Referendums often give the wrong result

By Eoin O’ Malley

The marriage referendum was a roller-coaster. The reports of thousands of Irish 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 what we had already known: that Ireland and its people are decent and kind. 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 already following. There was no such settlement in the UK when a couple of years ago it rejected a change to its electoral laws. Many, from UKIP to the Greens, are calling to revisit that decision.

And referendum certainly hasn’t settled the issue of Scottish independence. 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 the 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 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 the second chamber we might actually want.

There is a lot of shouting in parliament the main purpose of which is signalling 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.

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 was dishonest. It 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 Ireland, your one is dead’ and didn’t care about bringing people along with it. Instead conservatives could have been persuaded by emphasising respect.

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 are also to blame. They stopwatch the different sides, and pick sometimes-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 judgments. 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 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, was 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 t, 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 the bigotry and prejudice of populist nationalists in Europe and beyond.

Because humans are easy targets for emotional blackmail, campaigners in referendums 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 time-serving nonsense that no one in their right mind could have read, still less 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 decide that some issues are important to acquaint ourselves with and not others”? This magazine has often suggested that property rights determine  so much in this society that they justify popular scrutiny and a vote. Whatever the outcome. An obvious pressing issue in the last eight years was whether we assumed the debts of private banks? This big 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.

No: Yes side failed to engage them in productive collaboration
No: Yes side failed to engage them in productive collaboration

Part of the problem might be to do with the way we do referendums in Ireland. 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. This puts more responsibility on citizens to make informed decisions, and we can see those states in the US with direct democracy and initiatives often derive sensible policies. It was through the “right to try” 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.  Referendums have almost replaced representative democracy there. We can’t be surprised to learn that Switzerland has the lowest election turnout among European countries. And low turnout contrives a distorted view of what the people want. Election voters will have more skin in the game and possibly hold extreme The process 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.

There is another reason we might be sceptical of referendums. They try 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. 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,  to absolve the political class of giving leadership. It’s clear – for example – that a majority is in favour of allowing abortion where there are fatal foetal abnormalities, and probably in other circumstances but law-making has been infamously dilatory.

The referendum is a conservative mechanism. Because change is difficult to achieve, fear of error means we are less likely to take risks. Referendums are biased in favour of the 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 left to 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 those 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 in the right direction.

And small changes aren’t a bad thing. Parliamentary democracy should deliver the small steps that reflect the incremental moves of society. It can facilitate compromise and nuance that the clunky referendum procedure doesn’t allow. Referendums may suit some issues, but I struggle to identify these. 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. Unfortunately only a referendum can fix that. •