By Larry Schooler for EDRblog.org.
Did the United Kingdom’s Brexit vote resolve anything? What does such a narrow margin of victory for the Leave (EU) position really mean?
What about the referendum in Austin, Texas, on transportation networking companies like Uber and Lyft? The measure was drafted by the companies and when it failed, two of the largest companies left the market entirely, though both sides have signaled the conversation isn’t over. What did that accomplish?
And what happens if a referendum moves forward in Minneapolis to require police officers to carry liability insurance?
It may not even make it onto the ballot if the City Council says it’s illegal under state law, which could prolong the fight even longer in an expensively litigated process.
It’s clear referendum measures drafted by citizens, reinforced by petition signatures, are here to stay, or perhaps they should be—they do serve as an important “check” on the power of elected officials. But a “referendum on referendums” is in order.
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For some context, know that I develop and implement public engagement strategies for a living, and I am a big proponent of the Spectrum of Public Participation from the International Association for Public Participation. As you will see if you click the link, along that spectrum is the “Empower” level—essentially, governments may allow the public to make some decisions directly at the ballot. When a fundamental change to how a city, state, or nation is governed comes up for discussion, or when the public is asked for more money to pay for government services, it makes general sense to me that voters should have some opportunity to review those proposed changes—taxation with representation, if you will.
Additionally, participatory budgeting constitutes one of many examples of such an “empowered” decision-making processes, and such a referendum also seems worthwhile—let citizens come up with ways to spend their own tax dollars, and then take a vote on which of the suggested projects are worth public investment.
But I see a critical distinction between a process giving a voter several choices on what to buy with their tax dollars and a measure that is reduced to the question, “Are you in… or out?” Hardly any decision, political or otherwise, is ever that simple—and especially one affecting millions like Brexit. Had the European Union referendum been presented with, say, more options than “Leave” or “Remain,” I could see it as more legitimate. That is, what if the choice were to remain but with specified changes to the United Kingdom’s membership? Or to leave but retain specific continental alliances?
So, the notion of a citizens’ right to petition, enshrined in the U.S. Bill of Rights, remains very legitimate to me. After all, no matter how legitimately chosen a governing body might be, at least in democratic nations, citizens must retain some check on their elected representatives’ power—and not have to wait to exercise that until an election (often scheduled by those same representatives when they deem it necessary).
But I think Roger Scruton had it right on the BBC when he said, “The common good, rather than mass sentiment, should be the source of law, and the common good may be hard to discover and easily obscured by crowd emotions.” Furthermore, he argues convincingly the notion of “direct democracy” practiced by the ancient Greeks and even some towns and cities in New England is very difficult to implement in the much larger and more dispersed societies we now have.
Now, that isn’t to say that the public has no idea of what the common good is, nor should the petition process be considered null and void simply because some petitions might lead to outcomes that elected officials do not like or believe do not reflect what’s best for the common good. It does, however, suggest the limitations of an over-simplified pair of choices given to the public on a ballot, that likely leaves many feeling defeated or excluded from whatever the outcome.
The use of a referendum in such high-profile ways, however, also suggests that governments must continue to examine and re-examine what it means to engage the public effectively—before a matter reaches the ballot. Are governments enabling those affected by decisions to affect those decisions, without ballots? Are we making decisions before letting those affected by those decisions weigh in? Are we open to options we haven’t considered that a large portion of the public supports? Can we have dialogue with our public and facilitate deliberation among citizens in search of a consensus on policy, rather than giving them a chance to weigh in at the 11th hour on a limited set of options? Can people participate in the conversation with their representatives without waiting around for hours to speak for minutes?
A referendum on how the public can and should participate has my vote. But our current referendum process needs to earn my vote.
Larry Schooler develops public engagement strategies, mediates public disputes, and facilitates civic dialogue in Austin, Texas, and across the U.S. He is a fellow at the Annette Strauss Institute for Civic Life at the University of Texas at Austin, where he has offered Public Engagement Training to students from around the country. His work has been recognized by Harvard’s Kennedy School of Government, Governing Magazine, and the National League of Cities, among others.