UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

Lea Raible and Leah Trueblood: The Swiss System of Referendums and the Impossibility of Direct Democracy

The referendums in the United Kingdom of 2011, 2014, and 2016 have sparked a debate about the merits of direct democracy. In this debate references to the system of referendums in Switzerland take one of two forms: either as (i) a sui generis case of no relevance or (ii) a demonstration of the virtues of referendums and direct democracy simpliciter. The aim of this post is to challenge both of these approaches. We argue instead that the Swiss system demonstrates that it is necessary for referendums to be integrated into representative processes in order for their use to be consonant with other democratic values. The differences between liberal democracy in the UK and Switzerland are of degree rather than kind, and the Swiss experience helps to answer the questions of how, when, and why referendums may be justifiably used in liberal democracies, including the UK.

  1. The Swiss System of Referendums

In Switzerland there are different kinds of referendums for different purposes at the Cantonal (State) and Federal levels of government. The Federal Constitution of the Swiss Confederation provides for two kinds of referendums: (i) mandatory referendums for, among other purposes, changes to the constitution (art. 140), and (ii) optional referendums (art. 141), which have to be requested by voters or Cantons, for federal acts. Take mandatory referendums. Art. 140(1) states that “amendments to the constitution” and “accession to organisations for collective security or to supranational communities” must be put to a popular vote. In other words, there is no governmental or parliamentary discretion as to whether any amendment to the Swiss Constitution or, indeed, constitutionally momentous questions of foreign policy should be subject to a referendum. The representative branches of government alone cannot decide such questions: any answer must be approved in a referendum or it is legally void.

There are two ways an amendment of the Swiss Constitution can be brought about. It can either be proposed by the Federal Assembly (the legislative) or through the process of a popular initiative, that is, on request of 100 000 citizens (for details see art. 138 regarding total revisions and 139 on partial revisions). Regardless of the avenue, however, any revision of the Swiss Constitution is subject to a mandatory referendum.

If only these aspects of the Swiss system of referendums were considered, one could not be blamed for drawing the conclusions that Switzerland is (i) a direct democracy and (ii) a flourishing one at that. In order to appreciate the role of referendums in Switzerland a closer look is warranted.

  1. Dispelling Misconceptions About the Swiss System of Referendums

Exploring the interaction between voters and the representative branches of government is helpful. It is necessary to take into account that the influence of the representative branches of government is considerably more pervasive than is acknowledged. Consider how the Federal Assembly may respond to popular initiatives for instance; the relationship is an iterative one.

The Federal Assembly may submit a counter-proposal to popular initiatives, that is, partial revisions of the constitution requested by the citizenry (art. 139(5)). Whenever such initiatives take the form of a specific draft of a provision (as opposed to a general proposal) the Federal Assembly may decide to take up some or all of the concerns expressed by the initiative to form the basis of its own draft. The electorate then vote on the initiative and the counter-proposal at the same time (art. 139b(1)). In addition to the two questions about the two different proposals, the ballot also contains a third question where the electorate are asked to indicate a preference in case both drafts are accepted (art. 139b(2)).

The value of this example is that it demonstrates that there is nothing particularly direct about democracy in Switzerland. Of course, there are more referendums in Switzerland than in, for example, the UK. But it is not the volume of referendums that makes the system distinctive, and it should not be understood to make it direct. It might be countered that whether or not democracy is direct (i) depends how direct democracy is defined (ii) makes no difference anyways. While the former counterargument is correct, the latter is not.

  1. Liberal and Populist Approaches to Democracy and Voting

Underlying different approaches to referendums are different approaches to democracy. The misunderstanding about Swiss referendums is really a misunderstanding about Swiss democracy. Swiss democracy is often misrepresented as an instance of direct democracy. The idea behind a direct democracy is that it is an unmediated exercise. Voters make decisions instead of their representatives. The reason that Switzerland is wrongly thought to be a direct democracy hinges on the nature of voting. To outsiders voting may seem like the crux of the process. Properly understood, however, it is but the tip of the iceberg. Voters do not make decisions directly in Switzerland; they provide additional direction to their representatives.

There are many different views about what makes voting politically significant, but the two broadest traditions are liberal and populist. In the populist Rousseauian tradition, voting is the collective will of the people. There are many problems with this approach that are raised by, among others, social choice theorists, but for our purposes the mechanics of the Swiss system suggest that the populist view is not the best way to understand voting.

The Swiss system of proposals and counterproposals suggests not that voting is a pure expression of will, but rather that it is a relative question of preference given a finite number of options. Voters do not have endless choices to select from; they have a few options to weigh the merits of. They sign off on, or approve, various proposals. Crucially, it is rare that a voter endorses all elements of every proposal. They make a judgment about whether on balance they can support the content, or this particular proposal better than a series of alternatives. Even if voters raise a proposition as an initiative, that question is still debated by the Federal Assembly and may be shaped and offered to the public as a few plausible options – as is the case when the Assembly submits a counter-proposal. On the liberal or Madisonian view, voting is a way to hold representatives accountable. The liberal approach to voting provides better guidance for what voting can accomplish in referendums, even in Switzerland.

Voting has great meaning in giving guidance to representatives, and it can accomplish this without being an immutable expression of will. One need not accept Schumpeter’s view that democracy is only about replacing representatives in order to adopt the liberal approach to voting. The liberal approach to voting is sometimes called elitist. This is a mistake: the view does not argue that voters’ competence is limited, but rather that the device of voting itself has strict limitations. Voters can deliberate about questions, but the act of voting itself is not a collective instantiation of this deliberation. Once the nature of voting is clearer, it becomes clearer too what referendums can and cannot achieve. It is clear that they can achieve much, providing direction to representatives in certain cases, but they are not instances of direct democracy.

  1. The Impossibility of Direct Democracy and Why it Matters

Why does the impossibility of direct democracy in general, and Switzerland in particular, matter for the use of referendums in other liberal democracies? Two reasons will be briefly flagged here.

     (i) The Dangers of Majoritarianism

When voting is properly understood as the tip of the democratic iceberg, it becomes clear that votes alone are not ways to address disagreement. Lestas’s recent post on this blog makes this case powerfully: this is simple majoritarianism. To be clear, majoritarian outrages are also part of the Swiss system when it is at its worst. This is particularly striking when it comes to the democratic value of minority protection: think only of the minaret ban (art. 72(3) of the Swiss Constitution), which originated in a popular initiative and was approved in a referendum in 2009. This is not to say that referendums are necessarily a danger to minorities. It does mean, however, that if they are to form part of a liberal democracy, a high degree of nuance to prevent the worst outcomes of majoritarianism is required. It also suggests that despite its careful institutional design the Swiss system may not be nuanced enough.

     (ii)  The Necessity of Constitutional Conventions

The Swiss system relies on a written constitution to provide the framework for the integration of referendums and representative processes. And as Stephen Tierney has pointed out, ‘fighting over the rules’ should be avoided in any referendum. However, this does not mean that a liberal democracy must necessarily have as clear a framework in order for referendums to be integrated with representative processes. Constitutional conventions, consultative processes, and citizens’ assemblies can perform this same function. These processes are not the icing on the cake of a referendum process. Some version of these exercises is necessary in order for the use of referendums to be consonant with democratic values.

  1. Implications for the United Kingdom

Understanding referendums as exercises in representative rather than direct democracy is helpful for understanding how, when, and why referendums should be used in liberal democracies such as the UK. When referendums are not defined as devices of direct democracy the voting plays a different role in the process. Consider only two examples.

If, as argued here, the most that the act of voting can do is provide additional direction to representatives, then in order for voters to provide direction to representatives on the merits and substance of the question they are voting on, there must be other opportunities beyond voting for them to do so. When voters cast ballots in referendums, their choice is one step removed from the content of the question itself. This is why exercises such as constitutional conventions, assemblies, and consultative processes are a necessary prerequisite to a successful referendum vote. Given the limits of voting, and the absence of a clear institutional framework as exists in Switzerland, it is essential that voters have the opportunity to engage at the agenda setting stage as well as the voting stage of a referendum process.

If the aim of a referendum is to give guidance to representatives, it is essential that it is clear what that direction is. This is why, again in the absence of the sorts of frameworks and processes that exist in Switzerland, documents such as the white paper Scotland’s Future: Your Guide to an Independent Scotland are necessary for both representatives and for voters. Ideally, and unlike the Scottish whitepaper, such documents are the results of the sorts of public engagement considered above. Of course such proposals and processes cannot be perfectly comprehensive, but what they can do is help to clarify the content of referendum questions and consequently the direction given to representatives.

Conclusion

This piece has argued that Swiss democracy is not a sui generis case. Nor does it provide arguments simpliciter in support of direct democracy. The key insight it offers is that the use referendums must be integrated with representative processes in order to be consonant with other liberal democratic values. In order to understand how, when, and why referendums should be used, it is necessary to understand them as devices of representative rather than direct democracy.

We would like to thank Stephen Tierney for helpful comments on an earlier draft of this post.

Lea Raible is a PhD Student in Law at University College London.

Leah Trueblood is a DPhil Student in Law at the University of Oxford.

(Suggested citation: L. Raible and L. Trueblood, ‘The Swiss System of Referendums and the Impossibility of Direct Democracy’, U.K. Const. L. Blog (4th Apr 2017) (available at https://ukconstitutionallaw.org/))

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