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The Institutional Design of Referendums: Bottom-Up and Binding

Contemporary democratic theorists generally argue that “referendums,” understood as popular votes on political issues as opposed to elections in which citizens select representatives, are not fit for democracy. For instance, they “[provide] no opportunity for human contact or mutual persuasion” (Mansbridge 1983: 275), “take place under conditions that are even less deliberative than ordinary election” (Gutmann and Thompson 2004: 60), or “[constitute] a fait accompli that can no longer be challenged” (Offe 2017: 21; for other examples, see e.g., Achen and Bartels 2016: 85–86; Gastil and Richards 2013: 254; Parkinson 2009: 1; Shapiro 2017: 82; Sunstein 2001: 7; Weale 2018: 36). These all-encompassing, unifying claims however rely on a reductive conception of “referendums” that focuses on the one feature that all referendum and initiative processes share: the voting moment. This dominant conception has little in common with differentiated political analysis and practice of what we here call popular vote processes. Its exclusive focus on the popular vote hides other aspects of these processes that importantly vary from one institutional design to another. Once we also pay attention to what happens beyond the vote itself, it becomes possible to see important distinctions. We here wish to highlight three of them. First, the initiative, a collective right to statute or propose a piece of legislation or policy for popular vote, differs from the referendum, a collective right to refuse (or accept) a decision or proposition of elected authorities. The former leads to a popular vote on a text proposed by citizens or civil society organizations; it is an agenda-setting or authorship device of the citizens. The latter leads to a popular vote on a text adopted or proposed by majorities of elected representatives; it is a device of control and issue-based accountability of the executive and legislative. We consider that, because they have different and specific advantages and disadvantages, these two devices should be evaluated separately. In order to respect the limited scope of this contribution, we leave initiatives on the side to insist here on what referendums can contribute to democratic systems. Second, some referendums are mandatory, in which case they are required by constitutional law, while others are optional. The latter can be either triggered top-down,