Post-Brexit thoughts on referenda, especially in the context of electoral reform
In the aftermath of the Brexit referendum, there is renewed debate about the lessons, if any, that it might hold for other democratic polities on the use of the referendum generally, and in particular for Canada about an eventual referendum on electoral reform. Many of those opposed to such a referendum have seized on the political ignorance and the acrimony on display in the United Kingdom to bolster their arguments. The problems they point to are real, but the case against a referendum on electoral reform is still not compelling.
First of all, it is important to note that the question of whether a referendum is the right way to settle a political controversy does not arise in a vacuum. If the issue has impressed itself with sufficient urgency on the public debate ― and in the Brexit case, this may be an open question ― it has to be resolved somehow. If not by referendum, then by a parliamentary vote. (Sometimes, adjudication or a reference to a court are also available, but not that often, so let’s discount that possibility here.) To say that a referendum is not the way to resolve the issue, it is not enough to point to that procedure’s flaws. It is also necessary to show that they are worse than those of the alternative. Moreover, it is not enough to point to one referendum that turned out badly (whatever “badly means), or to one successful parliamentary debate, to settle the question. Examples are useful, but to be persuasive, they have to be related to some underlying features that the procedures in question will usually, if not always, have.
Now, that political ignorance affected the Brexit vote, and would affect any other referendum, is not exactly a surprise. Ilya Somin discussed the data on political ignorance’s effects on the Brexit referendum in a detailed post at the Volokh Conspiracy, but those looking for a tl;dr can refer to this tweet from Google Trends showing that, after it was announced that the UK voted to leave the European Union, its residents started looking for answers to questions such as “what is the EU?” and what leaving it entails. Presumably, more than a few of these suddenly-curious people had cast their ballots without having any idea of what they were doing. There was also anecdotal evidence of “leave” voters having second thoughts after their preferred option turned out to have won. And given how little informed voters generally are, there is no reason to think that this particular referendum was an outlier.
There was also plenty of evidence of bitter divisions in the British polity in the aftermath of the vote. That too may be a feature of many referendums, though it’s not clear to me that it has to be a feature of all. I may be missing relevant information, but I do not know that New Zealand’s series of referenda on electoral reform was particularly divisive, and it is not at all obvious to me that a referendum on this topic in Canada would cause “deep divisions within Canadian … societ[y], divisions which [would not be] easily healed,” as Democratic Institutions Minister Maryam Monsef has implied. Referenda about issues seen as well-nigh existential, such as Québec’s future within or outside Canada, are divisive because the issues themselves are. Those about relatively pedestrian matters, such as the electoral system, are unlikely to be.
A referendum is thus highly likely to be affected by voter ignorance, and may, depending on the issue, prove dangerously acrimonious. But what about the alternative? As prof. Somin points out in a post asking whether “the Brexit vote prove[s] democracies should not use referenda,”
Elected officials may, on average, know more about policy issues than voters. But they need to cater to an often ignorant electorate in order to get elected in the first place. For that reason, policymaking by elected officials is often influenced by public ignorance no less than referenda are.
He adds that
In [an] election, there are many different issues on the agenda, which makes it hard for rationally ignorant voters to follow more than a small fraction of them. By contrast, a referendum can focus the voters’ attention on a single discrete question, thereby reducing the information burden.
And for divisiveness, it seems to me that a close election between two (or perhaps more) stark alternatives can be as divisive as any referendum, if we control for the importance of the issue. (Few elections are seen as being as vitally important as some ― though not all ― referenda.) The 2000 election in the United States left bitterness and division enough to last for two presidential terms and even beyond; and even the 2011 election in Canada left in its wake plenty of people who were convinced that the end times of Canadian democracy were at hand. Nor do I see a reason to see that ― again allowing for the significance of an issue to the public opinion ― having it debated in Parliament will turn out to be less divisive. As Andrew Coyne notes in a National Post column,
[r]eferendums are not themselves inherently divisive; rather, they are usually called precisely when the public is most sharply divided — so divided that the issue cannot risk being decided by ordinary means. If you think Quebec was divided during the two referendums on separation, try to imagine the mayhem that would erupt were the Parti Québécois to try to rip the province out of the country by a simple vote of the legislature.
In an op-ed in the Globe and Mail, Mel Cappe and Janice Gross Stein cite “the debate on the right to assisted death in Canada [as] an example” of enlightened parliamentarism, concerned at once “with interests of the majority” and “the rights of minorities.” But they conveniently forget to mention the fact that this debate only happened because of, and took place within the bounds defined by, a decision of the Supreme Court. Moreover, assisted death is an issue on which there seems to be, a fairly broad, if vague, consensus (though there is probably less agreement on the details than on general principles). If the debate in question was a relatively dignified one, that likely had a good deal to do with this consensus, and not only with the form it took.
There is another characteristic of parliamentary decision-making worth mentioning here. Not always, but more often than not, parliamentary votes are whipped party-line votes. If the leaders of the parliamentary majority decide that they want their caucus to vote a certain way, they will almost invariably get their way. In such cases, meaningful deliberation before a vote is a parliamentary ideal, but not a parliamentary reality. Thus, on an issue decided by party-line votes, parliamentary decision-making amounts to treating the last election ― in which that issue may well have featured only peripherally if at all ― as a sort of referendum-by-proxy on that issue.
So I don’t think that, as a general matter, referenda can be ruled out as a democratic decision-making procedure, as profs. Cappe and Stein suggest. At the same time, there issues that lend themselves to resolution by referendum much better than others. I am skeptical of arguments to the effect there that “constitutional,” or “very important,” issues, or those decisions on which are irreversible, should never be decided by referendum, not least because these categories are vague and therefore liable to be twisted an abused in public debate. I have argued here that even the contention that issues of rights should not be put to a vote in a referendum is a dubious one. However, Prof. Somin has identified a couple of other factors that are more useful to draw the line.
First, prof. Somin writes that
referenda are often likely to be particularly poor mechanisms for making decisions on issues that involve complex tradeoffs with other priorities. … Legislators are more likely to have the time and expertise needed to study the tradeoffs in at least some detail.
Put another way, a referendum is only appropriate when it should be reasonably clear to at least a modestly diligent voter what each option involves. In a post on his (excellent) Public Law for Everyone blog, Mark Elliott points out that in the Brexit case,
[a] slim majority of those who voted may have expressed a desire to “leave”, but what that means is such an open question as to render the referendum outcome largely meaningless. … [T]hose who voted ‘leave’ … could not have been expressing, and did not express, any clear view about what the UK’s future relationship with the EU should look like precisely because no vision of that relationship was on the table.
The same was arguably true in the 1995 referendum on Québec’s separation. When one ― or more ― of the options on offer in a referendum is too vague, whether because it involves complex tradeoffs or because no one has bothered clarifying it, a referendum is not going to be a good idea. (It is worth noting, by the way, that this problem can affect elections if they are treated as referenda by proxy. As Emmett Macfarlane has been pointing out on Twitter, those who insist that Canadians want electoral reform because a clear majority of them voted for parties that supported it fail to mention that these parties were not very clear on what version of reform they favoured, and did not agree among themselves.) But if all the options are reasonably clear ― as they could be in a referendum on electoral reform, provided that the alternative(s) to the current system were actually specified in advance ― that objection is irrelevant.
Second, prof. Somin points out that
[r]eferenda might also be useful when it comes to issues where there is a serious conflict between the interests of elected officials and those of the general public. Most obviously, the former often can’t be trusted to deal objectively with issues that directly affect their own grip on power: electoral districting, campaign finance, and so forth. In such cases, the superior knowledge of politicians often actually does more harm than good, since they can use it to advance their own interests and the expense of the people.
This warning is relevant to the issue of electoral reform in Canada. Indeed, this should be blindingly obvious, given that every single party in the House of Commons (with the possible exception of the Bloc québécois) is supporting that electoral system which it believes will maximize its political power. Even profs. Gross and Stein concede that parliamentarians will “not always” have the best interests of the majority in mind. When we can tell that they do not, the case for a referendum becomes much stronger.
In my post on whether minority rights can be put to a referendum vote, I wrote that I was happy to live in a representative, not a direct, democracy. Many public decisions do involve such tradeoffs and uncertainty that resolving them by referendum is likely to be a bad idea. But that is not always true. In particular, it is not true of electoral reform. And sometimes, we can tell that our elected representatives are trying to help themselves at our expense. Again, that is true of electoral reform. When both of these factors are present at the same time, a referendum sounds like a very good idea. Let’s vote.
2 thoughts on “Yes Or No?”
Politicians can still game the system even where it does go to a referendum. The first BC referendum on electoral reform started with a citizens assembly that reviewed several electoral systems before coming up with STV has the alternative to FPTP on a referendum question. Where the gaming came in wasn’t even the 60% requirement to change the system (which I can appreciate, since such a significant change should require a significant level of buy-in from the electorate), but rather when the actual campaign began.
The two major parties; the BC Liberals and the BC NDP, officially remained neutral, however the chief campaigners against FPTP were all closely affiliated with the two parties, to the point where it was not hard to see that what they were saying was largely being telegraphed to them by the parties themselves. In the end, the first referendum came tantalizingly close to changing the system (nearly 58%), but not enough to meet the high requirement. The second referendum, held two years later, saw the pro-FPTP side win by a significant 60%.
But still, it left a bad taste in a lot of peoples’ mouths that the parties had still found ways to work the 2005 referendum to their preferred outcome, with arguments that often invoked “It’s really hard to tell who won”, when in reality anyone with about a grade 10 leve of mathematics could sort it out. It was an impressive moment of bipartisanship in a Province known for acrimony between the right and left, but it was hardly a healthy kind of bipartisanship, more of a circling of the political wagons to protect the status quo.
I get much the same sense from the EU referendum in Britain a couple of weeks ago, that a lot of voters bought into a pretty vapid and nebulous series of arguments by the Leave side which, in the aftermath of the vote, in many cases turned out to be a lot of hot air. Now one can certainly criticize an electorate that in many cases simply didn’t think about the decision, and it is likely that most voters simply had no way of appreciating the significance of what Brexit actually meant.
In reality, what the 1995 Quebec sovereignty referendum, the 2005 and 2009 BC electoral reform referendums, and the British EU referendum reveal is that all referenda are fundamentally political. The politics of referenda are certainly very different from normal elections, which creates entirely unique alliances, but that doesn’t change the fact that like all political campaigns, appeals to emotion will be competing with appeals to reason, and being humans, we are often quite vulnerable to the former.
I wouldn’t equate appeals to emotion or other dubious arguments and “gaming” the referendum. The parties should be free to campaign in a referendum, and while regrettable, the use of bad arguments is unavoidable in any campaign, whether for a referendum or an election, or indeed in a non-campaigning debate ― there is no shortage of them floating around as it is. The fact that both main parties in BC opposed reform is, I suspect (though I don’t know BC politics well), due to the fact that they stood to lose out in case of reform. I take it that neither of the main parties in NZ was keen on electoral reform there either. But that just speaks to the conflict of interest between them and the electorate, and it seems to me that even if imperfect, a referendum might still be a better way than an election to sort it out.