Referendums aren’t for the faint hearted

ireland-gay-marriage

The marriage referendum was an emotional roller-coaster. The reports of thousands taking boats and flights home to vote in the marriage referendum were heart-lifting. Ursula Halligan’s revelation in the last week of the marriage referendum campaign that she had hidden her sexuality from everyone, including at times herself was heart-breaking. She cited the referendum campaign as the reason she finally found the bravery to come out. We can only assume that she was relieved at the response and delighted at the result of the referendum. The referendum gave popular approval to a group that had felt isolated and afraid. Few who witnessed it will forget the happy, open and emotional atmosphere in Ireland on the weekend of the result.

But there’s a reason why Ireland is the first country in the world to approve same-sex marriage by popular vote. Not many countries want to have to go to the people every time they want to change their laws, even constitutional law. As well as being expensive and slow it may cause more harm than good.

The referendum last month has probably settled the issue of same-sex marriage. But that’s because it confirmed a measure that was on the path society was moving. There was no such settlement in the UK which a couple of years ago rejected a change to its electoral laws. More and more, from UKIP to the Greens, are calling to revisit that decision.

And it certainly hasn’t settled the issue of Scottish independence. It will be brought up again. In fact the referendum has accentuated divisions within Scottish society. In the marriage referendum one Irish Times columnist proclaimed to be ‘heartsick at what we have witnessed in these past weeks.’ Rather than unite the country it has exposed and deepened a division. This isn’t surprising. This is what happens in referendums. This is because, as Paul Romer observes in a recent issue of American Economic Review:

‘Politics does not yield to a broadly shared consensus. It has to yield to a decision, whether or not a consensus prevails. As a result, political institutions create incentives for participants to exaggerate disagreements between factions. Words that are evocative and ambiguous better serve the factional interest than words that are analytical and precise’

Romer was talking about politics generally, but the referendum process is more even more guilty than representative democracy of incentivising division. Because referendums offer only an either or; they create binaries whereas issues are on a continuum. Instead of a Seanad referendum on its retention or abolition we could have had a debate on the nature of a second chamber we might want.

There is a lot of shouting in parliament the main purpose of which is signaling to voters that the politicians care about an issue, but behind the scenes, in committees and, yes, in the Dáil bar politicians talk and share experiences (sometimes even evidence) and they work together usually in a slow and sloppy way to make things better.

Productive collaboration is completely ditched in electoral campaigns, as politicians accentuate the differences between them and the other lot. That’s fine in the marketplace for competent politicians; you want to see how politicians perform under pressure.

Going to extremes

In referendums finding the best policy is important, but extreme positions are taken in an attempt to win. I experienced it directly when I was involved in the Seanad referendum campaign, on the side in favour of abolition. In response to what we thought was fanciful fear-mongering about democracy in danger, we exaggerated our rhetoric, to talk of the Seanad as a danger to democracy. In fact neither contention was true. The referendum was pointless, and neither outcome was going to change anything very much. I started out with that position, but campaigning moved me towards an extreme.

In moving to the extremes we divide the country, and in having a referendum on marriage equality we missed an opportunity to talk to each other about the problems gay people have, well beyond the issue of marriage, and listen to the – we have to assume – genuine concerns of those opposed to marriage equality.

The most righteous proponents on either side saw the morality of their position but made no attempt to speak to or hear the other side. As the social psychologist Jonathan Haidt points out,

‘[Morality] binds us into ideological teams that fight each other as though the fate of the world depended on our side winning each battle. It blinds us to the fact that each team is composed of good people who have something important to say’

The No side didn’t want to say that it thinks homosexuality immoral, so it muddied waters with children and surrogacy. This appeals to those who are uncomfortable about the speed and direction Ireland is moving. The Yes side was honest in its frame about equality and fairness. This pushes buttons for liberals, but does nothing to convince for conservatives. The Yes side seemed to be saying ‘This is the Ireland, your one is dead’ and didn’t care about bringing people along with it. Instead conservatives could have been persuaded by emphasizing frames such as respect, or biblical references such as ‘Do unto others…’.

Battle lines had been drawn when the campaign started with a call for a ‘homophobia watchdog’; we were never going to come to a genuine understanding of the other side. It was one where genuine doubters were called names and increasingly illiberal stances were assumed by many of either persuasion. We didn’t learn much, except to hate the other side.

The media is also to blame. It stopwatches the different sides, and picks the most extreme proponents of each view. This is the John Waters-effect. We like to hear strong opinions not rational ones. Some lawyers took a sceptical view of the children’s rights referendum. They wondered aloud whether it was needed at all because all these rights were already implied in judgements. But they weren’t clearly on one side or the other so instead of hearing these views, which may have sparked a genuine debate, we heard barely articulate nonsense from people who seemed to think that the state was preparing to round up our children.

The emotion is the message

The other problem is that we tend to be more moved by emotional rhetoric than analytical argument. Halligan’s intervention, as with most of the interventions of the gay community and their families recounting their fears were highly emotive and very effective. We know from opinion research that emotional appeals are far more effective for campaigning than cognitive ones. But is that a good way to make policy? In the marriage referendum there was a race to see who could pull at our heartstrings most. Children were paraded out, but it hardly helped us make a rational, informed decision. We might have agreed with the emotions that got this referendum passed, but emotion is also responsible for bigotry and prejudice of populist nationalists in Europe.

Because humans are easy targets for emotional blackmail, campaigners in referendum try to frame the referendum to suit them. And it is easier for us to default to emotional decision-making when the issues are complex. The Lisbon Treaty was a long bit of nonsense that no one in their right mind could have read, not to mind fully understood. But our constitutional law expects us to be competent to judge whether we sign up to it. Of course we aren’t competent, and nor should we be. Instead either side creates a caricature; where the nightmare of abortion and conscription are pitted against the nirvana of jobs and growth.

The Lisbon Treaty might be exceptional. Most research shows we can learn a lot during a referendum campaign. But why do we choose some issues as important to inform ourselves on and not others. Surely a more pressing issue in the last eight years was whether we assumed the debts of private banks. This bigger decision was made by cabinet with the approval of the Oireachtas. We didn’t really get a say.

It would have been too difficult to put such an issue to the people – it’s not one thing or the other – and surely no one would like to deal with a country that had such a cumbersome decision making process. Let’s assume we could do it quickly and we understood what was at stake, we still often just use the referendum as a plebiscite on the government. The Seanad referendum was most likely lost because the government was unpopular.

A Swiss solution to an Irish problem?

Part of the problem might be to do with the way we do referendums in Ireland. We could certainly do them better. Referendums give a great deal of power to the agenda setter – the one who sets the question – in Ireland’s case the government. A government that wants to have a measure defeated can make an extreme proposal, or a cautious government afraid of defeat will make only the most modest reforms. It can propose changes no one demanded, such as to lower the age of eligibility for the presidency, and veto issues many want to put to the people.

The referendum is meant to change the relationship between the ruler and the ruled. It is supposed to act as a means to override governmental power. In true direct democracy, such as exists in Switzerland, no political authority controls the process. Where the people have the power to force a vote on specific political decisions (or the lack of them) politicians are under greater pressure to explain the rationale for measures in a way that engages citizens. It puts more responsibility on citizens to make informed opinions, and we can see those states in the US with direct democracy and initiatives, that sensible policies often emerge. It was through the right to initiative that the failed war on drugs was challenged in Colorado.

Some romanticise Swiss democracy but do people really want to have to think about issues all the time? They’d probably prefer to just get on with their lives. A typical Swiss citizen could have six elections and thirty referendums to deal with in a year. It has almost replaced representative democracy. We can’t be surprised to learn that Switzerland has the lowest turnout among European countries. And when there is low turnout we get a distorted view of what the people want. The people who vote will have more skin in the game and probably hold extreme views. It can easily become captured by organised interests, though the evidence from the US suggests that the role of moneyed interests in initiatives isn’t as great as we might think.

Bring politics back in

There is another reason we might be skeptical of referendums. It tries to take political decisions out of politics. Some argue that rights are universal and immutable and should never be the subject of a majority vote.  But rights are, and should be, the result of political struggles. One era’s luxuries are another’s fundamental rights. A recent book by Seán McGraw about the Irish party system argues that parties have used the referendum procedure to deflect issues from political debate, absolves the political class of giving leadership. It’s clear that a majority is in favour of allowing abortion where there are fatal foetal abnormalities, and probably in other circumstances.

The referendum is a conservative mechanism. It took the Swiss much longer to allow women to vote because it was put to referendum. Because change is difficult to achieve, fear of error means we are less likely to take risks. Referendums are biased in favour of status quo because, as we’ve seen, it is easy to create doubt in the minds of risk-averse voters. If we make a mistake with legislation, we can just try something else out.

But look at the mess been left us by the 8th Amendment. This has taken politics out of a political issue, and it has been left to the Courts to interpret the constitution in a way that remains reasonably faithful to the voters in 1983 but doesn’t bring the constitution and the Court into disrepute. Contrast the tone and debate in the subsequent referendums on abortion with that in the Oireachtas Committee on Health and Children. This didn’t bring about the meaningful change many of us would have wanted, but it was surely a better model than a divisive referendum. Unencumbered by the 8th amendment the Oireachtas could make small changes.

And small changes aren’t a bad thing. Parliamentary democracy can deliver the small steps that reflect the incremental steps societies tend to make. They can facilitate compromise and nuance that the clunky referendum procedure doesn’t allow. Referendums may suit some issues, and they provide an opportunity to have a national conversation on issues such as our treatment of the LGBT community.  Direct democracy may have tasted great on May 23rd, but it’s prone to error, one of which in 1983, has left many thousands of Irish women despairing on boats and planes to England. Only a referendum can fix that.

A version of this was originally published in the June issue of Village magazine

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9 thoughts on “Referendums aren’t for the faint hearted

  1. I would disagree somewhat with your analysis of the recent marriage equality referendum. Yes, referendums on the whole are crude and try to turn complex issues into lazy and misleading black and white soundbites. However, much to my surprise, this referendum did achieve a striking degree of understanding. I have found the degree of understanding of LGBT people’s concerns has rocketed since the referendum, as has the degree of social acceptance. I see it in the number of LGBT people who now feel free to show affection in public for their partners. I see it in the dramatic degree of acceptance now in evidence among ordinary people. In an amazing way, the referendum allowed LGBT people to be seen as ordinary fellow citizens by many who before then didn’t have much empathy for LGBT people. I think in the context of this referendum your sentence “We didn’t learn much, except to hate the other side” could not be more wrong. In a way I don’t remember another referendum doing, I feel this referendum has genuinely produced a paradigm shift in attitudes that will have long-term benefits for the positions of LGBT people in society. LGBT people were often seen by ordinary people as ‘them’ – people they did not understand. The attitude of a surprising number of people now perceives LGBT people as ‘us’, as equal parts of Ireland. I had not expected such a paradigm shift to occur because of the referendum. But it has.

    • I agree somewhat that the referendum probably put an issue on the national consciousness that was important beyond the right to marry, and so may have served a purpose (as I acknowledge in the final paragraph). But it’s a crude, expensive and indirect effect of the referendum, which is about making a decision. There may have been better ways to raise consciousness about LGBT rights. I don’t think after the referendum campaign that conservative Catholics and the gay community are any closer to understanding each other’s concerns.

  2. Hmm… Here we are, Ireland 2015 and we just witnessed phenomenal number of Irish citizens participate in true democracy rather than the usual nonsense of once every 4-5 years. A couple of weeks later, Ireland learns of more corruption at the heart of Irish politics all stemming from a broken and corrupt political system that ensures politicians represent themselves, the party, the businessman or a combination of all three. Ireland 2015 and we continue to churn out career politicians and governments that are elected to do something yet always do the opposite. The current government with a mandate to carry out two specific tasks and yet did neither and to make matters worse, we’ve get to read this garbage from so-called experts who are apparently so entrenched in the political system, they can’t see the mess going on around them. To make matters worse, the author doesn’t offer solutions in fact, he turns his nose up at a country such as Switzerland the citizens enjoy a standard of living nothing like the greatest little corrupt country called Ireland. Its a shame the author forgot to mention that Switzerland’s citizens enjoy the highest minimum wage in the world – a decision voted by the Swiss people who get to participate in such decisions. Whereas, here in Ireland, Ministers tell us ‘its ok to tell lies come election time’.
    I wish so called educated people would look beyond their own circumstances and potentially their political allegiances and think of the greater good. Politics in Ireland is not working. Nothing is going to change. Why would it change as all politicians hop onto the gravy train when elected and all the institutions around them. Accountability is the only answer and the only way to bring about accountability is through giving the people / citizens greater powers. Theres no reason why people-initiated referendums should not be introduced to complement the current representative democracy. This would allow citizens to veto stupid government decisions that go against the will of the people and it would also allow citizens to trigger referendums on national issues. In regards to the mechanism, why not allow the people to participate in true democracy twice per to decide national issues such as, lets see: TD’s salaries, TD’s pensions, the bondholder debt or water charges to name a few. When we consider the vast sums of debt on the shoulders of Irish citizens and lives ruined as a result, there is no other way. Any so called expert who thinks referendums don’t support / facilitate democracy, I’ll be frank, is dangerous to society. Unfortunately, they are part of the problem rather than the solution. Such people would probably think General Elections should take place every ten years.

  3. There are pros and cons to both representative and direct democracy. I think you’re being overly rosy-eyed regarding Irish parliamentary democracy and too negative w.r.t. direct democracy.

    The robust adversarial approach has its upsides. It’s, after all, how we conduct criminal cases: a jury of citizens gets to decide on someone’s liberty. Prosecution and defense teams use every trick in the book. However, we depend on the ordinary members of the jury to shift through the hyperbole and use their common sense to arrive at a final hopefully fair decision.

    IMO the Irish public has, by and large, made sensible decisions in Irish referendums. Pro and anti campaigns do tend to get polarized and ill-tempered. But ordinary people are well able to sift the arguments and discard the more spurious ones. Also court decisions like Coughlan and McKenna function as important safeguards to ensure both sides of any argument get an adequate hearing (like in court cases). The government could fund/allow the referendum commission to enumerate arguments on both sides (they used to). That could inject some nuance in debates and would allow some of the most spurious arguments to be screened out. However, in the absence of such willingness (or perhaps even good faith) there’s a lot to be said for suboptimal but easily-arbitrated rules such as the use of stopwatches. In the marriage referendum campaign, both sides did get a fair hearing. The people got to hear all the main arguments for and against. Some points could validly be made against the proposal. Not all all the herrings were totally red! 🙂 IMO in totality the case against was a fairly weak and laboured one. But at least the various arguments got to be heard.

    Irish parliamentary deliberation can’t always be relied on. The original ambiguously worded Irish language marref amendment had embarrassingly to be changed mid-campaign (not spotted by our parliamentarians but by journalists). The Oireachtas inquiries referendum for the most part failed because of a dubiously-worded amendment, which was not properly debated as it was rushed through the Dáil. And how many of our TDs really understood the finer details of the EU treaties we voted on? These days the populace is as well educated as its representatives.

    We get to have referendums in Ireland anyway only in a fairly limited set of categories: EU treaties, relatively uncontroversial technical amendments (adoption, bail etc.), political structures (Seanad, electoral system), rights (divorce etc). On the limited types of issues we have referendums on, why not let the people hear the experts and decide themselves rather than, in effect, a handful of party leaders in consultation with civil servants? Referendums are as good a method as any for amending constitutions. If you don’t like referendums, what other method would you prefer?

    Leaving things mainly to courts can have its own downsides, e.g. the highly politicized US supreme court interpreting a fairly fixed constitution (with constant counts being kept of liberal versus conservative judges). Or Germany whose constitutional court has banned all domestic surrogacy (and prior to unification banned all abortion based on the so-called “eternity clauses”). Maybe this will be revisited in 20 years (like the moderate loosening of abortion restrictions on unification). There’s nothing politicians can do in the interim. Parliamentary sovereignty in the UK has led to some fairly draconian anti-terrorist legislation. If we had the Scandinavian system of amending via parliamentary votes separated by general elections, Fianna Fáil would probably have successfully jettisoned PR-STV for single-seat constituencies sometime back in the 1960s or before. Amending by supermajority doesn’t always work out well either, e.g. 1930s Germany or currently in Hungary.

    Should marriage be in the constitution at all? There are valid arguments for and against. On balance I’d tend to think it should. Our divorce legislation is another example of a suboptimal hard but easily arbitrated rule, an imperfect compromise for an imperfect world. Marriage does promote stability in child rearing. It probably shouldn’t be that easy to dissolve it (not much point to it otherwise). But it can’t be too hard either (or no one would get married!). Our system of no-fault divorce (must be living apart for 4 out of 5 previous years) is a reasonable compromise. Should this all be left to the legislature instead? Maybe. Legislative goalposts of this type do tend to shift over time though (not always for the best). On balance, I feel it’s best to be codified in the constitution.

    Abortion is always inevitably going to be a controversial topic. Any abortion rule is always going to be suboptimal (serious and unpleasant downsides no matter where one draws the line). Hard to arbitrate too. So maybe just leave it to the legislature to decide? (i.e. “repeal the 8th?”). IMO the best compromise would be to permit all abortion in the first trimester and be very restrictive afterwards (rather like Germany’s current court-imposed policy). I’d feel abortion even in the first trimester is unethical in most ordinary circumstances (becomes increasingly so the further along the pregnancy has gone). However, there is no easy way of arbitrating for rape or similar issues (girls pregnant at a dangerously young age etc.). A general exception for rape could be expanded over time. I’d support an amendment giving the Dáil full discretion on abortion for the first trimester. That would cover most such issues. I’d oppose a blanket repeal of the 8th amendment because of slippery slope arguments. There are downsides to my view. Most fetal abnormalities aren’t detectable until the the second trimester. But even under the current constitution it’s possible abortion could be carried out for fatal fetal abnormalities like severe anencephaly. Without clear constitutional guidelines, IMO this line would shift over time (to general fetal abnormalities rather than just fatal ones). For the most part that would be Down syndrome and neural tube defects like spinal bifida (then again do we really want second or third trimester abortion in such cases?).
    The German legal fudge on this is, I’d feel, about the least worst possible option (legal protection for the life of the unborn foetus but allowing the parliament discretion to legislate for abortion in the first trimester).

    • I may sound a little rosy re. Irish parliamentary practice, but I don’t mean to. It is not ideal, and itself needs significant reform. I think I agree with you, if you are saying that too much stuff is in the constitution that simply shouldn’t be there, but that the referendum procedure is a good one if used infrequently to change the basic rules of the political game. At the moment we have too much of what is for politics to decide in the constitution, which in effect removes in from the political domain and hands it to the judicial one.

      • Thanks for the reply.
        “I think I agree with you, if you are saying that too much stuff is in the constitution that simply shouldn’t be there”
        Bunreacht na hÉireann deals almost exclusively with the usual topics dealt with by constitutions: fundamental rights, sovereignty and democratic structures. I’d be happy enough with how we amend it with regards to rights and sovereignty. Our politicians show themselves capable of gradual movement on rights, and there’s no reluctance to hold referendums on matters of sovereignty like EU treaties. On changing “the basic rules of the political game”, the setup is far from satisfactory. The recommendations of the constitutional convention were all well and good. Political reform options were developed and discussed, which can’t be a bad thing. But, in reality, there’s almost no realistic prospect of even the more moderate proposals ever coming to fruition. And this was in the context of a severe economic crisis with a lot of public desire for some kind of reform. Despite this, almost no meaningful reform has taken place. Something similar happened in Iceland. A revamped constitution, successfully put to public vote, which was proposed by a different type of constitutional convention, ultimately went nowhere. There’s the perennial problem of the incumbents, which benefit from a system, naturally being very resistant to changing that same system. That’s why I’d feel that citizen initiative mechanisms to allow changes to basic political structures are essential. One could insulate issues of rights and sovereignty and the basic democratic nature of the state from such a mechanism (perhaps organize into separate immunized sections like the German “eternity clauses” with the same amendment procedures for these as we have currently). And it would be easy calibrate such a mechanism to have citizen initiated referendums as rarely or as frequently as one wished.

        On the far more frequent of Swiss use of referendums, voting four times a year in national referendums, well, Switzerland is hardly paradise on earth! 🙂 But it’s certainly a very interesting experiment. Maybe referendums can be a divisive mechanism, but paradoxically have led to consensus politics in Switzerland. Direct democracy has also halted the otherwise usually inevitable seeping away of political power to the centre in its federation. Only for the rather unique historical circumstances (centring on a need to resolve deep religious and linguistic internal divisions) that led to the development of this form of democracy there, IMO it’s unlikely we would ever have had citizen initiative mechanisms in any other country. Some idealists today might then point to Ancient Athens, but political scientists would probably shake their heads and say you’d be mad to try that in a modern society. I guess it’s surprising how not a disaster the Swiss experiment has been.

        In general, I also doubt that parliamentary representative systems will be the final historical word on democratic structures. This is the age of the internet and social media and no longer the 19th century with a poorly educated population and poor communication and transport systems. There’s far more scope for democracy to become more direct, and not leave everything to a privileged political class. I suspect and hope that very gradually over time (since such systems are self-perpetuating and very resistant to change), democratic systems will move more in an Ancient Athenian direction, with more citizen involvement (maybe through citizen initiatives, perhaps through sortition, or even some other mechanism we haven’t thought of yet).

  4. “There is another reason we might be skeptical of referendums. It tries to take political decisions out of politics.”
    Oh yea?
    You seem to suggest that people should not be directly involved in decision-making. Why not?
    We the citizens of this Republic are the source of all power in this state, as is clear from Article 6.1 of our Constitution. Note that Article 6.1 also states that ….”the people…right to designate the rulers of the State and, in final appeal, to decide all questioons of natrional policy, according to the requirements of the common good”
    I suggest that referendums are an essential part of politics. Are those who are sceptical of referendums also sceptical of democracy, based on people being the source the power that enables politics to have legitimacy?

    “The referendum is a conservative mechanism. It took the Swiss much longer to allow women to vote because it was put to referendum.”
    With this statements, do you suggest that our political and governmental classes are not conservative?.

    In 1912, the male electorate of the US state of Oregon voted, in a referendum to give women the vote (http://bluebook.state.or.us/state/elections/elections06b.htm) some years before the (restricted) enfranchisement of women in these islands.

    For a completely different perspective on the importance of referendums as a means of promoting understanding (which Finbar Lehane touches on above), I refer you to a ~23 minute presentation (in English) which Dr. A. Gross (Swiss MP, leader of the Social-Democratic group in the Legislative Assembly of the Council of Europe) made during a hearing of the European Parliament Constitutional Affairs Committee (AFCO) in September 2012,
    http://www.2nd-republic.ie/site/our-campaigns/citizen-initiated-referendums.

    This presentation was given during day long hearings on “Method for direct participation of citizens in EU Member States – model for a more democratic Europe AFCO/7/10121” which are available here
    The complete hearings are available here
    Morning session (09.12 – 12.35) http://www.europarl.europa.eu/ep-live/en/committees/video?event=20120918-0900-COMMITTEE-AFCO
    Afternoon session (14.03 – 17.01) http://www.europarl.europa.eu/ep-live/en/committees/video?event=20120918-1400-COMMITTEE-AFCO

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