The Use of Direct Democracy (Referenda and Plebiscites) in Modern Government
Daniel J. Elazar
Direct democracy, that is to say, the opportunity for the total citizenry to determine issues on the basis of voting for or against specific measures, as we know it, is a product of modernity just as much as any other aspect of modern democracy. It is grounded in the principle that political sovereignty resides in the people and therefore they may choose to determine certain policies directly rather than relying on their chosen representatives in government.
The original founders of modern democratic republicanism in the eighteenth century did not look kindly on direct democracy through referenda or plebiscites because they believed that governmental decisions of that kind required deliberation. That deliberation was possible only in face-to-face groups small enough for the development of considered opinions through discussion. That was possible only in very small polities. Since they believed that modern states inevitably would be larger, they favored the use of federalism and representative government to overcome problems of scale and deliberation.
Plebiscites and Referenda
The French revolutionaries were the first to introduce direct democracy as a technique to help achieve their revolutionary goals. The Jacobins invented the plebiscite which, from the first, was a device to assist governments of the kind that the late Jacob Talmon referred to (in a useful oxymoron) as "totalitarian democracies" to achieve legitimacy. They would have the people vote on a single issue when it arose to provide backing for the revolutionary regime. Plebiscites have continued in that form and have been used principally by totalitarian regimes seeking an ersatz legitimacy through voting consent after the fact, after an action has been completed.
The referendum, the other form of direct democracy, has a very different history. It was developed in Switzerland in the mid-nineteenth century to provide a democratic replacement for the traditional landesgemeinde or the assembly of all voters to make fundamental policy decisions. It was designed to offer a direct democratic way to solve the problem of scale recognized earlier, after the Swiss, too, perforce abandoned the small republics.
After Switzerland became a federation and it was no longer possible to assemble all the citizens for decision-making on federal issues, the referendum was introduced as a tool to assist representative government, not replace it. It was organized as a standard constitutional device initiated by the voters or by their representatives under certain set conditions and in certain set ways, and conducted under set ground rules. It was not a ratifying device but a means whereby voters, exercising their ultimate political sovereignty, could make policy decisions in certain cases.
These cases involved changes in the Swiss federal constitution or the constitutions of the cantons where cantonal referenda were introduced. It was also used for approval or disapproval of public policies of an especially controversial nature or around which there were special disagreements; or that had far-reaching implications. If Swiss legislatures had doubts about the acceptability of particular policies, they could recommend taking them to referenda, or if enough of the citizenry express their will through the signing of petitions to that effect, wished to have an opportunity for the whole citizenry to consider an act or to propose one, then a referendum was would be held. In such cases, initiation came from outside the government. For the Swiss and those who emulated them, the referendum became another tool of governance, used in tandem with the other tools of democratic republicanism.
Ways and Means
Switzerland remains the major example of regular use of the referendum. By now there are so many referendum proposals that the Swiss have established very strict conditions for holding referenda. A certain number of signatures is needed to conduct a referendum, no more than a set number of referenda can be conducted in a particular year, ones in excess of that number must wait their turn, and passage of a referendum requires special, extraordinary, and dispersed majorities. With all that, the referendum has become a major tool in the Swiss arsenal of democracy.
The other major users of the referendum are the state and local governments of the United States. The U.S. federal constitution does not make any provision for referenda nor has there ever been a national referendum or plebiscite in the United States. The American founders opposed the idea out of their belief in the necessity for deliberation, which led them to favor representative government, but in the late nineteenth century the American states began to introduce provisions for referenda in an effort aimed to improve popular control of governments deemed to have become captives of special interests. Today, 49 of the 50 states (only Delaware has not) provide for referenda in one form or another. As in Switzerland, they have been made very much a part of the normal governance process and the procedures for holding them constitutionalized and regularized.
In most other countries, direct democracy is used sparingly and involves some combination of the plebiscite and the referendum. In such cases it is the design of the measure and the majority required for it that will make the difference with regard to success or failure at the polls. For example, the British, whose constitution also opposes the use of direct democracy as an infringement on the sovereignty of Parliament, did conduct a referendum in recent times on increased home rule for Scotland and Wales. The Conservative government in power when the referendum was held designed it so that to be enacted the vote had to secure a majority of at least 40 percent of the registered (Scottish or Welsh) voters, whether they participated in the election or not. If less than that percentage turned out to participate in the referendum or even if the total favorable vote came to less than that, the measure automatically failed, thereby setting up a situation in which failure was virtually guaranteed.
Special, Extraordinary, and Dispersed Majorities
Plebiscites characteristically do not require special majorities. Fifty percent of the votes cast plus one is usually enough for passage, but they are so structured that normally the percentages in favor are overwhelmingly high. Referenda, on the other hand, normally require special majorities, that is to say, either a certain percentage of the total eligible electorate participating or a certain percentage of those voting in the general election also participating in the referendum. For example, in American states where elections are frequent and they are normally held two to four times annually when people are called to go to the polls, referenda are held at regular election times. Thus it is possible to require that a certain percentage of those voting in the regular election must participate in the referendum and, if that number does not, the referendum automatically fails even if it wins a majority of those who do participate.
Extraordinary majorities often are also required to secure passage, that is to say, a percentage that is more than fifty percent plus one. It may be fifty-five percent or two-thirds or higher, but it means that even if a majority vote for a particular measure, unless a sufficient majority do, the measure fails. The use of dispersed majorities also is common. For example, in Swiss federal elections not only must a federal majority be obtained, but majorities must be obtained in a majority of the cantons. In some American states majorities have to be obtained in a majority of counties. Sometimes if an action affects a particular part of a state, a majority has to be obtained statewide and in that particular part. All of these are considered legitimate means to assure that matters deserving referendum are decided not by the accidental results of a particular vote on a particular day but by a more clearcut expression of public opinion.
The Wording of the Question
A major element in determining the results of a referendum is to be found in the way that the question is put before the voters. Hence the wording of the question becomes a matter of considerable importance. In the American states, for example, it was found that legislatures forced to submit certain measures to the voters would word the questions to be placed on the ballot in statutory language so that the average voter could not understand what he or she was being asked and in many cases would not vote at all in the referendum. That, coupled with the requirement for a special majority, usually sufficed to defeat the measure. As a result, reform groups in many states successfully pressured for all referenda placed on the ballot to be expressed in terms understandable to the voters, either establishing a special commission to undertake all wordings or to approve wordings submitted. Thus the wording of the question and who does it are important issues in the politics of referenda.
The matter of scheduling referenda is also one of considerable importance in influencing the result. If a referendum is held at the same time as a regular election there will be a greater voter turnout which may make a difference in the result. If the referendum is held separately, that also may make a difference because often fewer voters turn out so the matter is decided only by those with a special interest in it.
The posing of the same question in multiple forms can confuse the voters and is sometimes used where it is legal to do so. For example, in California a few years ago, efforts to introduce ceilings on auto insurance premiums led to the introduction of six referenda on the subject, each representing a slightly different variant of the idea or opposing it altogether. California is just the opposite of Switzerland in the sense that holding referenda is similar to a free-for-all. Whoever qualifies gets on the ballot for the next election. In this case, voters were presented with a situation in which six propositions, each cleverly worded, confronted them when they went into the voting booth. That matter finally had to be untangled by the courts after years of wrangling.
To summarize, referenda have become legitimate tools in the arsenal of democratic self-government, especially if they are anchored in the constitutional governance process of the polity and are not used as plebiscites simply to ratify government actions. The use of occasional referenda in the manner of plebiscites can be justified if they are used in a non-plebiscitory manner. Referenda are best used in the policy process when their enactment requires either special, extraordinary, and/or dispersed majorities so that the results are clear and cannot be interpreted as overaffected by the vagaries of timing. The wording of the question posed to the voters is of great importance and, for fairness, should be done as neutrally as possible. If all these matters are attended to, then the referendum can be a useful tool. If not, it merely confuses and obfuscates.