Referendums: A Comparative Study of Practice and Theory, ed. David Butler and Austin Ranney, 1978.3
Switzerland
Jean-Frangois Aubert
In Switzerland referendums are popular votes on laws and constitutional decrees or issues which citizens are asked to approve or reject by a yes or a no. Referendums are clearly distinct from elections when citizens choose people to represent them. Issues submitted to referendum may come from the parliament in the form of constitutional reforms or laws, or from citizens in the form of a popular initiative. Referendums and initiatives are seen as institutions of direct democracy in contrast to elections, which are the basic instrument of representative democracy.
History The referendum was used at the end of the Middle Ages in several Swiss cantons, notably in Bern. Then it was suppressed in the seventeenth and eighteenth centuries by the development of a form of oligarchic government. It reappeared in the nineteenth century, first in an isolated way at the time of a national vote on a constitution for the Swiss republic1 and then more generally in the liberal "Regeneration" around 1830. At that period most cantons, including the conservative ones, accepted the custom of submitting their constitutions to the people -- and some their laws as well. When Switzerland became a federation in 1848, imitating the United States, the new constitution was put to the people for ratification in the great majority of cantons.2
From the first, the compulsory referendum was provided for, but only for amendments to the federal constitution. In 1874 it was extended, on an optional basis, to cover any federal laws or decrees of general application adopted by the parliament. Later amendments in 1921 and 1977 made certain international treaties subject to referendum. Popular initiatives, which lead necessarily to a referendum, were originally envisaged only for the total revision of the federal constitution. A change in 1891 made it possible to use them for the partial amendment of the constitution, but federal law still does not allow for popular initiatives on ordinary laws.
The laws of different cantons make varied provisions for referendums and popular initiatives, usually more far-reaching than those on the federal level. Since the movement toward democratization in the 1860s, every canton has had, in addition to referendums on their own constitutions and laws, budgetary referendums (referendum financier) of a sort unknown in federal law. They have also had provisions for popular initiatives both on constitutional changes and on proposed laws. In this chapter attention will be confined to the federal situation.
The Current Federal Situation Swiss referendums are always mandatory, never consultative. If the people vote no, the text submitted to them cannot be put into force, and, in the rare cases where it is already in force, it must cease to have effect. The citizens give strict orders to the authorities, not mere advice. Swiss referendums are sometimes compulsory, sometimes optional, depending on their subject. When they are optional they are usually demanded by a fixed number of citizens within a certain period. Optional referendums cannot be ordered by the parliament (in contrast to the rule in some cantons) nor by the government. This is in sharp distinction to many other countries; in Switzerland the referendum is not an instrument of central authority.
Swiss referendums are most often instruments of delay. The referendum procedure has to be completed before the law in question comes into force. It is only on matters of urgency that the referendum has a canceling effect. In such cases, the procedure is carried out after the text has gone into force, and the issue is whether it shall be sustained or abrogated.
All changes of the federal constitution, whether they be total revisions (which are rare) or amendments (which are common) must be submitted to a referendum. For an amendment to take effect it must secure a double majority -- that is, it must win the support of a majority of the votes cast in the country as a whole and also a majority of votes in more than half the twenty-two cantons.
The Federal Assembly (the Swiss parliament, which, like the U.S. Congress, is bicameral) legislates by passing laws and decrees of general application. There is no substantial difference between laws and decrees, at least since they were redefined by a 1962 law. They both lay down legally binding rules. The only distinction is that laws are timeless while decrees have a limited duration (for example, five years). All laws and decrees are liable to a referendum if, within ninety days of publication, 50,000 citizens sign a petition demanding one. If there is a referendum, the law or decree takes effect if it secures a majority of those who vote; a majority of cantons is not required, as it is for constitutional referendums.
The Federal Council, that is, the Swiss government, ratifies international treaties. But generally speaking it can ratify them only if they have been approved by the Federal Assembly. Under the 1977 rules, the decree of approval is subject to a referendum in the following cases: If the treaty involves joining a collective security organization such as the UN or a supranational community such as the European Economic Community (EEC), a referendum is compulsory, and a double majority of people and of cantons is required. If the treaty involves joining an international organization, such as the General Agreement on Tariffs and Trade or the European Free Trade Association, or subscribing to a multinational treaty standardizing law, or if the treaty is of long duration or of any sort that the Federal Assembly thinks suited to a popular vote, the decree of approval is subject to an optional referendum, in which only a majority of votes is required.
Decrees of general application which brook no delay can include an urgency clause on the vote of a majority of each of the two chambers. If the decree is for one year or less there can be no referendum. If it is for more than one year, a referendum can be demanded and, in the case of a negative vote, the decree will cease to have effect at the end of one year. The Federal Assembly can even, in case of urgency, adopt decrees which are not in conformity with the constitution (for example in areas outside federal competence). In such a case, if the decree is for more than one year, a referendum must take place and the decree lapses at the end of one year unless it has been confirmed by a double majority of people and cantons.
In federal law there are no provisions for referendums against estimates, against the budget, or against the ordinances of the Federal Council. Thus when parliament delegates legislative power to the government, there can be a referendum against the delegating law but not against the ordinances which are made under the authority of that law. On the other hand, in contrast to the case in most countries, laws on taxes and laws on the position of officials are subjects for referendum. Some tax rates are even laid down in the constitution, which means that they can be changed only by a compulsory referendum.
Popular Initiatives A hundred thousand citizens can demand the revision of the constitution. The signatures, set out on a special form, must be collected within eighteen months (this rule was laid down only in 1978; previously there was no time limit). Generally speaking, initiatives are used for amendments to the constitution. The citizens put forward a full draft of the text of a new article or a new clause. The Federal Assembly cannot change anything in this draft but can put forward an alternative of its own. The initiative needs assent by the majority of the people and of the cantons -- and the same applies to the counterproposal from the parliament.
Sometimes citizens decide to put forward a general proposition. If the Federal Assembly does not agree, there is a referendum based on a simple majority of people and not of cantons as well. If the Federal Assembly or the people agree to the proposition, the Assembly must prepare a bill which gives effect to it, and this bill is finally submitted to a referendum requiring a double majority.
If the initiative demands the total revision of the constitution there is always a preliminary vote of the people. If this vote is positive the Federal Assembly is dissolved, and a new Assembly is elected to draw up a constitution for submission to a vote of people and cantons. This cumbersome procedure has only been invoked once -- in 1935 when the preliminary popular vote was negative.
Citizens cannot demand the adoption, the modification, or the abrogation of a law or a decree. This bar makes them turn to constitutional change. For example, if they want to increase the level of old-age pensions, they have to propose an amendment not to the law on social insurance (for that is forbidden) but to the article of the constitution which covers old-age pensions.3
Statistics Between 1848 and August 31, 1978, the Swiss people have voted on 297 questions (see Table 3-1). There were 212 compulsory referendums. The laws, decrees, and treaties that could have been subject to an optional referendum number about 1,200 since 1874; 85 (7 percent) have in fact had referendums called on them.
Out of the 212 compulsory referendums there were 206 which required a double majority of the people as a whole and of the cantons: 199 where the two majorities were in the same direction (107 double yes; 92 double no); five where the people said yes and the cantons said no (1866, 1955, 1970, 1973, 1975); and two where the people said no and the cantons said yes (1910, 1957); the other six were preliminary votes on popular initiatives. In each of the five cases where the cantons prevented a reform to which the people said yes, the question involved giving new powers to the federal government. For example, in 1970 the issue concerned taxing powers; in 1973 authority over education; and in 1975 powers of economic management (on this occasion the votes were 540,000 yes and 490,000 no, but the cantons were eleven yes and eleven no, which blocked the change).
Between 1848 and April 30, 1978, there were about 125 popular initiatives. Seventy-four of these were put to a referendum and seven have been accepted, the last being in 1949. Of the remaining fifty-two, two were declared void (in 1955 because the proposal could not be put into force, and in 1977 because there was no coherence in the issues involved). Forty were withdrawn before the referendum, and a dozen were still pending in April 1978.
The federal parliament has put forward eighteen counterproposals. In seven cases the initiative was then withdrawn but in eleven cases it was pursued. In one of these eleven cases the initiative won against the counterproposal (in 1920 over gambling houses); in six cases the counterproposal was successful; in four cases both initiative and counterproposal were rejected (1955,1974,1976, and 1977).
Participation in Referendums. The record of turnout in Switzerland is low, much lower than in neighboring countries where, of course, they have to vote much less frequently. Moreover, the average percentage of those voting has declined over the years:
1880-1913 58 percent1914-1944 61 percent
1945-1959 54 percent
1960-1969 43 percent
1970-1978 42 percent.
Turnout has exceeded 80 percent on only five occasions: in 1872 and 1874 (over total revisions of the 1848 constitution); 1922 (a wealth tax); 1933 (a cut in civil service salaries); and 1935 (a new economic policy proposed by the Socialists). Turnout has also been falling in elections to the lower chamber, however, dropping from 80 percent in 1919 to 52 percent in 1975.
A Short Political Analysis. It is not possible here to analyze 297 popular votes. But some general observations are worth making, and some examples can be explored in more detail. From the results already set out, one can draw three simple lessons.
1. Votes on proposals from the parliament have usually been positive. Obligatory referendums on parliamentary proposals, counterproposals, and urgency decrees have produced 100 yes and 38 no votes (or 104 yes and 34 no votes in terms of a majority popular vote as distinct from a majority of cantons). This is easily explained. Parliament is dealing with bills which it knows will be subject to a popular vote, and it prepares them with appropriate prudence, seeking the good will of voters through compromises and by offering guarantees. Moreover, their anxiety to secure a favorable vote leads the federal parliament to redraft passages at length. To satisfy everyone, one must not be brief; one must go into detail. For example, when a constitutional amendment is intended to give more power to the federal government, rather than putting forward a general clause, parliament may prefer to list detailed areas for fear of upsetting the entrenched defenders of cantonal rights (known in Switzerland as "federalists"). This is what happened over hydroelectric power (article 24 bis of 1975). Sometimes parliament, as a constitutional tactic, arranges a complete legislative program in such a way that citizens know in advance what the federal legislators plan to do with their increased powers. This is what happened over old-age pensions (article 34 quater of 1972).
2. Votes which are demanded over parliamentary proposals, laws, decrees, or treaties under the optional referendum procedures are more often negative than positive -- 51 no and only 34 yes. This, too, is easily understandable, but the figures need to be compared with the total number of laws and decrees -- 1,200 -- which could have been subject to a referendum. In other words, 1,100 of these 1,200 laws and decrees were so devised that it was not possible to find 50,000 people (formerly 30,000) to attack them -- strong evidence of the prudence of parliament in not provoking opposition. When opposition does materialize into a demand for a referendum, it is a sign of ill temper in a section of the population. The referendum therefore has a strong chance of being negative, and three times out of five (51 times out of 85) the law in question has been rejected.
3. Votes which arise from popular initiatives are almost always negative. There have been 67 no and 7 yes votes (or 66 no and 8 yes, if allowance is made for the negative vote of the cantons over one popularly voted initiative in 1955). Such an outcome is predictable because the proposition comes from a minority. If the issue were a popular one, parliament would already have taken action without being pushed from outside. What is proposed lacks the agreement of the federal parliament. Of course the federal parliament is not an exact reflection of public opinion, and it is conceivable that it would oppose a popular proposal. But it is in fact a rare phenomenon -- the last case of a successful initiative was in 1949. One reason is that usually initiatives are over progressive issues (reduction of the work week, lowering the age of retirement, taxes on wealth, rights of conscientious objectors, bans on the export of arms, ecological safeguards), and the majority of the people are even more conservative than the parliament. That is why so many initiatives put forward by minorities get only minority support in the final referendum. Although they sometimes get respectable support (40 to 45 percent) they are nevertheless almost always rejected. But that does not mean that they have no effect. Often they provoke counterproposals or legislative reforms which at least partially satisfy their authors.
Political Parties To understand the way in which the Swiss have used referendums it is necessary to give a brief summary of the Swiss party system. In the nineteenth century there was one dominant party, the Radical party, and a Catholic Conservative opposition which defended the rights of cantons. The creation of the federal state in 1848 and the reinforcement of federal powers in 1874 was imposed by the Radicals on the Conservatives. The Socialist party developed around 1900 and became one of the big parties after World War I. At the same time an Agrarian party separated from the Radicals. In the 1920s, as in so many European countries, a Communist party was set up to the left of the Socialists. In 1935 the Independent Alliance was formed, primarily to defend the interests of consumers. Finally, around 1970, the presence of numerous foreigners, particularly Italians, on Swiss soil (more than a sixth of the population) led to the creation of small nationalist parties such as the Republican Movement and Action Nationale. Three big parties have regularly received 20 to 25 percent of the numerical vote in elections to the National Council since 1919 when proportional representation was introduced: the Radical party, the Christian Democratic party, and the Socialist party. The Democratic Center Union (the former Agrarian party) is a moderate party with 10 to 12 percent of the vote. The independents get between 5 and 8 percent of the vote. The Communist party is weaker than in France or Italy and, except in 1947, has never won more than 2.5 percent of the vote. The nationalist parties seem to have had only a short-lived success -- 5.5 percent in 1971 and 3 percent in 1975.
Political Parties and Direct Democracy. In the nineteenth century the referendum was of great use to the Catholic Conservative party, which used it extensively. The party systematically opposed constitutional amendments and regularly demanded votes on laws (more than twenty times between 1874 and 1900). The results were often negative, and the party became an increasingly large political force. In 1891 the Radicals allowed them one place in the seven-man government; in 1920 they secured a second federal councillor.
After World War I the Socialist party turned to referendums as well as to initiatives. It succeeded in getting several negative votes on laws. When it entered the government in 1944, however, it was through special circumstances (the climate of the "sacred union") rather than through the use of direct democracy.
Since the middle of the century there have been parties, especially the independents and later the nationalists, which have instigated popular votes. The independents have objected successfully to several protectionist measures; the nationalists have three times unsuccessfully demanded the repatriation of foreign workers. The Socialists and the Communists have also launched several initiatives on taxes, on social security, and on rents. But these initiatives have never won electoral endorsement.
Appeals to the people originate less often with the parties than used to be the case. The larger parties are united in government: since 1960 there have been two Radicals, two Christian Democrats, two Socialists, and one Center Democrat in the Federal Council. Switzerland no longer has a clear and solid opposition as it used to with the Catholic Conservatives and the Socialists. Demands for referendums and initiatives now have very diverse origins: trade unions, interest groups (tenants, craftsmen, traders, farmers, car owners), federalists determined to preserve cantonal autonomy against centralization (especially in French-speaking areas), ecological associations, feminist movements, students, sometimes even a firm that has the means to organize the collection of signatures and to mount a referendum campaign (such as the Migros Cooperative or Maison Denner).
Weakness of the Political Parties. Sometimes laws or decrees which have the support of the big parties and even of some of the small parties secure a majority only with the greatest difficulty or even actually get rejected. The establishment does not always win. That is understandable enough. In the whole electorate, perhaps 5 percent are militant supporters and 20 percent are "sympathizers" with one of the three big parties. At least half the electors who actually vote have no links with any party. They have little affection for constituted authority -- even some scorn. When they feel that their personal interests are threatened (and plenty of laws impose taxes or restrictions on them), they do not hesitate to vote no, without bothering about the fact that the parties are recommending the law and without making any effort to fit it into a more general framework. It is particularly difficult to get tax laws accepted. The people have even on occasion voted the federal government new functions and then refused the financial means to carry them out.
Defects of the Referendum A common criticism of the referendum is that it increases the influence of pressure groups and gives them a particularly effective weapon. In a representative democracy pressure groups have only limited means of giving weight to their demands -- financial promises and threats about the next elections. With referendums it is different. The big economic power blocs, which are consulted in the preparation of laws, let it be known that if their wishes are not met they will campaign against the law. The legislators are well aware that if the group has a large number of members, their votes cannot be ignored. In other words, the most successful referendums are those which do not take place. The circles which might have fought the law do not do so because it contains what they want. This is the explanation for the compromise character of a large part of federal legislation; parliament does not make laws in a sovereign way but always under the threat of a referendum.
The referendum in Switzerland has other snags. It is often accused of dealing with complicated matters. The questions put in Switzerland are seldom as simple as those posed by General de Gaulle: Are you for or against the independence of Algeria? Are you for or against the election of the president by the people? Switzerland has sometimes voted on such questions as women's suffrage (1959, 1971) and the liberalization of abortion (1977), but many laws and decrees are more complicated matters of economic policy, agricultural policy, taxation, or social security.
The interpretation of referendum results is not easy, particularly when they are negative. A law may be rejected for a number of very different and even contradictory reasons. In the case of the value-added tax, which the government tried to introduce in 1977 but which was defeated, some voted no because they wanted the federal government to cut down on expenditure; others because they thought it right in a period of slump to turn to borrowing; others because they regarded indirect taxes as unjust. When the causes of defeat are so varied it is difficult to know whether to try again and in what way.
Some Swiss think that they have to vote too often. For federal referendums alone there are votes every three months and almost always on three or four questions. Added to these are the (less frequent) votes in cantons and communes and, of course, ordinary elections.
Advantages of Direct Democracy But direct democracy has great advantages. It allows all citizens who so desire to express their opinion on the laws that are going to apply to them and thus, in some measure, to guide their own destiny. They cannot, in fact, vote on everything. Unless they decide to change the economic regime, Swiss voters do not vote on their salaries nor on private investment policy nor on the exchange rate of the Swiss franc, undoubtedly matters which affect them greatly. They do not even vote on the whole of Swiss legislation; only a minority of laws provoke demands for a referendum. Nonetheless the list of questions voted upon is impressive (see [updated]Table 3-2), and the most interesting and fundamental issues have, on the whole, emerged from popular initiatives.
Referendums force citizens to learn about the business of the state. Admittedly few enough do so -- perhaps only 5 to 10 percent make a serious attempt to inform themselves from the press, radio, and television. But that means that 200 or 300 thousand people do actually study public affairs instead of just glancing at election manifestos.
The referendum also provides a good way for cantons to defend themselves against federal legislation that is regarded as too centralizing. In 1874 referendums over laws were provided as compensation for the extension of federal competence. The federal legislator could make more laws, but the citizens of the cantons could block them.
Conclusion The composition of the Federal Assembly has varied little since 1919. Three major parties share three-quarters of the seats in the National Council, and proportional representation minimizes change. It is normal for the three parties to gain or lose half a dozen seats at most. Moreover, since 1960 the political composition of the Federal Council has been proportionate to that of the National Council. Thus regular elections have hardly any effect on the composition of either the Federal Assembly or the Federal Council. The elector chooses not between two programs but among a dozen programs often very little different from each other. Basically elections are about people.
The government prepares constitutional amendments and laws. Parliament discusses them. But the last word rests with the electors through the referendum. It is in referendums that electors express their political choices, decide on their economic system and their taxes, and draw their own line between capitalism and socialism.
Of course, laws and decrees submitted to referendum have the support of government -- which is, after all, their prime author. The government takes part in the public debate and recommends that electors accept the law or decree. Similarly, with the initiative, there is a clear government lead, though in this case it is normally asking electors to vote no.
If the electors do not follow the government's advice, ministerial responsibility is not involved. Only three times in 94 hostile votes (156, less the 67 initiatives rejected, plus 5 of the 7 initiatives accepted) has a federal councillor, who was particularly involved, resigned because of the snub: in 1891, 1934, and 1953. On every other occasion the government has bowed to the electorate, changed its line, and continued in power. The referendum therefore does not constitute a motion of censure.
Switzerland, then, is the home of the referendum. It is the country that has used referendums most. It has made referendums an integral part of its political life. It has shown that, at least in a small, sophisticated country, direct democracy can work with almost none of the ill consequences which have been ascribed to it in political argument elsewhere. Switzerland provided the model on which American and other evangelists for direct democracy based their cases in the 1890s and 1900s. And the Swiss can claim that the original continues to work better than its imitators.
Bibliography Aubert, Jean-Francois. Traite de droit constitutionnel. 2 vols. Neuchatel and Paris, 1967.
Neidhart, Leonhard. Plebiszit und Pluralitare Demokratie. Bern: Franke, 1970.
Ruffieux, Roland, ed. La democratie referendaire en Suisse, vol. 1. Analyse de cas. Fribourg, Switzerland, 1972. Analysis of nos. 83; 56, 69, 76; 102,107,108; 99,101,116,146.
Saladin, Peter. "Le referendum populaire en Suisse." Revue international de droit compare. Paris, 1976, pp. 331-347.
See also the annual bibliographies in Revue de droit suisse (Swiss law review in German and French), Basel.
For the results of referendums see Feuille Federate. The years 1848-1974 are covered by Lois et arretes federaux soumis au referendum, Arretes urgents, Initiatives populaires, Votations (Bern: Chancellerie, 1974), with a supplement up to 1975; in French and German.