Direct democracy is in danger of being taken over by the wealthy. A survey of 34 countries’ regulation of referenda shows that worldwide, regulation is minimal and open to abuse.
Countries everywhere need urgent reforms of their institutions of direct democracy to ensure that it is not taken over by the wealthy.
Online campaign regulation: Online campaigning has become a prominent and controversial part of referendum campaigns. The case of Cambridge Analytica’s use of personal data during the United Kingdom’s Brexit referendum campaign is an il-lustration of this. However, most countries do not provide any regulation at all of online campaigns. Eleven countries (or 29 per cent) have rules and regulations that pertain to online campaigning. These include, above all, the Baltic States, Iceland, and Brazil, and to a limited degree, Greece. To make referendums free, fair and transparent similar regulations ought to be introduced.
Campaign spending limits: One of the most frequently criticised aspects of referendums is the role that money plays. This notwithstanding, only very few countries have limits on campaign spending. Of these, the United Kingdom, Brazil, Slovakia, Slovenia, Lithuania and Canada are the only democratic countries to have strict limits on how much money campaigns may spend during referendum campaigns. However, even these rules are often circumvented. For example, the Canadian regime is weakened by the provision that spending is limited for each of the participants and not for each of the sides in the campaign. Likewise, the Lithuanian and Brazilian rules give richer citizens a distinct and unfair advantage, as campaign contributions are limited to a percentage of the individual’s income. Indexed limits – like in the United Kingdom – would make referendums more legitimate.
Limits on government spending: The limits on government spending during referendum campaigns are, at best, patchy. The result of a referendum can be questioned if the administration is able to spend taxpayers’ money on an outcome they seek. There is an urgent need to introduce rules that regulate and limit this practice.
Media balance: Overall, 41 per cent (or 14 countries) require balance or equal airtime to both sides in referendum campaigns by law. However, the problem is that many regulations assume that the parties in the respective parliaments reflect the sides in referendums. This is often far from the case. It would be far better to adopt rules like those in Iceland where the public broadcaster, RÚV, must ensure a fair and balanced representation of rules. However, to require parity in privately owned media may not be desirable as it is likely to infringe on free speech.
Women and marginalised groups: In most countries efforts to ensure the engagement of women and minority or other mar-ginalised groups are extremely rare. Only Italy and Poland (and the Canadian province of Quebec) have explicitly addressed this concern in primary legislation. Active efforts to involve and engage women and marginalised groups should be prioritised.
Overall regulation: Most countries have very little regulation of referendums. Australia, Brazil, France, Lithuania and Poland are the countries with the most extensive schemes of regulation. Despite the enactment of the Political Parties, Elections and Referendum Act 1999, Britain is one of the relatively underregulated countries. However, many established democracies (such as the Scandinavian countries) have similarly low levels of regulation for referendums.
Special majority requirements: Some have raised concerns that low turnout can lead to the enactment of controversial policies. For example, the fact that only 37 per cent of those eligible voted for Brexit meant the result was regarded by some as illegitimate. While special majority requirements exist in some countries (in Australia and Switzerland for constitutional amendments, for example), such mechanisms are not the norm. It is not imperative to introduce these.