted by legislatures, but to argue that the voters are incapable of making enlightened decisions is a questionable conclusion. Of course, direct democracy does not exist in a vacuum. Like all other forms of legislation, direct legislation by the people – in whichever form – need to be regulated. As we saw in Chapter 9, mechanisms of regulation, such as limits to campaign spending, bans on advertising, etc. may be necessary – though more often than not politicians use these justified concerns as an excuse to impose draconian regulations, which limit the rights of the voters and strengthen the powers of the elected representatives. Regulation often seem to be a result of partisan considerations and not a consequence of an impartial assessment of the need to ensure fairness. So is direct democracy a panacea or the opposite? The answer lies somewhere in between. Countries that have referendums, initiatives



Conclusion155

and the like are not markedly better than countries that only allow their citizens to vote in general and other candidate elections – though there is evidence to suggest that they are marginally more successful economically and have cleaner environments and less distrust in politicians. To be sure, rich and democratic countries can be successful and prosperous whether or not they have frequent referendums, initiatives etc., but there is a tendency – and perhaps a little bit more than that – to see slightly more interest in politics and marginally higher turnout rates in polities that allow their citizens to propose legislation and recall elected representatives. ‘A nation does not have to be judged fit for democracy; it becomes it through democracy,’ the Nobel Prize-­winning economist Amartya Sen once said.11 This book has some found evidence in support of the proposition that the people who live in countries that are more democratic all other things being equal are better governed, slightly richer and have fewer social ills. It cannot always be said that direct democracy goes hand in hand with peace, prosperity and good governance, but there is more evidence that points in that direction than in the other. To put it differently, direct democracy has generally more positive implications than negative ones. Of course, one can always cite the financial crisis in California as an example of direct democracy gone amok, but it is equally possible to find examples of the opposite, that is that purely representative democracies go all but bankrupt (e.g. Greece). In short, while mechanisms of direct legislation by the people are not a panacea, they have generally improved governance. In the early 1980s politicians spoke of supply-­ side economics. According to Say’s Law, a law of economics named after the French economist Jean-­Baptiste Say: ‘A supply creates its own demand’.12 What was true for economics seems also to be true for democracy: a greater supply of democracy creates a demand for political participation. Or, to quote the late British politician Keith Joseph: ‘If you take responsibility away from the people you make them irresponsible – if you give responsibility to the people they become responsible.’ More direct democracy gives people more responsibility, and the empirical evidence in this book suggests that these opportunities to participate have made them, generally, more ‘responsible’.

www.wmd.org/assemblies/first-­assembly/keynote (accessed 15 November 2012). Steven Kates (1998)  Say’s Law and the Keynesian Revolution: How Macro­ economic Theory Lost its Way, London, Edward Elgar Publishing Limited, p. 1.

11 12

Index

Abortion, 36 AC-DC, 4 Adams, Gerry, 100 Ahern, Bertie, 97, 100 Almond, Gabriel, 60 Altman, David, 152 Aristotle, 14, 15, 19, 89 Articles of Confederation, 78 Attlee, Clement, 20 AV- Referendum, 108ff Bagehot, Walter, 32 Balkenende, Jan-Peter, 51 Banducci, Susan, 76 Barroso, José Manuel Durão, 151, 152 Ba˘sescu, Traian, 86, 87, 88, 125 BBC, 47 Beckett, Margaret, 117 Benz, Matthias, 93 Bessette, Joseph, 54 Birch, A.H., 3 Bird, Judge Rose, 139 Björklund, Tor, 114, 128 Blair, Tony, 149 Boehmke, F.J., 35 Bogdanor, Vernon, 127 Bonaparte, Napoleon, 20 Bourne, Jonathan, 92 Bowler, Shaun 32, 105, 136, 139 Brecht, Bertolt, 97 Brown, Gordon, 3, 55, 75, 100, 115, 122 Burke, Edmund, 22, 31 Butler, David, 2, 127 Buzek, Jerzy, 66

Cabinet Office, 2, 19 Cable, Vince, 127 Callaghan, James, 114 Cameron, David, 3 Campaign Spending, 38, 44 Camus, Albert, 106 Canadian Supreme Court, 144 Capital Punishment, 35 Carey, J.M., 152 Chamberlain, Austen, 108 Chavez, Hugo, 87, 88 Chen, Shui-Bien, 86 Citizen Initiated Referendum Act 1993, New Zealand, 44 Citizens Against Rent Control v City of Berkeley, 134 Citizens' Juries, 54–6 Clarity Act (Canada) 143 Cleese, John, 95 Clegg, Nick, 75, 117, 120, 121, 122, 128 Commager, Henry Steele, 33 Condorcet, Nicolas de Caritat, marquis de, 18 Cowen, Brian, 99, 101, 104 Cronin, Thomas, 34, 136 Crosby, Lynton, 122 D66, 51, 52ff Dail Eireann, 8, 99, 101 Dalton, Russell, 60 Davis, Gray, 77, 78, 88 de Graaf, Thom, 53 Death Penalty, See Capital Punishment Donovan, Todd, 32, 105, 136, 139

Drainville, B., 4 Dryzek, John, 54

Index157 Irish High Court (An Ard-Chúirt), 98 Irish Times, 100 Izzard, Eddie, 124

EEC, 114 Electoral Commission, 123 Electoral Reform Society, 121 Engels, Friedrich, 102 Eule, Julian, 132 Euripedes, 13 Eurobarometer, 93 European Citizens' Initiative, 57ff

James II (James VI of Scotland), King of England, 21 Johnson, Boris, 2 Johnson, Nevil, 32 Jones v Bates, 131 Joseph, Keith, 155

Faulkener, Charlie, 116 Feinstein, Dianne, 80 Fergusson, Adam, 16 Firth, Colin, 124 Fiskin, James, 54 Fletcher, Chris, 44 Foley, Tom, 125, 126 Frazier, Lynn J., 79 Friedman, Milton

Kaczynski, Lech, 66 Karp, Jeffrey, 76, 125 Kavanagh, Dennis, 115 Kenny, Enda, 101, 104 Key, John, 46 Key, V.O., 106 King, Bolton, 89 Kitzinger, Uwe, 127 Kiwi Party, 46 Kobach, Kris, 38 Kuchma, Leonid, 27

Gaddafi, Muammar, 22 Gaius, 15 Ganley, Declan, 98, 105 Garrell-Jones, Tristan, 3 Gay-Marriages, 35ff Gillmore, Eamon, 101 Goebbels, Josef, 120 Goff, Phil, 46 Gonsalves, Ralph, 112 Greene v McElroy, 133 Habermas, Jürgen, 12, 54, 151 Hamilton, 130, 133, 134, 140 Havel, Václav, 118 Hayek, Friedrich, 17 Hendriks, Marjan, 53 Hitler, Adolf, 20, 49, 152 Hobolt, Sara, 90 House of Commons, 3 Huhne, Chris, 117, 121 Hume, David, 8, 9 Hussein, Saddam, 20 Ignalina Power Plant, 66 Immigration, 35

Laakso, Markku, 72 Lange, David, 44 Leduc, Larry, 100 Lenihan, Brian, 100 Lenin, Vladimir, 22, 85 Libertas, 98 Libman v Quebec, 144 Lijphart, Arend, 131 Lisbon Treaty, 6, 8, 57, 107, 153 Local Government Act 2003, 11 Locke, John, 22 Lupia, Arthur, 130, 139 Maastricht Treaty, 93 MacCormick, John P., 17 Machiavelli, Nicoló, 17, 128–9, Madison, James, 132 Magleby, David, 30, 127 March, James, 61 Marsilius of Padua, 15, 16, 19 Marx, Karl, 5, 85, 102 Matsusaka, John, 7 McKenna, Patricia, 98 Mecham, Evan, 81

158

Direct democracy

Miliband, Ed, 116, 117 Mill, John Stuart, 6, 7, 22, 33, 92 MMP Review Committee, 45 Monnet, Jean, 95 Montesquieu, Charles-Louis de Secondat, Baron de La Brède et de, 91 Mozart, W.A., 4 Mussolini, Benito, 20

Roosevelt, Ted, 28, 92 Rousseau, Jean-Jacques, 18, 19, 25, 89, 133 Royal Commission on the Electoral System (New Zealand), 43 Royal Society for the Protection of Birds, 2 Ryan, Bob, 74 Rytel-Warzocha, Anne, 68

Nationalrat (Austria), 61, 65 Neill Committee, 145 Nurmi, Hannu, 18

Say, Jean-Baptiste, 155 Schmidt, David, 39, 40, 93 Schmitt, Carl, 20, 21, 22, 23, 24 Schumpeter, J.A., 12 Schwarzenegger, Arnold, 87, 88 Sen, Amartya, 155 Sheboygan, Wisconsin, 74 Shugart, Matthew, 152 Sinclair, Paul, 122 Smith, Daniel, 39, 40, 93 Socrates, 13 Strachey, J. St. Loe, 31 Strøm, Kaare, 60 Stutzer, Alois, 93 Supermajorities, 143ff

Obama, Barack, 151 OECD, 60 Olsen, Johan P., 61 Olson, David, 147 Pak, Mihui, 132ff Palin, Michael, 95 Patten, Chris, 20 Peters, Winston, 47 Pierce, Neal, 33 Plato, 13, 152 Polhill, Dennis, 34 Political Parties, Elections and Referendum Act 2000, 39, 145–9 Populists, 28ff Powell, G.Bingham, 60 Power Commission, 43 Prescott, John, 117 Proposition Thirteen, 30, 95 Protagoras, 13 Quebec Referendum Act, 144 Rallings, Colin, 10 Ranney, Austin, 147 Rau, Johannes, 50 Raymond Crotty v An Taoisearch, 98 Reagan, Ronald, 79, 88 Reid, John, 117 Reitsma, Paul, 78 Riker, William, 137 Robertson, Margaret, 45

Taagepera, Rein, 72 Tacitus, 14 Taxation, 36, 95 Thompson, E.P., 55 Thrasher, Michael, 10 Thucydides, 13 Tierney, Stephen, 152 Tolbert, Caroline, 39, 40, 93 Treaty of Rome, 95 Turnout, 39, 41 Tweede Kamer, 62 Tyrie, Andrew, 32 Udall, Morris, 106 Ueland, Lars, 28, 29 Uleri, P.V., 64 US Supreme Court, 29 Verkhovda Rada (Ukraine), 27 Vike-Frieberga, Vaire, 67 Vogel, Hans-Jochen, 84

Walker, Gov. Scott, 82 Warsi, Sayeeda, 120 Weber, Max, 21 Weigel, Hans, 52 Weimar Constitution, 30 Weingast, Berry, 137 Weizsäcker, Richard von, 84 Wilde, Oscar, 108

Index159 William of Orange, 53 Wilson, Richard, 124 Wilson, Woodrow, 28, 92 Withers, Norman, 45 Wright, Tony, 32 Zimmerman, J.F., 75