Referendums: The Perils and the Possibilities

Direct democracy is to representative democracy what extra-virgin olive oil is to refined olive oil. The latter is more cost effective and, perhaps according to some, just as good. But to the connoisseur, there is no substitute for the real stuff.

In the fourth article of his ongoing series on democracy, Toronto Star columnist Rick Salutin examines the real stuff in the form of Swiss referendums. Several national referendums are held together four times per year in Switzerland on everything from tax policy to constitutional amendments to international treaties. Direct democracy advocates all around the world look on enviously, and it is easy to understand why. Whatever it is that makes representative democracy good — equality, civic engagement, rule by the people, etc. — surely makes direct democracy even better.

In his Patterns of Democracy, Dutch-American political scientist Arend Lijphart makes the somewhat counterintuitive argument that referendums, when initiated by citizens as they frequently are in Switzerland, can be used as a tool for consensus rather than blunt majoritarianism. Citizens’ initiatives allow a minority of the population (Switzerland requires a minimum of 50,000 to 100,000 signatories on such petitions) to make proposals or present challenges that would otherwise go unconsidered by elected lawmakers. More than 50 percent of voters must ultimately approve the initiative in the ensuing referendum in order for it to pass, but the key point is minorities now have a chance they would not otherwise have to persuade the majority. Salutin notes that Swiss laws live in “the shadow of the referendum,” and thus that lawmakers preemptively build broad-based compromises into their legislation in order to avoid challenge.

But does it always work out that way? How about the famous 2009 referendum in which the Swiss, apparently inspired by anti-Muslim xenophobia, voted to ban the construction of minarets? Far from consensus democracy, this seems more a case of that much condemned “tyranny of the majority.” Referendums, it is commonly warned, merely enable the violation of individual and minority rights.

Can this be guarded against? Is there any way to keep the good referendums while tossing out the bad ones? The most reliable protection against majoritarian tyranny is without doubt a strong written constitution backed up by judicial review, but the drafters of a constitution cannot possibly anticipate every future impingement upon individual and minority rights. What other options are there?

One source of inspiration is the Recall and Initiative Act here in British Columbia (the only Canadian province where such a law exists). Once the required number of signatures is gathered on an initiative, the proposed legislation is simply handed to the Legislature. By convention, it is commonly expected that a successful initiative will be put before the public in a referendum, but if they wish, lawmakers may simply choose to vote yea or nay on their own.

I personally believe that this procedure strikes the right balance, although not every other aspect of the law is reasonable. In giving canvassers only three months to gather the signatures of 10 percent of registered voters in every single riding, the bar is set way too high. It is no coincidence that since the Act came into effect in 1995, only one initiative out of seven attempts has passed the required threshold. For the initiative law to have a significant impact, the minimum number of signatures should be lowered or the amount of time set aside for gathering them should be increased. But the Legislature’s decision to retain a final say as a safeguard against abuse is a good idea (as are some of the campaign finance rules).

So let open-minded democrats the world over consider the advantages of Swiss-style direct democracy while remaining wary of the risks. In order to function properly, it requires careful institutional design and an informed and engaged citizenry. If these conditions are met, the reward is democracy as it was always meant to be.