Europe’s Fear of the Electorate
On national and Europe-wide referendums – and why Switzerland is a flawed role model.
By Niklaus Nuspliger
The history of relations between Switzerland and the EU can be told as a tale of misunderstandings. After the Swiss voted "no" to accession to the European Economic Area (EEA) in 1992, the EU agreed to sectoral agreements on the assumption that Switzerland would join the Union later. Switzerland calls this relationship to Brussels bilateral, while the EU points out that Switzerland’s cooperation agreements and its participation in the internal market make it a party to a multilateral project – so it should follow the rules accordingly.
Another cause of misunderstandings is the difference in the way they view referendums. In the autumn of 2018, when Alain Berset, the Swiss president at the time, spoke in Brussels about the negotiations on a framework agreement, he stressed that, in a direct democracy, the government cannot simply conclude treaties that are liable to be rejected by the electorate. The EU has little patience with this argument because any country can always claim it is hindered by some domestic policy considerations.
Over the years, moreover, Brussels has grown increasingly sceptical about direct democracy, seeing as member states’ referendums on European policy have rarely turned out favourably for the EU. Former British Prime Minister Margaret Thatcher was anything but an ardent European, and yet her remark that referendums are a "device of dictators and demagogues" would be well received in Brussels today. The Swiss, on the other hand, regard direct democracy as the best, if not the only true, form of democracy, and other European countries as, at best, second-rate democracies. This opinion was borne out, they felt, as they watched various European countries experiment with referendums in recent years as a means of countering the democratic recession.
But such experiments in direct democracy also raise some questions I would like to address in the following. Is it possible to transplant elements of direct democracy in a representative system just like that? Are national referendums suitable tools for use in international relations? Do referendums make a country more democratic per se? And why does the Swiss brand of direct democracy find its most fervent advocates in right-wing nationalist circles?
The Dutch experiment in direct democracyAmsterdam, April 2016. The auditorium at De Balie cultural centre is filled to capacity and feelings are stirred up as the moderator desperately tries to conduct an orderly panel discussion. Six politicians and activists are debating the association agreement between the EU and Ukraine. 27 of the 28 EU Member States have already ratified the treaty, but the Netherlands is to hold a referendum on the matter in just a few days. The question is being thrashed out everywhere in the media, on the Internet and on billboards. Up on the podium, the supporters of the treaty with Ukraine are Green party members or D66 social liberals. The opponents are a mixed bag: a representative of the animal welfare party denounces livestock farming methods in the Ukraine, while a member of the left-wing populist socialists says the deal serves the interests of multinational corporations. But the driving forces behind holding the referendum in the first place were citizens’ movements such as the EU-critical Forum voor Democratie, whose leader, Thierry Baudet, rails on the podium against the levelling "EU ideology" underlying the treaty.
"It all started in 2013", Baudet explained to me in his office in Amsterdam’s Grachtenviertel the day after the event. After the announcement of the Brexit referendum in Great Britain, the 33-year-old conservative journalist had rounded up EU-critical activists and called for a referendum on EU membership to be held in the Netherlands, too. As chance would have it, the Dutch parliament in The Hague had passed a law on the introduction of referendums, which has been pending for years, in the summer of 2014, and it took effect a year later. It allowed only "advisory" referendums, however: a complicated constitutional reform would have been required to introduce binding referendums. But Baudet and his movement seized the opportunity: ratification of the EU-Ukraine association agreement was the first EU-related parliamentary decision they could oppose by referendum, so they sprang into action.
The government initially seemed unperturbed because parliament had built almost insurmountably high hurdles into the referendum law. 10,000 signatures had to be collected within ten days, then another 300,000 within six weeks – far more than in Switzerland. Baudet's allies from the right-wing satirical blog Geen Stijl, which describes its brand of journalism as "biased, baseless and gratuitously offensive", came up with a solution. The bloggers developed an app with which to sign the petition online, whereupon the referendum committee printed out the signed forms and submitted them to the electoral authorities. This method was controversial, but a court dismissed a lawsuit against the right-wing bloggers.
And so the Ukrainian referendum was eventually held and became the first political feather in Thierry Baudet's cap. He took his campaign from one TV studio and panel discussion to the next and publicized his message on Facebook and Twitter. The Dutch liberal-conservative Prime Minister Mark Rutte, on the other hand, played it cool in the hope that voter turnout would ultimately fall short of the 30 per cent required to validate the referendum results. The government didn’t bestir itself until participation had begun to show signs of exceeding expectations, but by then it was too late to change course and turn the tide. Turnout eventually exceeded the 30 per cent mark and over 60 per cent of the voters said "no" to the EU treaty. It was a slap in the face to the government in The Hague, a warning shot across the EU's bow – and a portent of the Brexit vote to come.
Two years later I meet up with Thierry Baudet for another interview, this time in an Amsterdam bar. In the meantime he has turned his Forum voor Democratie into a party, snatched a seat in parliament and begun mounting a challenge to Geert Wilders' opinion leadership in the right-wing nationalists’ camp. The Ukrainian referendum fuelled Baudet's career, but it didn’t turn the Netherlands into a direct democracy. On the contrary, the Dutch centre-right government has already submitted plans to abolish the new law on referendums. Baudet has a simple explanation for this reversal: the established parties and parliament, which he calls a "talking shop", are clinging to power. "We hold pseudo-debates in The Hague between parties that agree on everything anyway", he says. "The only way to break up the cartel in power is through referendums."
The reality is somewhat more complicated. The Dutch "no" to the EU-Ukraine association agreement had put the government in a very tricky political position. On the domestic front, the referendum was not binding, but it couldn’t just be ignored. On the foreign policy front, Rutte couldn’t afford to simply scrap the association agreement, which was backed by all the other EU states and had already provisionally come into force. Hundreds of thousands of Ukrainians waving European flags had taken to the streets of Kiev in late 2013 for their right to conclude an association agreement with the EU – and paid dearly for their revolution with Moscow’s annexation of Crimea and the ensuing conflict in eastern Ukraine. The EU partners felt obliged to show solidarity with Ukraine – and saw no reason to simply shelve the treaty on account of a Dutch advisory referendum.
After a months-long tug-of-war, Rutte did succeed in wringing a supplementary declaration from the EU partners in Brussels providing that the agreement did not give Ukraine any concrete prospects of EU accession. The terms of the association agreement itself remained unchanged, however, and the agreement was ratified by the Dutch parliament all the same in 2017. After this traumatic experience, the government feared a wave of referenda against European policies – and a loss of its international reliability and capacity to govern. So it set out to end this Dutch experiment in direct democracy before it had really got started.
Harry van der Molen, an MP from the governing Christian Democratic party (CDA), told me in an interview that the new right of referendum was not compatible with representative democracy. In the Netherlands, unlike in Switzerland, the relationship between government and opposition is one not of "concordance", but of competition. Furthermore, he said, legislating involves subtle distinctions and a willingness to compromise, whereas referendums reduce complex problems to thinking in terms of black and white. Advocates of deliberative democracy raise similar objections. For David Van Reybrouck, a Belgian author and advocate of sortition, i.e. drafting decisionmaking committees by lot, the electorate voting on a referendum are poorly informed and guided by instincts and emotions rather than arguments. This view has been gaining more and more adherents ever since the Brexit referendum, which was heavily skewed by misinformation and unrealistic promises.
According to opinion polls, however, the Dutch had come to appreciate their new right of referendum, which, in addition to quadrennial elections, afforded them alternative means of bringing influence to bear on politics. The fears of political paralysis caused by referendums proved unfounded, observes Kristof Jacobs, a political scientist at Radboud University in Nijmegen. Even though online petitions were allowed, only two of the nearly twenty referendums proposed were actually held over the course of two years. After voting down the Ukraine agreement, the Dutch also rejected a secret service "wiretapping" law in 2018. The moderator of a satirical TV show had launched a campaign against this so-called "dragnet law" – and gained a following primarily in the left-liberal milieu.
"The prevailing impression in Europe is that only right-wing populists have won referendums", observes Jacobs, "for which the empirical evidence is meagre". He believes that the more the Dutch experienced sometimes winning and sometimes losing referendums, the more they’d have come to accept them over time. But we’ll never know whether this prognosis would have been confirmed because, on a motion from Mark Rutte's centre-right coalition, the Dutch parliament repealed the referendum law in the summer of 2018.
Referendums alone don’t make for direct democracyIn 2016, the Economist magazine diagnosed a "referendum-mania" in Europe. While in the 1970s an average of three referendums per year were held in European countries (with the exception of Switzerland), in recent years the annual average has been eight. Several governments have indeed tried to counter the democratic recession by giving the electorate a direct say in decisionmaking. Popular votes can spark debate and heighten people’s interest in politics – as in Scotland after the 2014 independence referendum. On the other hand, many European governments have had off-putting experiences with referendums over the past few years. In countries in which the electorate are not called to the polls several times a year as in Switzerland, there is a risk that a vote on a specific issue will devolve into an outlet for general political disenchantment or a warning to the government. As Bulgarian philosopher Ivan Krastev puts it in his book After Europe, "It may be true that the government or parliament has the."
And precisely this was to be Matteo Renzi’s undoing. In late 2016, the then head of the Italian government held a plebiscite on far-reaching reforms to the political system. First and foremost, Renzi wanted his constitutional reform to curb the power of the senate, which was to be drastically downsized and politically weakened. Doing away with a balanced bicameral system was to put an end to legislative gridlocks and augment the government's room for manoeuvre, given the country’s chronic stagnation, among other things, and the pressure to reform the economy. The pollsters initially raised Renzi’s hopes. He presented himself as a reformer and cockily announced that he’d resign if the constitutional reform was rejected. As a result, the vote turned into a plebiscite on the prime minister himself. In the end, 59 per cent of the voters rejected the reform. Renzi had confused the referendum, an instrument of direct democracy, with a parliamentary vote of confidence. While a vote of confidence disciplines parliamentarians because they dread new elections, the electorate have nothing to lose in sending a controversial prime minister packing.
Former British Prime Minister David Cameron will also go down in history as a reckless political gambler. He had hoped the Brexit referendum would settle the EU question within his conservative party and that the "vote to remain" would shore up his own position. But, before the bewildered eyes of the world, he lost the Brexit vote. As it was unclear what sort of relationship with the EU Great Britain should aspire to after leaving, the rifts within the Tory party that Cameron had meant to close only widened in the sequel. Nor was the Brexit referendum a convincing exercise of direct democracy. The term Volksrechte ("people’s rights") is used in Switzerland because citizens can propose initiatives and block legislation even against the will of the government and parliament. In Great Britain, however, it was the government and parliament that decided whether and on what issue the referendum was to be held. When it is the establishment, and not the people, that hold referendums when politically convenient, it is known as a "plebiscite", which has little to do with genuine direct democratic participation in political decisionmaking.
The case of Hungary also goes to show that referendums alone do not necessarily make a country more democratic. Prime Minister Viktor Orbán now and then holds plebiscites on issues that seem politically opportune to him. In the autumn of 2016, for instance, he had Hungarians vote on European refugee policy. Orbán was not interested in learning the people’s opinion – he already knew that distrust of migrants and refugees was widespread throughout the country. His object was to shore up his political standing on the domestic front and obtain a mandate to fight even harder in Brussels against all EU efforts to impose refugee quotas. The wording of the leading question on the "quota referendum" ballot speaks volumes: "Do you want the European Union to be able to mandate the obligatory resettlement of non-Hungarian citizens in Hungary even without the approval of the National Assembly?" Apparently, many Hungarians saw through this travesty of democracy too. Although over 90 per cent of the votes went Orbán’s way, more than half the electorate stayed home, which is why it fell short of the 50 per cent turnout required.
Why national referendums hit a European wallMalta, Cyprus and eight eastern Central European states joined the EU in 2004 – with overwhelming popular support. In Poland, 78 per cent of those who turned out for a referendum voted for EU membership; the corresponding figures in Hungary and Slovakia were 84 and 94 per cent respectively. Meanwhile, however, “enlargement fatigue” had begun to spread in the "old" EU states. In 2005, referendums in the Netherlands and France scuppered the draft EU Constitution by a clear margin. In the sequel, the EU committees drew up the somewhat leaner Lisbon Treaty, on which most of the countries, however, did not let their citizens vote. But the Irish voted down the Lisbon Treaty in 2008, though they approved it the second time round under considerable pressure. Since then, Dutch voters have voted against the EU Association Treaty with Ukraine, their Danish counterparts voted against closer EU cooperation on fighting crime and, during the debt crisis, the Greeks rejected the EU’s bailout conditions of structural reform and austerity. It seems like every time a nation votes on a matter of European policy, the EU gets a slap in the face. Consequently, such referendums have long since come to epitomize the legitimacy crisis of the European construct.
The most resounding slap in the face for the EU was the Brexit referendum on 23 June 2016, whose outcome many feared but few actually expected. The decision to leave shook up the financial markets, plunged Britain into chaos and threw Brussels into a state of shock. The vote seemed to usher in a phase of disintegration, the European project seemed on the brink of collapse. The spectre of a domino effect, indeed of a whole cascade of exit votes in other countries, loomed over the streets of Brussels’ European quarter.
But the Brexit vote did not trigger a domino effect, for the political and economic turbulence caused by the vote in Britain proved too dissuasive. On the contrary, the political reality turned out to be far more complex than the promises made by the "Vote Leave" campaign. No wonder, then, that the government and parliament in Westminster manoeuvred themselves into a gridlock when it came to implementing the referendum. Still, the argument that the instruments of direct democracy are fundamentally incompatible with parliamentary democracy with parliamentary sovereignty, as in Great Britain, falls short. Referendums can provide a supplement to representational democracy as long as there are certain hurdles to prevent a spate of referendums from paralyzing the work of governance. The problems national referendums cause in international relations, however, became all too apparent during the Brexit negotiations between London and Brussels. The Brexit vote politically obliged the British government and parliament to leave the EU. But by no means did it oblige the EU to comply with London's wishes in the negotiations, especially since other member state governments have democratic mandates and are defending their own interests too. Greece had a similar experience with its referendum against the austerity measures imposed by its euro partners in 2015. So did Switzerland with its initiative to establish immigration quotas in 2014: the "yes" vote, which won by a very tight margin, compelled the Swiss Federal Council to take action in Brussels with a view to entering into negotiations with the EU. But the EU states were by no means bound to agree to such negotiations. On the one hand, Switzerland wanted to use quotas and upper limits to turn the free movement of persons into its opposite. On the other hand, it was not in the EU’s interest to risk fragmentation of the internal market on account of the Swiss vote. The decisive factor in international relations is the imbalance in economic and political power, not whether a negotiating party’s position has the support of a referendum.
National referendums on European issues put the EU in an unresolvable democratic dilemma. If the EU does not comply with a national referendum, it is considered undemocratic. But it would also be undemocratic to blindly yield to each and every national referendum. In the Dutch referendum on the Ukraine, only 30 per cent of the Netherlands’ 13 million eligible voters turned out, and roughly 60 per cent of them rejected the association agreement. If Brussels and the other EU states had buried the treaty out of respect for the people's verdict, a good 2.5 million Dutch naysayers would have decided an issue that affects 500 million citizens all over the EU and another 45 million in Ukraine.
Europe-wide referendums and citizens’ initiatives?In other words, when it comes to pan-European issues that affect all EU states and citizens, pan-European referendums would be more legitimate than purely national votes. Such Europe-wide referendums could take various forms. They could take the form of popular initiatives and referendums on European laws and decisions, as in Switzerland. Or referendums on strategic guidelines regarding future migration or digital, economic and environmental policies, leaving the implementation thereof to the representative EU institutions. The results of Emmanuel Macron's consultations and Jean-Claude Juncker's online polls could also have given rise to a European referendum instead of culminating in an arid report to the heads of state and government. In Switzerland, constitutional amendments require a double majority – a majority, that is, of both popular and cantonal votes. The EU has a qualified majority voting system too, in which a resolution cannot pass without a 55 per cent majority of member states’ votes, which, moreover, must represent at least 65 per cent of the European population. Such a double majority could also be required for referendums to keep large EU states from simply overruling small ones.
But there is a mounting two-pronged resistance to the very idea of EU-wide referendums. Nationalists see the nation state as the only legitimate space for democracy. They show little interest in more voter participation at the pan-European level because that would imply recognition of a European people, which, in their view, cannot and must not exist. But the pro-European establishment are sceptical too. An area with a population of 500 million is too big for direct democracy, so they say in Brussels – a rather transparent objection which, of course, betrays their fear of the people. After all, wouldn’t it also be necessary to conclude that Europe is too big for parliamentarianism, too, since a single MEP represents far fewer citizens than an MP in a nation state? And isn’t it becoming increasingly easy to overcome geographical and language barriers using digital tools? A pan-European referendum would create stronger ties between Europe's national publics and extend European democracy beyond national borders – which is why it ought to be advocated by fervent supporters of European unification.
These musings are not wholly unfounded, for the EU has already seen the first stirrings of pan-European citizens’ initiatives. The Lisbon Treaty empowers citizens who collect a million signatures to launch an initiative on EU policy and request that the EU Commission propose legislation to that effect. This European Citizens' Initiative should enable citizens to participate directly in EU policymaking – but in practice such participation is still dreaded in Brussels, as the "Stop Glyphosate" initiative, for example, goes to show.
In 2017, the EU member states fell out over authorization of the use of glyphosate, a "plant protection product". There were conflicting studies about its potential carcinogenic effects: the industry wanted to keep this pesticide on the market, whereas environmental organizations called for a ban. Even before the member states agreed to allow its use for another five years, environmentalists and activists launched a citizens' initiative. They called for a ban on glyphosate, mandatory reduction targets as well as a general reform of the pesticide approval procedure. In the spring of 2018, the EU Commission presented a proposal for more transparency in the approval process, but refused to ban glyphosate because they could find neither scientific nor legal grounds for doing so. So the citizens' initiative was shelved even though its principal demand clearly had not been met.
This case shows why the citizens’ initiative is a toothless tiger. The citizens’ committees have to gather signatures from at least a million citizens in at least seven different EU countries within twelve months. Despite the tremendous efforts involved in meeting these requirements, the Commission then remains at liberty to decide whether or not to act on the initiative and propose corresponding legislation. Some seventy initiatives have been submitted so far. The Commission declared almost a third of them a priori inadmissible because they concerned matters outside the EU’s remit. Besides the call for a glyphosate ban, only three other initiatives made it to the finish line, and then their impact was modest at best. The Commission did not even react to a church-backed initiative to protect human embryos. In response to an initiative to ban animal experiments, it held a conference. And in response to a citizens’ initiative to establish a universal human right to water and to combat the privatization of the water supply, after four years of silence the Commission proposed a new directive to improve the quality of drinking water.
The EU Commission’s cherry-picking approach to citizens’ initiatives threatens to stifle this new tool of direct democracy. At a summer of 2018 event in Brussels, anti-abortionist Ana del Pino denounced what she called "excessive institutional control". Pablo Sánchez Centellas, co-coordinator of the "Right2Water" initiative, called on the Commission to act on all successful initiatives by proposing legislation, which would at least give rise to debate in the European Parliament and the Council of Ministers. In the winter of 2018, to be sure, the European Parliament and Council of Ministers did approve a reform proposed by the EU Commission to lower the bureaucratic hurdles for initiators of citizens' petitions. But the Commission is loath to share its exclusive right to propose European legislation with citizens’ committees – even though it does have sufficient room for manoeuvre to show greater flexibility in its handling of citizens' initiatives.
Switzerland as a role model – or a deterrent?After the Swiss "yes" vote on the 2014 initiative to curb immigration, Mario Borghezio, an MEP representing Italy’s Lega Nord, caused quite a sensation at the European Parliament in Strasbourg. He unfurled a Swiss flag, began trotting across the chamber floor and interrupted the parliamentary debate shouting slogans like "Free Switzerland!" and "Stop the EU dictatorship over the people!" And that was not an isolated episode: for right-wing nationalists, Switzerland and its direct democracy are great role models, even if every now and then Swiss politicians and diplomats object to this instrumentalization.
There are several reasons for this glorification of Switzerland. Firstly, the demand for more "power to the people" is in line with populist discourse. Secondly, Switzerland is proof positive to all Eurosceptics that a country can indeed prosper outside the clutches of the Brussels bureaucracy – it is hailed as the Gallic village holding out against the Roman Empire. But these arguments ignore the sacrifice of Swiss political sovereignty involved in adopting a number of EU regulations without having any say in them. Thirdly, those who, like Viktor Orbán, harbour sympathies for majority-rule democracy are impressed by the unhampered exercise of direct democracy in Switzerland, where the majority seem to be able to do as they please – regardless of whether or not it suits the "Brussels elites", the "unelected judges" and the "politically correct establishment".
The electorate do in fact wield a great deal of power in Switzerland. Not only can the people force a referendum against laws passed by parliament, but they can also propose and put to the vote constitutional amendments through citizens’ initiatives. Since there is no constitutional court, the Swiss parliament decides on the admissibility of citizens’ initiatives. An initiative may only be declared invalid if it commingles two unrelated issues (thereby violating the principle of "unity of subject matter") or violates binding international law, which, narrowly construed, only comprises a few provisions such as the prohibition of slavery and torture.
On the whole, the Swiss electorate seldom take extreme decisions. But the relative lack of restraint in recent years has made it possible to pass initiatives introduced by the right-wing nationalist SVP to deport foreign criminals and ban minarets, initiatives that conflict with the European Convention on Human Rights, but also with fundamental rights under the Swiss constitution such as freedom of religion or the principle of proportionality. Another SVP initiative was voted on in November 2018: entitled "Schweizer Recht statt fremde Richter" (i.e. "Swiss law instead of foreign judges"), it provided that popular votes must always take precedence over international law. It would have challenged the European Convention on Human Rights and undermined the protection of fundamental rights in Switzerland. The SVP were unable to muster a majority, but it remains nonetheless crucial to rein in the will of the People. The SVP stylize the Volk into a mythical and infallible entity and discredit as anti-democratic anyone who dares to point out the limits on the will of the People.
But who are the People? As René Rhinow, a constitutional lawyer in Basel, explains, there are at least five dimensions to the Volk: the resident population (including foreigners) affected by a vote, the Swiss nation (i.e. all Swiss citizens), all eligible voters (who are of age), voters who actually go to the polls to vote on a specific referendum, and the majority who prevail on a specific referendum, often comprising only 15 to 20 per cent of the entire population affected by a new law or constitutional amendment. This doesn’t mean that votes with a low turnout should not be binding. But we should be wary of absolutizing such a "majority decision" as an infallible expression of the will of the People.
For a democratic decision is not above the law in a constitutional state. As the highest law of the land, the constitution not only guarantees the rules of democracy. It also protects the fundamental freedoms of citizens and provides them with instruments to defend themselves before independent courts against the abuse of power by the state. The law guarantees the separation of powers and limits the power of each institution through the powers vested in the other institutions. In Switzerland, in addition to the people, the courts, government and parliament must do their duty too – which includes making counterproposals to popular initiatives and deciding on the concrete implementation of referendums that might conflict with other legal norms.
If Europe dares to introduce more direct democracy, it need not amount to a populist dictatorship of the majority. Instead, binding EU citizens’ initiatives or European referendums ought to be embedded in solid safeguards for fundamental rights and in representative institutions and, if need be, supplemented by deliberative democratic projects. The lesson to be learnt from Switzerland, however, is that populism cannot be curbed by law and institutions alone: political engagement is also needed.
The passage of several constitutionally problematic initiatives prompted civil society in Switzerland to take action in 2016. An alliance of rather small associations, organizations and individuals, including Operation Libero, a movement that has by now made a name for itself throughout Europe, opposed the SVP on one of its core issues. The party had launched a so-called "Enforcement Initiative" because it felt the Swiss parliament had not gone about enforcing a prior initiative to expel foreign criminals radically enough. The referendum was extreme not only in terms of Swiss policy on handling foreigners; it was also tantamount to an attack on the separation of powers, as it would have curtailed the powers of parliament and the judiciary. The civil society alliance took the offensive in the ensuing referendum campaign, refused to accept the populist narrative and focused its campaign not on foreign criminals in Switzerland, but on this looming attack on constitutional democracy. And it worked: at the end of the day, almost 60 per cent of the voters rejected the Enforcement Initiative. The same story played out in November 2018 when a similar alliance ranging from human rights groups and researchers to trade associations fought down the SVP initiative "Swiss law instead of foreign judges" with the support of two thirds of the voting electorate.
This is the kinds of political engagement that is needed to defend liberal democratic values. One of the weaknesses of direct democracy in Switzerland is that these values can be jeopardized by referendums. One of its greatest strengths is that the people defend these values time and time again.