Illiberal Direct Democracy

2.1 Limiting the Subject Matter

Many countries exclude certain subject matters form the scope of popular initiatives. With a little simplification we can distinguish three types of such limitations.

The first type has to do with jurisdiction: It excludes all subject matters the respective political entity is not competent to legislate on.^[15] An initiative is a legislative proposal. In federal systems and in the EU, legislative powers are divided between the respective levels of sub-state entities, the state and the EU. From a legal perspective it does not make sense to deal with a proposal which cannot be realized under the respective constitution, and from a democratic perspective political questions should not be decided by the ‘wrong’ people, thus excluding others who are equally concerned. From a political perspective, however, using the ‘wrong’ level to build up pressure on the ‘right’ level can be a promising strategy. The mentioned Hungarian referendum on the distribution of refugees in the EU^[16] is a good example, the recent regional referendum on the independence of Catalonia^[17] another one. Therefore, binding initiatives to the distribution of legislative powers stands to reason in a federal entity.

The second type is concerned with the stability and consistency of political decisions. Typically, initiatives are isolated interventions in a political process. They can disturb a political program, and in a certain sense, this is just their purpose. So sometimes one can find rules meant to limit possible disrupting effects. These rules include certain delays before a parliamentary or ballot decision can be reconsidered in a popular initiative.^[18] In many countries the budget cannot be a subject of direct democracy,^[19] and in some instances even decisions with considerable financial effects are excluded^[20] (while elsewhere exactly the financial effect can trigger an obligatory referendum on the respective measure^[21]).

More relevant for us is the third type: restrictions meant to avoid grave mistakes. Above all, these are rules excluding from initiatives constitutional matters,^[22] or, even more specifically for us, fundamental rights^[23] and duties under international law,^[24] but also important political decisions such as the declaration of war and the emergency state^[25] or sensitive fields of policy, eg, defense, citizenship and constitutional justice,^[26] ratification of treaties,^[27] elections^[28], or train tariffs and obligatory military service.^[29],[30]

I did not find an explicit exclusion of minority issues.^[31] In some cases, the exclusion of constitutional amendments, fundamental rights or duties under international law should provide protection, though: Minority rights are entrenched in the freedoms of the constitutions and international human rights instruments, and they include specific prohibitions of discrimination.^[32] The mentioned ban on minarets or the expulsion of criminal aliens without consideration of proportionality is in conflict with the European Convention of Human Rights and the constitutions of most European states. But in many instances protection by these rules is less certain. It may be unclear whether the prohibitions also apply to measures which are not explicitly introduced as amendments to the constitution. Contradictions to fundamental rights or duties under international law are rarely as obvious as they are in the cited examples. And, of course, not all questions concerning minorities touch upon higher echelons of law. So an explicit ban of respective initiatives could be wise: it would apply to any proposal impairing the position of a minority irrespectively of its compliance with constitutional and international law.

Such a ban could be justified even better than most of the existing limitations of scope: Whereas one might take object to the distrust of the people expressed by the other examples, or doubt the consistency of excluding complex thematic decisions while allowing elections, a ban of minority issues can be grounded on the essential unfairness of ‘filterless’ majority decisions on minorities.

2.2 Providing Chances for Deliberation

A different approach to the problem could focus on supplementing filters. A first measure would try to improve the information. Usually, initiators of ballot measures are required to provide just a draft and a reasoning for it,^[33] and all the remaining questions are left open for the political debate. The Brexit referendum teaches us that we should maybe ask for more: for information on the people behind the initiative, its funding^[34] and its advertising, including social media techniques. The democratic quality of the decision may be further improved by independent information on the content and probable effects of the proposed measure; the Swiss ‘voting booklets’^[35] give an example.

Timing is another important factor for deliberation. Democratic voting is not just an opinion poll but the last step in a longer process which is meant to give the people the chance to form opinions. As a rule, the gatherings of the necessary support and registration procedures are slow enough anyway to provide for a cooling-off period after a spectacular event or a scandal.^[36] But also the voting act as such should not be too easy. Thus e-voting rises not only security concerns but needs some reflection on how to maintain the seriousness of the voting act between video streaming and a pizza order.

Creating alternatives might help deliberation, too. Some voting regimes, the Swiss among them again, allow the government and/or parliament to put a counterproposal on the ballot.^[37] This way, the voters escape the strict yes-no-alternative and get an additional option to choose from. As a rule, it will be less radical than the original proposal of the initiative or provide a different framing of the decision. In any event, it will enrich the political debate.

A similar effect can be achieved if a referendum is not the automatic consequence of an initiative with a defined support. In this model, a referendum is only held if the initiators are not satisfied with legislative measures parliament can take as a response to the initiative within a certain delay.^[38] Involving the legislative body makes the initiative less antagonistic to traditional politics. It opens up a room for negotiations and compromise, between the initiators and the legislators as well as between the parliamentary parties themselves, and it lets initiatives benefit from the virtues of parliamentary debate.^[39] The initiative may not be upheld if parliament fulfills at least some of its wishes. If, on the other hand, the initiators insist on a referendum the voters can choose again between two measures to solve a problem after an enhanced debate.

2.3 Mitigating Legal Effects

As we have just seen there is no automatic sequence of initiative and referendum in each system, and neither is there a given relation of initiatives to parliamentary politics. Only the strongest version of the initiative leads to a binding and self-executing popular decision bypassing the legislative body.^[40] Because it allows lawmaking without or against the will of parliament this version most likely needs safeguards, at least a certain voter turnout at the referendum^[41], or is even deemed unconstitutional in some countries.^[42]

There are other models, though. The weakest among them constructs initiatives as mere proposals for parliament to consider.^[43] If we disregard for a moment the possible negative effects of campaigning this model needs no limitations: Parliament can rectify all legal mistakes and mitigate political exaggerations or just reject the initiative and that’s it; that is, until the next elections. As they may be far away, this model is often criticized as dysfunctional.^[44]

Between those extremes we find many different solutions. For our purposes, two elements are of specific interest: Referendums on initiatives may be obligatory yet of a mere consultative nature;^[45] or legally binding for parliament but not self-executing^[46]. A consultative referendum is much more than an initiative alone. Even if an initiative enjoys large support, it does not clarify political majorities. A referendum does so, and therefore exerts more pressure on a legislative body. In many cases, but not always,^[47] a consultative referendum will have the same political impact as a legally binding one.

In extraordinary circumstances a binding referendum may pave the way to a constitutional court which might void insufficient implementation statutes or declare a failure of action. But even if there is a court with jurisdiction on the matter it cannot substitute the implementation. So as a rule, for both the consultative and the binding referendum the ultimate sanction lies in the verdict of the voters at the next elections.

For us, another common feature is more important: In both cases there is a need for implementation and therefore a chance for adaptation and moderation.

2.4 Fine-Tuning Court Control

Any limitations of initiatives cannot be fully understood without regard to court control.^[48] Here we should distinguish two elements: the normal judicial review of statutes and the specific control of initiatives.

Judicial review of parliamentary statutes does not exist everywhere, and there are many variants to it. But whatever type of review there is, legal measures are not per se exempted from it just because they have been enacted by or on the basis of a referendum. So if a constitution provides so for parliamentary acts, acts of direct democracy van be voided or declared unconstitutional, too.^[49] This is important to guarantee constitutional minority rights. It may not suffice, though.

For one, the constitutional standard to which ballot measures are held may be looser than that of parliamentary legislation.^[50] And secondly, the review of the enacted statute could come too late: In principle, it could cover not only the result but all aspects of the act, including eventual prohibitions of subject matters and procedural requirements. However, a court holding that a certain initiative should not have been admitted in the first place can hardly be considered effective if it comes post festum, maybe years after the referendum and the enactment of the respective statute. Moreover, it brings the referendum majority and the court in antagonistic positions; a temptation for demagogues and not a very good idea for maintaining the respect courts need to function.

So if there is no general preventive judicial review in a system, one might think of moving forward parts of the review. Most systems contain a formal admission of the initiative, anyway, if only to check the necessary number of voter signatures. Content limitations and other demands at that stage, such as disclosure and transparency requirements, could be included in the conditions for admission.^[51] In order to avoid an unnecessary juxtaposition of court and initiators, the admission decision could be left in the first instance to an administrative authority or an independent body; courts would decide on remedies, though. This way, illegal initiatives could be stopped rather early. They would neither waste the efforts of all stakeholders in a useless procedure nor receive the democratic blessing and the political weight of a successful referendum.

Two more remarks are necessary here. The described model would only function properly if remedies against the admission decision are available not only to the initiators but also to the opponents of the initiative. And if compliance with constitutional or international law is required for admitting the initiative, courts could only take up obvious infringements at this stage. For one, a full examination takes a while, and a court could not sit on the case for a long time without damaging the initiative by taking the wind out of it. Secondly, judicial review of statutes depends on cases; without them, when a statute is not yet applied, it is hardly possible to foresee all the questions it raises. Therefore the ex-ante review in the admission procedure would only be very rough and preliminary; it should not preempt a full ex-post review generally provided for by the respective constitution.^[52]