Reform The Referendum: Brexit And The Limits Of Direct Democracy

Coauthored by Dawood Ahmed

In Federalist No. 63, James Madison wrote that the defining principle of American democracy, as compared to Athenian democracy, "lies in the total exclusion of the people in their collective capacity." This was a warning against the dangers of direct democracy - referendums, voter initiatives and the like; Madison was against populist usurpation (by the ballot box) of elected representatives' responsibility to make decisions on complex issues, with the benefit of parliamentary debate and the ability to negotiate compromises.

In theory at least, if politicians get it wrong, they can get voted out; in contrast, if an impassioned majority gets it wrong, accountability is unlikely - very much a case of nationalist slogans and "do first and think of consequences later".

And all of this can also be evidenced from the chaotic turmoil evident in the U.K. after the "Brexit" vote on 23rd June that rattled the global economy and caused major political dislocation. Regardless of whether or not the decision may benefit the United Kingdom in the longer term, the political victors, clueless and without a plan are scrambling to imply now that the status quo will not change as they do u-turn upon u-turn on earlier campaign slogans (going back on promises on immigration and funding healthcare) even as resignations flood in and separatist resentment breeds in Scotland, Northern Ireland (and even London); indeed, several voters have expressed regret and confessed that they had not anticipated (or thought about) the costs of their "Leave" vote - for example, communities in Cornwall, despite voting for "Brexit" are now asking the government to guarantee that the funding they received from the EU will continue.

Yet, today, direct democracy in the form of referendums and petitions, despite their drawbacks, seem to be popular: in some nations, such as Italy and Switzerland, the referendum is a regular part of the democratic process. Let's be clear: referendums, despite the romantic allure they kindle amongst young and old, are dangerous - they can impede national unity (especially where the result is won by a small margin), are highly susceptible to frenzied campaigning (as evidenced by the pre-referendum jingoistic xenophobia and post-referendum racism in the U.K.), undermine governmental and legislative conduct of policy and potentially risk harming "liberal democracy".

Indeed, as a tide of far-right nationalism sweeps across much of Europe and where the next President of the Council of the European Union openly declares Islam and migrants are unwelcome in his country, who can guarantee that a far-right group in Europe, say 3 or 5 years down line, will be precluded from proposing a referendum to, for example, ban migration? Indeed, the Swiss have already voted to ban minarets in mosques; how inconceivable is it that these bans could one day extend to persons?

Improbable does not mean impossible and even a failed referendum or petition can ignite dangerous ideas that can lay dormant for a while, only to be awakened at opportune moments - such ideas can tear away at the very fabric of "Western" style liberal democracy.

The point is not that referendums and petitions should be discarded or that representative democracy is not subject to frenzied populism or illiberal tendencies. To the extent that referenda impassion citizens and allow them to make their voice heard without invoking the "tyranny of the majority", they can be very valuable to democratic functions. Surely, at the very least, the "Brexit" referendum may have lent voice to those victims of globalization who felt the establishment had closed ears. But for complex high-stakes political matters, three principles are critical for referendum design.

First, the consequences must be made clear. It would help in this regard to have a technical cost-benefit analysis by neutral technocrats, perhaps from parliamentary staff. At a minimum, a statement of likely consequences would help clarify the issues for voters. Yes, Cornwall, you will lose your subsidies if you vote yes.

Second, referenda should be advisory only. They should, in essence, be national opinion polls but not create binding law. The possibility of making law through referenda invites elected politicians to shirk their responsibility and punt issues to voters, who in turn are susceptible to emotional appeals. The British referendum was advisory, to be sure: but this fact could surely have been emphasized, so that politicians would not feel that they had to follow the advice or face grave consequences.

Third, if referenda are to make law, then on hugely important issues they ought to be conducted twice, with a cooling off period for deliberation and debate in between the two votes. Several Scandinavian countries, for example, require a constitutional amendment to be voted on by two successive parliaments, with an intervening election. A similar design for referenda would ensure that sudden and massive changes do not result from populist outbursts.

Several of the "Leave" leaders including Boris Johnson claimed, as a central plank of their campaign, that "Brexit" was necessary to restore that very British notion of "parliamentary sovereignty". And ironically, perhaps, it will surely be Parliament that will now have to pick up the broken pieces by mitigating the damage caused by populist referendum politics. It will need to do this by coming up with a reasoned, creative solution that prevents balkanization of the country whilst mitigating the economic damage of "Brexit" even as it seeks to give effect to the will of the majority.

Dawood Ahmed holds a JSD degree from the University of Chicago and is a research associate at the Comparative Constitutions Project.