On March 14, Professor Richard Albert, the William Stamps Farish Professor of Law at the University of Texas at Austin, spoke on comparative referendums. His event, “Discretionary Referendums in Constitutional Amendment: A Comparative Perspective,” was hosted by the Robbins Collection. The timing for Professor Albert’s talk was fortuitous, as the U.K. Parliament was in the middle of a vote on whether or not to delay Brexit and to extend the negotiation period. The Brexit referendum was one of the referendums that was at the center of Professor Albert’s paper of the same name. and the discussion on March 14. In addition to the case of the Brexit referendum, Professor Albert discussed three more referendums. A French referendum in 1962, which was passed, moved France away from an electoral college system to one where the President was elected by direct popular vote. As a comparison to the two referendums above, Professor Albert described the case of a failed Canadian referendum in 1992 which sought to amend the Canadian Constitution, and the Colombian peace deal with the FARC in 2016 which failed in referendum and had to eventually be passed through legislative channels. Professor Amnon Reichman, the organizer of the event, said, “Professor Albert’s research on constitutional amendments in a comparative perspective is interesting conceptually and significant practically. It sheds an important light on what is unique about the exercise of constitutional legal (and political) power either pursuant to the procedures set forth in the constitution or aside these procedures.”
All of these referendums had at least one thing in common: they were not constitutionally required, and in most cases, the Parliament or Congress of each government had to create mechanisms by which the results of referendums could be validated. Normal and legal channels had to be bypassed, either by creating legislation to move ahead with the referendum and honor the results, or to take steps after referendums to validate, or invalidate, the results. In all cases, however, the referendums took place because government leaders felt compelled by political imperatives to bring the vote directly to the people.
Event participants discussed the paper and how the United States, unlike the four countries identified above, does not have national referendums, so things that have happened elsewhere, like the French getting rid of their electoral college through a popular referendum, would not be able to happen here. As an hypothetical example, Professor Albert and the participants questioned what would have happened if Obama had pushed through a national referendum to question overturning Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). How would have Congress and the Supreme Court reacted to such a referendum?
There was also a question of exactly how the will of the people can be determined, and the extent to which the will is represented by any one particular election. Before the FARC peace referendum in Colombia in 2016, the Congress took two controversial actions that many saw as an attempt to undermine popular will. One action was a law to change the minimum turnout required for any plebiscite to be valid from 50 percent to 13 percent of all registered voters. The turnout for that plebiscite was just under 38 percent, so without that previous Congressional action, the results of the plebiscite would have not been valid in any event.
Professor Albert’s lecture and discussion were a part of the Robbins Collection Speaker Series, highlighting how comparative legal research can offer solutions to contemporary legal issues. You can download Professor Albert’s paper here: Richard Albert Discretionary Referendums in Constitutional Amendment (February 2019)