Kris William Kobach, The Referendum: Direct Democracy in Switzerland, 1993.
2 The theoretical role of the referendum
Direct versus representatite democracy
Before exploring Swiss direct democracy further, it is worthwhile to consider the theoretical position of the referendum as a structural component of democratic systems. This provides a framework within which the device may be studied. If we take Abraham Lincoln's description of government 'of the people, by the people, and for the people' to be the ultimate aspiration of democracy, we find that few political systems measure up to this standard in its purest sense. The only true expression of government by the people occurs in systems where the people literally govern themselves. The citizens themselves make their own laws. If there are n citizens in the polity, then the governing body must contain n people. Any less, and the essence of ideal democracy is sacrificed because some are denied the privilege of governing themselves. Although this form of government may have existed at one time in the mountain cantons of Switzerland or in the small settlements of New England, it does not exist today. Even in such self-governing societies of the past, the full expressions of ideal democracy was not realized. Participation was usually denied to women, and often limited further to men of standing or wealth.
The complexity and time-consuming nature of modern government, particularly in larger political communities, render such ideal forms of direct democracy impractical. We accept government by elected representatives as a necessary compromise, receiving (we hope) more expert and informed decision making while pushing the business of government a step away from the citizenry. The amount of responsibility entrusted to representatives varies between political systems. Each democracy may be understood as occupying a place on a linear spectrum, with ideal direct democracy at one end and purely representative systems at the other. Most democracies today are nearer to the representative extreme.
According to Lijphart, a representative democracy is made more direct by the inclusion of various elements which strengthen the voters' influence over the government, of which he describes four: presidentialism, the recall, primaries, and the referendum.1 Presidentialism offers the voters increased control over the executive through the direct, popular election of the office. It stands in contrast to parliamentarism in the executive branch, an arrangement whereby the executive is directly responsible to the legislature, not to the people. The recall, on the other hand, offers the voters increased control over the legislature. As Rousseau, an early critic of representative democracy, argued: 'The English people believes itself to be free; it is gravely mistaken; it is free only during the election of Members of Parliament; as soon as the Members are elected, the people is enslaved; it is nothing.'2 The recall attempts to solve this problem by allowing a dissatisfied constituency the right to petition for a special election to remove its representative. The third device, the primary, offers enhanced voter control over both the executive and the legislature by taking the power of candidate selection from the parties and vesting it in the electorate.
All three devices provide voters with more direct control over their elected leaders, yet each assumes the existence of representative institutions between the people and the legislative process. The referendum goes a step further, by partially circumventing representative bodies to allow voters direct control over lawmaking. Of these four instruments, the referendum is the most common. It has been used at one time or another in the majority of democracies. However, it has been institutionalized in very few. In most countries, it remains an ad hoc instrument at the disposal of the government. The other three devices are relatively rare. Popularly elected chief executives exist only in a handful of countries, most notably the United States, France, Finland, Colombia, Venezuela, Peru, Brazil, and Argentina. Presidentialism has also taken root in the fledgling democracies rising from the ashes of the collapsed Soviet empire, specifically in Poland and Bulgaria. Primaries occur only in the United States and Israel, and the recall is not used anywhere at the national level. Of these four devices, Switzerland possesses only the referendum (in tandem with the initiative) at the federal level. Its executive is considered partially presidential in nature; its seven members may not be dismissed by a parliamentary vote of no confidence, and the term of office is fixed at four years. However, the Federal Council is not popularly elected.
Swiss political culture is unquestionably more attuned to direct democracy than to representative democracy. As Benjamin Barber notes:
In the Swiss system, representation has never been given the force it has had in the Anglo-American system, not because there are no representative institutions, . . . but because it is not the crucial feature of democratic activity in the Swiss state. Rather, citizenship and institutions structured around active citizenship have played the role that representative parties have played elsewhere. These institutions include a citizen army, assembly democracy at the cantonal and local level, cantonal and federal initiatives and referendums for constitutional and statutory legislation, and common work traditions in the Alpine communes.3Political competition, particularly in the last three decades, has focused on referendal struggles, rather than on parliamentary elections. As shown in Chapter Six, the impact of direct democracy upon policy formulation often overshadows that of representative institutions in Switzerland.
Implicit in systems of direct democracy is the presumption that sovereignty lies with the people of a nation. Therefore, the referendum is theoretically incompatible with the notion of parliamentary sovereignty, central to the Westminster model of democracy. The concentration of all political authority in the national representative chamber allows no room for a competing authority resident in the citizenry. In other words, a parliament is not sovereign if any of its laws can be overruled by the voters. Accordingly, Lijphart classifies Britain as an exclusively representative democracy'.4
However, theory has not always coincided with practice in the United Kingdom. In 1975, Britain held its first and only nationwide referendum on the question of European Community membership. The action provoked a lengthy polemic concerning the impact of referendums upon British political institutions. Legally speaking, there was no infringement upon parliamentary sovereignty because Parliament called the referendum and could ignore the result if it chose to do so. Politically speaking, ignoring the outcome would have been impossible. New Zealand has also broken the rule that referendums are incompatible with the Westminster model, holding ten nationwide referendums since 1908. The only Westminster-style democracy that has remained untainted by the referendum is India.5
Finally, one semantic note bears repeating at this point. The phrase direct democracy' is often used as a substitute for referendums' or for 'semi-direct democracy' in political science writings. Strictly speaking, this is inappropriate because direct democracy refers to ideal democratic forms in which all citizens vote on all decisions. Switzerland's is technically a system of semi-direct democracy. However, the use of the term 'direct democracy' is forgivable because there are few appropriate synonyms for 'referendums'; and semi-direct democracy' is a rather cumbersome phrase. Consequently, in an effort to keep this work from becoming more tedious than it has to be, I will intentionally commit the same error, periodically using direct democracy' in place of 'referendums' or semi-direct democracy' when context prevents any misunderstanding.
Consensual versus majoritarian democracy
Returning to Lincoln's formulation of ideal democracy, we find another problem inherent in its realization. Government of, by, and for the people assumes that a Rousseauian general will is expressed in all legislation. But how is the will of the people to be determined? '"By majority vote? Decision by the majority usually means that there is a minority whose preferences are neglected. It can hardly be said that a decision opposed by 49 percent of a country's citizens truly represents the general will. In federal systems with bicameral legislatures, the size of the disaffected minority can be reduced by the requirement of double majorities, whereby laws must be approved in both houses, one of which represents all constituent states equally.6 On the other hand, the alternative of hammering out a compromise acceptable to all parties may come no closer to expressing the general will. Instead of a scenario in which 51 percent of the people are truly satisfied, compromise may produce a situation in which no one is fully satisfied with the outcome. Furthermore, compromise entails bargaining, and bargaining usually involves restricting participation to a few Elites representing various factions. In the end, compromise decisions may be ones that are made by a select few and are fully satisfactory to no one â€" hardly an embodiment of the will of the people.
This dilemma is mirrored by a second major dichotomy in democratic systems, that of majoritarian versus consensual government. In the former there is intense competition for power, which the majority enjoys with few restraints. As Jiirg Steiner describes it, there is no concern for enlarging agreement beyond the number required to win. In contrast, in the consensual democracy model, discussion continues until a solution is found which is acceptable to all participants. If a vote is taken, the purpose is only to ratify a commonly accepted decision.7 Consensual systems seek a wide distribution o/ power, with important decisions made collectively by all significant factions in society. Typically, this governing arrangement appears in heterogeneous or deeply divided societies in which outright majority rule is considered unacceptable. Usually, numerous safeguards are employed to prevent infractions upon minority rights. Other terms are also used to describe consensual democracy, such as consociationalism, amicable agreement, and Konkordanz-Demokratie. There are at least eight distinguishing elements typical of consensual democracy: executive power-sharing in grand coalitions, the separation of powers, a bicameral legislature with minority representation, a multiparty system, multiple dimensions of party competition, proportional representation, federalism, and a written constitution providing for minority vetoes. In contrast, the majoritarian model is marked by the following: the concentration of executive power in a one-party cabinet, executive dominance of the parliament, unicameralism, a two-party system, a single dimension of party competition, a plurality electoral system, unitary government, and parliamentary sovereignty with an unwritten constitution.8 This model is essentially based upon the Westminster system. Not all of the elements are equally necessary to its majoritarian character. For example, a written constitution would probably change little in this respect.
Although Switzerland is a near-perfect example of consensual democracy in that it meets every one of these criteria, the inclusion of the referendum breaks the mold. As Lijphart concludes, 'Direct democracy can . . . not be regarded as either typically majoritarian or typically consensual. In fact it is a foreign element in both majoritarian and consensus democracy because it is the antithesis of representative democracy.'9 Nor do referendums occur more frequently in either system. Nonetheless, referendums seem strongly majoritarian in nature, at least on a superficial level. They usually require only a simple majority, and there are clear-cut alternatives with no bargaining or compromise. They may even be more majoritarian than Westminster-style democracies because minorities are not permitted to negotiate alterations in the measure, nor are minorities afforded the possibility of trading support on other matters for revisions of the measure in question. Referendum votes usually offer only two solutions and tend to close the door to further consideration of the issue for several years after the vote. Clearly, the referendum's actual mode of operation is extremely majoritarian. Indeed, opponents of the referendum have stressed the extent to which it can facilitate tyrannical majorities. This potential danger to minorities has been demonstrated in isolated instances in American states, where popular majorities in referendums have overturned laws designed to protect racial or other minorities.10 On the other hand, referendums do allow political minorities to challenge decisions of the legislative majority, sometimes successfully. In this sense, majority tyranny at the parliamentary level can be combatted by mobilized minorities in the population. Of course, their success depends upon persuading sympathetic voters outside of the minority group. Tyranny of the majority can also be prevented through judicial review to protect fundamental rights from violation by popular legislation.
In sum, the device is majoritarian in nature; but it does not necessarily permit majorities to run rampant over minority groups, and it can operate to protect minorities, as is demonstrated in subsequent chapters. A related question is whether the referendum encourages or discourages consensual behavior among political actors, an issue which is particularly relevant in Switzerland. The combination of majoritarian referendums with Swiss Konkordanz-Demokratie would appear to be an anomaly. Paradoxically, as is explained in Chapter Six, referendums induce Swiss MPs to behave in a more consensual manner. The threat of a referendum compels parliamentarians to consult affected interests, act moderately, and offer compromises to win over opponents of legislation.
The members of the Federal Assembly avoid the legislative challenge with good reason. The government lost the majority of optional referendums between 1875 and 1992, with the people rejecting its laws in 59 of 112 cases. According to Smith's classification scheme, the optional referendum in Switzerland has been strongly 'anti-hegemonic', or detrimental to the expressed interests of the regime.11 This is, no doubt, related to the fact that it is uncontrolled (called by the voters, not by the government). Outside Switzerland, the overwhelming majority of referendums have been controlled and pro-hegemonic, a fact that has led some observers to view the referendum as a rather bogus and predictable device of self-legitimization. This blanket assessment ignores the fact that controlled and uncontrolled referendums are very different devices. Variations in the manner in which referendums are called produce entirely different effects on the surrounding political system.
Central issues in the referendum debate
There is an ongoing debate regarding the theoretical and practical consequences of referendums, typically intensifying whenever a country or sub-national entity considers adopting the device as part of its political system or using it in an isolated instance. The renewed interest worldwide since the early 1970s has resurrected arguments that have been repeated with minor variations for more than 200 years. The claims made for and against referendums focus on four basic issues described below.
This argument is, perhaps, the most obvious in favor of referendums; it is also the least assailable. Direct democracy undeniably offers all citizens the opportunity to play an immediate role in deciding the laws that govern society. Placing intermediary organizations such as legislatures and parties between the voter and the law inevitably warps the expression of popular preferences. Just as successive messengers distort the original message with each telling, parties and parliaments implant biases that appear in the final legislation. They twist popular demands to fit their own agendas, and they suppress issues that may anger financial contributors or special interests. Parties aim to maximize their influence and enact their platforms, and politicians seek job security. Inevitably, these concerns influence the expression of popular opinion in legislation. The solution lies in bringing decisions to the people themselves whenever possible. The initiative takes the process of self-government even further by offering citizens the right to place issues on the table as well as to decide them.
Numerous theorists have warned of the dangers inherent in representative government. As the French sociologist, Pierre Bourdieu, writes: 'More and more, politics is becoming the concern of a small caste. The distance between the political professionals and the normal people never ceases to widen.'12 Rousseau's warning that voters are only truly free on election day is taken a step further by Barber, who argues that even the act of electing representatives erodes self-government: 'To exercise the franchise is unhappily also to renounce it. The representative principle steals from individuals the ultimate responsibility for their values, beliefs, and actions. And it is far less hospitable to such primary Western values as freedom, equality, and social justice than weak democrats might wish.'13 Barber points to the symptoms of 'weak democracy' in America, where the prevailing ethic of liberal democratic pluralism has endorsed representative democracy as the only acceptable form of political expression and has reduced politics to a mere chambermaid of private interests.14
Barber's position conflicts with classic contractarian theories of the state such as Locke's, as well as with more recent versions such as Rawls'. The Rawlsian notion of liberal neutrality, that the political community is essentially a vehicle for the protection of rights and the prevention of gross inequalities, finds little sympathy in Barber's Weltanschauung. Like Aristotelian and communitarian theorists, he sees the political community both as a means to other goods and an end in itself. Popular participation in lawmaking is an essentially ingredient in 'strong democracy', defined as 'politics in the participatory mode where conflict is resolved in the absence of an independent ground through a participatory process of ongoing, proximate self-legislation and the creation of a political community capable of transforming dependent, private individuals into free citizens and partial and private interests into public goods'.15 This school of thought echoes the arguments of American Progressives and Populists in the early years of the twentieth century. They maintained that the direct participation of citizens in civic affairs cultivates a richer sense of social duty and belonging in the individual. Recognizing man as a social animal, they claimed that a high degree of participation in civic affairs is necessary for the full realization of what it means to be human.
Barber maintains that direct democracy was shunned by early liberal thinkers such as Mill, Tocqueville, and Madison primarily because of misplaced fears of tyranny of the majority. Consequently, the people were only trusted so far in governing themselves. Over the centuries, such fears have reduced politics to zoo-keeping:Like captured leopards, men are to be admired for their proud individuality and for their unshackled freedom, but they must be caged for their untrustworthiness and antisocial orneriness all the same. Indeed, if the individual is dangerous, the species is deadly. Liberal democracy's sturdiest cages are reserved for the People.16Although this picture probably overstates modern hostility toward purer forms of self-government, it is not far off the mark. Again and again, one hears the clarion call of opponents of direct democracy: the people are not competent to govern themselves.
Politics for amateurs?
The argument that citizens are not fit to govern themselves is as old as democracy itself. As Montesquieu warned, 'The motion of the people is always either too remiss or too violent. Sometimes with a hundred thousand arms they overturn all before them; and sometimes with a hundred thousand feet they creep like insects.'17 The average citizen of today is considerably more educated than his counterpart in Montesquieu's time. However, the governing of a modern state involves an extremely complex balancing of interests and priorities. It also requires a detailed knowledge base which average citizens do not have the time or inclination to cultivate. Elected representatives are paid to spend their hours studying the intricacies of modern policy. As some critics of direct democracy have argued, boiling an issue down to a choice between two so-called solutions is more likely to oversimplify the problem rather than enlighten the electorate.18 Even Rousseau had reservations about the ability of citizens to make policy:It follows from what I have argued that the general will is always rightful and always tends to the public good; but it does not follow that the decisions of the people are always equally right. We always want what is advantageous but we do not always discern it. The people is never corrupted, but it is often misled; and only then does it seem to will what is bad.19Opponents of referendums claim that this risk of deception is just as great in the age of broadcast media. Far from serving to educate society, the media can be misused in partisan efforts to persuade the voter. Biased news coverage, deceptive advertising, and unequal resources available to competing sides can skew the information received by the public. Information does not always elucidate; it can also cloud an issue.
This claim is a compelling one. However, there are valid counterarguments. Clearly, the average education level of citizens in virtually all democracies is considerably higher than it was in the first half of the twentieth century and is vastly superior to that in Montesquieu's time. In any event, Swiss political scientist Wolf Linder believes that the relative ignorance of citizens on some referendum issues is not cause for worry. 'He who drives an automobile needs signposts, not mechanical expertise, in order to reach his destination.' Government officials, parties, and MPs all fulfill this signposting function. It is in their interest to convey vital information on the issue at hand to the voters. Over time, citizens will learn which sources of information are most reliable.20 Furthermore, many policy questions can be addressed adequately without precise knowledge in the subject area. Indeed, legislators in virtually all democracies specialize only in certain areas â€" usually governed by the committees on which they serve. Vet, most of their decisions concern issues outside of their specialty. They too follow signposts in voting, provided either by their party, by special interests, by bureaucrats, or by the recommendation of the legislative committee concerned. Thus, the perspective of most legislators on any given question is only marginally more informed than that of the average citizen. Furthermore, a visit to the legislature of virtually any democracy during a debate is usually sufficient to cast doubt on the notion that MPs are intellectual Titans. As far as biased sources of information are concerned, legislators are not immune. Persuasive lobbying, combined with the lure of campaign contributions from special interests, is often quite effective in coloring a legislator's perception of reality.
Proponents of referendums also maintain that it is easy enough to educate citizens in the months preceding a popular vote. If sufficient media are utilized, the essential facts can be disseminated among voters. In Switzerland, every member of the electorate is sent a government-sponsored pamphlet detailing each side's position. Admittedly, as Aubert estimates, in some referendums only 5-10 percent of voters make a serious attempt to digest this and other information.21 However, even if most of this information is disregarded, the voter cannot but notice the arguments presented on posters and in large newspaper advertisements as the voting date draws near. Consequently, there is a good chance that citizens will at least become marginally informed.
Indeed, it can be argued that the relative ignorance of voters on certain issues makes direct democracy all the more desirable because referendums serve to educate them. In most representative democracies, the majority of citizens are content to remain relatively uninformed about political issues, allowing the processes of government to take place without their attention or participation. At election time, they may pause to read a newspaper article about a controversial issue, but only a minority of citizens will become well-informed. Choosing among candidates can be done on many grounds other than issues. Party loyalties, candidate charisma and honesty, the past experience of the candidates, and many other criteria compete for voters' attention. There is little incentive for citizens to base their votes on a thorough understanding of the policies at stake when other decisionmaking criteria take less effort. Although referendums cannot guarantee an issue-conscious citizenry, they can encourage people to become informed about the specific question at hand. The voter has little choice but to base his decision upon a consideration of competing policies.
Even if advocates of referendums are unable to establish that citizens are competent to pass their own laws, they still have a final argument in reserve â€" even if everything goes awry, the people have the right to be wrong. Many of the charges levied against direct democracy stem from the assumption that better decision making is the ultimate goal of government. Of course, if this were absolutely true, then government by a Platonic philosopher-king or by a carefully selected technocracy would be preferable to democracy. Most societies are willing to sacrifice expertise in the name of democracy, and the trade-off is beneficial in the long run. The government should not paternalistically tell the people what they need. In doing so, it ceases to operate as an extension of the will of the nation. The state should serve to provide what its citizens want and no more, for they are the best arbiters of their own needs.
The accuracy of representation
This issue strikes at the heart of all representative democracies. Rousseau asserted long ago that true representation is a fallacy:Sovereignty cannot be represented for the same reason that it cannot be alienated; its essence is the general will, and will cannot be represented â€" either it is the general will or it is something else; there is no intermediate possibility. Thus the people's deputies are not, and could not be, its representatives; they are merely its agents; and they cannot decide anything finally. Any law which the people has not ratified in person is void; it is not law at all.22Although this position is an extreme one, most governments are sensitive to the need to maximize the representativeness of political institutions and electoral systems. British experience has demonstrated how plurality electoral systems can award overwhelming parliamentary majorities to parties that are supported by less than 45 percent of the voting electorate. Although it is more accurate, the alternative of proportional representation is also far from perfect. The fact that a voter supports a party does not necessarily mean that his policy preferences coincide with his party's on every issue. Many voters support a party or candidate on the basis of only one or two issues on which they feel strongly. They may disagree with the rest of the agenda entirely. Other voters pay little attention to the issues, supporting their chosen candidates for other reasons. Another possibility is that candidates from all the major parties in a constituency may be in loose agreement on an issue, when in fact a large segment of the district's population holds a dissenting view. The voter falling through the grate in this manner then has no way to express his issue preference via the ballot box. This was case in some districts of Britain in the 1970 general election, after which Parliament voted to enter the EC.23
For all of these reasons, a representative may be ill-qualified to speak for his constituency on any given topic. In an entire parliament, this inaccuracy is multiplied many times over. Consequently, the distribution of opinions in a supposedly proportional parliament can offer a very unrealistic reflection of sentiments in society. All legislative bodies are liable to such representational distortion. Switzerland provides convincing evidence of this problem. According to the Loosemore-Hanby index of proportionality in PR systems, Switzerland's electoral system is one of the least disproportional (and therefore, most accurate) in the world, in terms of translating party preferences into parliamentary seats.24 Yet, as is demonstrated in the following chapter, the Swiss parliament continually misjudges the opinions of its electorate, finding that legislation which passes resoundingly in the National Council is later overturned by referendum voters. If one of the most proportional parliaments in the world cannot .mirror the preferences of its voters consistently, then clearly there are inherent flaws in political representation. An 'electoral mandate' cannot exist.
Even further distortion in representative assemblies occurs as a result of 'log rolling'. The trading of support on legislation benefiting narrow client groups or constituencies has long been practiced in the US Congress. Any representative body is susceptible to the problem. It occurs when a measure's narrow benefits to a select few are outweighed by the cost to the general public. Alone, it would never become law. However, when the beneficiaries of other similar bills agree to vote for it in return for support on their own special packages, the log begins to roll. The result is a collection of measures that benefit only selected groups, none of which are in the general public interest. In contrast, when issues are ultimately decided by referendum, such legislative bartering is impossible.
Referendums, it is argued, solve the problem of representational distortion by overruling representative bodies or by circumventing them entirely. A government can only be certain that an action is in accordance with the popular will if the people legitimize it with their own stamp of approval. However, this argument is not watertight. Defenders of representative democracy can respond that referendums fail to weigh the intensity of beliefs. Indeed, some observers deny that referendums are any better at mirroring the views of society than are representative assemblies.25 For example, if 51 percent of voters cast ballots in favor of a referendum proposition, it passes. The fact that 49 percent oppose it passionately, while those in favor are unenthusiastic, cannot be taken into account. In utilitarian terms, society would be better off if the measure were rejected. Legislators, on the other hand, are likely to afford greater weight to strongly-held opinions. If they do not, the offended 49 percent will pose a real electoral danger in the future. Thus, it is claimed, legislatures can reflect the subtleties and depth of public opinion, whereas referendums are strictly one-dimensional.
However, this line of argument is flawed because it assumes that which it must disprove â€" namely, that strongly-held opinions motivate participation in voting. If this is the case, then the mobilized minority will participate in numbers great enough to reject the measure in a referendum, just as they will turn out on election day in numbers great enough to defeat the politician. In either case, the intensity of beliefs is reflected in the level of participation; therefore, representative systems are no more sensitive to this than are referendums. However, a more damning indictment of referendums is suggested by this analysis. If participation levels fluctuate widely, then it is possible for mobilized minorities to gain disproportionate influence on particular questions. Chapter Five explores this issue in detail.
Although the distortion of popular opinion is involved in both direct democracy and representative democracy, it is undeniably a greater problem for the latter. There is one final argument as to why this is true. It is claimed that representative assemblies cannot mirror their citizens' views accurately when the composition of the former is highly dissimilar to that of the latter. In Switzerland, the socio-economic characteristics of members of the Federal Assembly have always differed considerably from those of most of the electorate. On average, MPs have much higher incomes than the rest of the population. Their educational training is greater; they tend to come from more privileged backgrounds; and lawyers, doctors, and professors are vastly overrepresented.26 Arguably, if a legislature is fundamentally unlike its citizenry, then it will have difficulty representing the views of the people faithfully.
Direct democracy's impact on representative democracy
Any political system which incorporates referendums must necessarily retain representative institutions to handle the bulk of lawmaking. Given that we are stuck with parliaments, is it not a good idea to prevent the erosion of their discretion and authority? At the time of the framing of the US Constitution, James Madison predicted that recurrent 'appeals to the people' would destabilize Congress and therefore argued against such departures from representative government:[I]t may be considered as an objection inherent in the principle, that as every appeal to the People would carry an implication of some defect in the Government, frequent appeals would, in great measure, deprive the Government of that veneration which time bestows on everything, and without which perhaps the wisest and freest Governments would not possess the requisite stability 27By usurping power from representative institutions, referendums arguably jeopardize the effectiveness of parliaments. This is not only due to the fact that legislatures are compelled to act cautiously in order to avoid any popular challenge. As legislatures are weakened, they lose esteem in the public eye. Consequently, talented citizens are less likely to run for office. In addition, people may treat the decisions of their legislature with impunity if they know that any law is open to referendal challenge.
Clearly, the referendum reduces the discretion and power of legislatures. However, it does not necessarily weaken their authority. Arguably, people treat laws with more respect when they know that the statutes possess either the tacit or explicit support of a majority of the citizens. If the option to challenge a law via referendum is available, then the fact that a law goes unchallenged implies that the people have tacitly given their consent. Thus, the referendum can also work passively, legitimizing decisions made by representative assemblies even if the issue does not go before the people.
Butler and Ranney suggest that there are two components of political legitimacy: institutions that are traditionally, legally, and morally acceptable to the citizenry; and the popular conviction that the decisions themselves remain within the constraints of fairness and decency.28 The referendum works to ensure both. A decision in which all have had the opportunity to participate is almost certain to be more legitimate in the eyes of citizens than one in which they are denied a role, even if the matter is decided by a narrow majority. It comes as no surprise that, in countries which use referendums only infrequently, the process is reserved for the most important questions or for constitutional decisions, which require the extra legitimacy conferred by a popular vote.
It is also argued that referendums discourage responsible government. They provide a means of suspending collective responsibility in cabinet governments. When a cabinet is divided over an issue, it can simply refuse to accept responsibility for its decision and turn the question over to the people. For example, in 1980 Sweden's non-socialist coalition government was unable to agree upon a formula for phasing out nuclear power and was unwilling to face the public criticism that might result. Instead of ascertaining the strongest policy and standing by their decision, they copped out and held a referendum.
When popular rejections of government decisions become commonplace, individual ministerial responsibility in the sense of resigning from office as a result of unpopular policies is also likely to disappear. In Switzerland, there is little ministerial responsibility in this sense. In only three of the 121 times when the people rejected the government's position in a referendum or initiative vote did the Federal Councillor who was involved resign: in 1891, 1934, and 1953.29 In every other instance, the government merely changed tack; and the relevant minister continued in office. Of course, ministerial responsibility to the extent of resignation has become rare even in Britain. There have been only four postwar resignations by British Cabinet ministers as a result of policy decisions: in 1954,1962,1982, and 1986.30
Referendums may also weaken governmental responsibility in the general sense that legislatures may become less willing to make tough decisions. If the escape route of direct democracy exists, it is tempting to pass controversial topics on to the electorate. However, allowing particularly controversial issues to be decided by the voters is not necessarily a bad thing. Perhaps the most fundamental questions of government should be decided directly by the people, rather than by politicians seeking to attract campaign funding and interest group endorsements. Furthermore, it is these issues that are usually the easiest to comprehend. The arguments are familiar, and most people already have an opinion. Indeed, this is the reason that legislators are hesitant to take a stand in the first place.
The purpose of this study is not to offer a normative judgment on the referendum and declare one side of the debate victorious. Indeed, it is difficult to assess most of the above arguments objectively. These points of controversy have been highlighted because they offer the reader a useful theoretical vantage point. They also present hypotheses that can be tested in the case of Switzerland. The previous chapter presented an historical account of the Swiss referendum and offered a number of preliminary conclusions on its impact. The following chapter takes a more quantitative look at the device, attempting to identify meaningful trends and patterns in its employment.
1. Arend Lijphart, Democracies: Patterns of Majoritarian and Consensus Government in Twenty-One Countries (New Haven: Yale University Press, 1984), p. 198.
2. Jean-Jacques Rousseau, The Social Contract, trans. Maurice Cranston (Middlesex: Penguin, 1968), Bk. Ill, Ch. 15, p. 141.
3. Benjamin Barber, 'Participation and Swiss Democracy', Government and Opposition, 23, 1 (Winter 1988), 36-37.
4. Lijphart, p. 9.
5. However, several regions of India made use of state-defining referendums at the territorial level before joining the country. In 1947 and 1948, citizens of border territories voted to become part of either India or Pakistan; and in 1975, Sikkim voted to abandon its monarchy and join India.
6. As explained in the previous chapter, double majorities are also be required in some Swiss referendums. A majority of all voters is required, as well as majorities in a majority of cantons.
7. Jürg Steiner, Amicable Agreement Versus Majority Rule: Conflict Resolution in Switzerland (Chapel Hill: University of North Carolina Press, 1974), p. 5.
8. Lijphart, pp. 6-30.
9. Ibid., pp. 31-32.
10. David Butler and Austin Ranney, eds., Referendums: A Comparative Study of Practice and Theory (Washington, D.C.: American Enterprise Institute, 1978), p. 36. A recent example of this occurred in 1992 in Colorado, where voters adopted a state constitutional amendment prohibiting laws offering homosexuals special protection against discrimination.
11. Gordon Smith, 'The Functional Properties of the Referendum', European Journal of Political Research, 4, 1 (Mar. 1976), 6.
12. Quoted in Andreas Gross, '1988 â€" ein Jahr erfolgloser Volksbegehren', Tages-Anzeiger, 5 Jan. 1989, p. 9.
13. Benjamin Barber, Strong Democracy: Participatory Politics for a New Age (Berkeley: University of California Press, 1984), p. 145.
14. Ibid., p. 118.
15. Ibid., p. 132.
16. Ibid., p. 21.
17. Montesquieu, The Spirit of the Laws, ed. T. Nugent (New York: Hafner Editions, 1949), p. 101; cited in Barber (1984), p. 104.
18. See David E. Lea (of the British Trades Union Congress), in Austin Ranney, ed., The Referendum Device (Washington: American Enterprise Institute, 1981), p. 16.
19. Rousseau, Bk. U, Ch. 3, p. 72.
20. Wolf Linder, Politische Entscheidung und Gesetzvollzug in der Schweiz (Bern: Paul Haupt, 1987), p. 214.
21. Jean-Francois Aubert, 'Switzerland', in David Butler and Austin Ranney, eds., Referendums: A Comparative Study of Practice and Theory (Washington, D.C.: American Enterprise Institute, 1978), p. 65.
22. Rousseau, Bk. III, Ch. 15, p. 142.
23. Philip Goodhart, in Austin Ranney, ed.. The Referendum Device (Washington: American Enterprise Institute, 1981), p. 1.
24. The Swiss index of disproportionality is very low â€" only 1.5. The Netherlands, Israel, and Sweden are the only countries which can claim to have a more proportional parliament. From John Loosemore and Victor J. Hanby, 'The Theoretical Limits of Maximum Distortion: Some Analytic Expressions for Electoral Systems', British Journal of Political Science, 1, 4 (Oct. 1971), 467-77. Cited in Lijphart, pp. 160-62.
25. See Butler and Ranney, p. 34.
26. Ruth Luethi, Luzius Meyer, and Hans Hirter, 'Fraktionsdisziplin und die Vertretung von Partikularinteressen im Nationalrat', in Martin Graf and Annemarie Huber, Das Parlament â€" oberste gewalt des Bundes? (Bern: Haupt, 1991), p. 55.
27. James Madison, The Federalist, No. 48, ed. Henry B. Dawson (New York: Charles Scribner's Sons, 1897), pp. 350-51 (originally published on 5 Feb. 1788).
28. Butler and Ranney, p. 24.
29. Aubert, p. 65. The number 121 reflects the total up to the end of 1992.
30. R.M. Punnett, British Government and Politics, 5th edn (Aldershot: Gower, 1987), pp. 200-3.