Those who are against direct legislation assert that the working of referendum shows that its advantages have not been realised in countries where it has been experimented except in Switzerland.
Bryce concluded that while the Swiss were well qualified by intelligence and knowledge of public affairs, it was, however, difficult to say that it had unqualified success in other countries as well.
Finer thinks that direct legislation has done little good and its experience “would, perhaps, warn us not to accept direct legislation as a remedy for the defects of a parliamentary government. It improves nothing; neither the laws nor the people. It disturbs without providing solutions.”
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Following arguments may be examined in this connection:
One of the chief objections against the referendum is that it has undermined the prestige of the legislative assemblies and has adversely reacted on the quality of membership. When representatives know that ultimately the result of their efforts may be reversed by the process of referendum, they will take little interest in the discharge of their legislative duties.
If the measure succeeds at the popular vote, the credit for it goes to the people and not to the legislature. If it does not succeed, the blame goes to the legislature. The status and authority of a legislature must suffer with the result that the people become less deferential towards it.
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Bryce, in summing up the effects of direct legislation on the legislature, says: “Its sense of responsibility is reduced and it may be disposed to pass measures its judgment disapproves, counting on the people to reject them, or may fear to pass laws it thinks needed lest it should receive a buffet from the popular vote.”
The real difference between direct popular action and the action of the legislatures lies in the field of deliberations. The voters cannot assemble and discuss matter and consequently the opportunity to arrive at truth is lost. Truth emerges from the clash of opinions.
The man in the street is not adequately qualified to form and deliver an opinion upon many subjects of legislation, particularly when legislation has become so technical and complicated. A simple ‘yes’ or ‘no’, as referendum requires, does not indicate the real will of the people.
“The difficulty, in fact” as Laski points out, “which direct government involves is the final difficulty that it is by its nature too crude an instrument to find room for the nice distinctions inherent in the art of government.”
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The making of laws requires special training and experience which the people at large cannot possess. Nor can they have the knowledge necessary to enable them to precisely appreciate the implications involved in the proposed legislation.
The interests of the people are really safer in the hands of the representatives chosen for their talent and mature judgment than when submitted to the hazard of a popular vote.
All legislative measures are minutely discussed and deliberated on the floor of the legislative assemblies. Amendments and alterations are made in the light of discussion and the knowledge of new facts. But “you cannot amend and alter when your legislative assembly consists of millions of members.”
The people must accept or reject the bill, no amendments are possible. The vote must be given for the whole bill. “It is an appeal from a court which has the makings and some of the equipment of a wise legislature, to all the crudities of a majority vote.”
One of the criticisms against direct legislation, and really a cogent one, relates to the small size of the votes cast, at a referendum. It is maintained that the result of the ballot does not fairly represent popular opinion, because in most cases the opponents of the measures go to the polls in larger proportion than its supporters.
The number of large abstentions at a referendum also proves that many a voter either cares little for his civic duties, or knows his unfitness to perform them. “The low percentage of voters,” says Carl Friedrich, “participating in many of these decisions has raised the problem of the trustworthiness of the result.
In the case of the compulsory referenda in the United States with their very low percentages, this trustworthiness has been widely questioned. Cases can readily be cited where the electorate reversed itself in short order.”
Moreover, when people are frequently asked to cast their votes, they develop “electoral fatigue” and psychologically abstain from voting. The result is that the decision arrived at is invariably that of a minority of the citizens and it becomes difficult to know whether there is any public opinion at all on the referendum.
The referendum sometimes involves unnecessary and harmful delay in passing many laws of vital national importance. All this takes away the educative value of the referendum. When citizens do not interest themselves in public affairs, direct legislation becomes a farce.
When people cast an affirmative vote and the law is ratified by a small majority vote, as it happened on the question of the Swiss Federal Penal Code, and of the Federal Economic Articles in 1938 and 1947, with a majority of only 53 per cent in both the cases, the moral authority behind the law may suffer more than would be the case had opinion been nearly equally divided in the Legislative Assembly.
In countries, where direct legislation does not exist, a law passed by representative legislatures is accepted in a normal course and no one cares to enquire what the majority that passed it was.
It comes in the regular way from the usual organ of the people’s will and it is accepted by people in the usual way. But when it goes to the popular vote, everyone is keen to know the majority that passed it. Those who opposed it, carry on their opposition openly as they feel aggrieved to have been overridden by a negligible majority.
There is no justification to hold that direct legislation lessens the evils of party system. As a matter of fact, political parties become more active when frequent votes are to be taken. The referendum accentuates political rivalry and partisan spirit which, in a parliamentary government, may prove embarrassing to the party in power.
Finally, “the most comprehensive but also the vaguest argument”, says Bryce, “adduced against the referendum is that it retards political, social and economic progress.” Sir Henry Maine developed this point in his book. The Popular Government, in 1885, and it particularly impressed Englishmen who had always associated the masses with conservatism.
But it is not supported by Swiss experience. It is true that prejudice or undue caution has in some cases delayed the progress of economic or social reforms which the Federal Assembly proposed, but no general harm has followed in Switzerland from that conservatism.
All told, one is disposed to agree with Professor Laski that direct legislation has not any special contribution to make to our problems.
Herman Finer suggests that “we should all be better served if our concern were fixed upon the reform of the party system; we should strive, then, to make the parties more responsible-minded, more sensitive, more masters of the social sciences.”
Even the question of referendum, he concludes, is the question “of the quality of the country’s political parties.”
And if it has admirably succeeded in Switzerland, it is due to the tranquillizing influence of Swiss party system. Politics in Switzerland is conducted almost without regard to party leanings. There is no professionalism in politics and demagogues do not find favour with the Swiss people.