One of the biggest challenges in the fight against corruption is getting people in power to reform the very system from which they currently benefit. Over the past year, we have seen anticorruption advocates in Colombia and Peru attempt to bypass this hurdle using national popular referenda on anticorruption measures.
In Peru, the referendum on December 9, 2018 came on the heels of the massive Odebrecht scandal, which implicated all of Peru’s living former Presidents. Current President Vizcarra and his supporters originally proposed a referendum containing three anticorruption reforms: banning the immediate reelection of legislators and executives, reforming the system by which prosecutors and judges are appointed, and instituting new campaign finance regulations. The required legislative approval of the referendum took several months, and during this process the legislature added another proposal (not supported by President) to create a second legislative chamber. In the end, the three original reforms passed, and the proposed bicameral legislature failed after a successful “Yes, yes, yes, no” campaign by the President and his supporters.
Colombia’s referendum also came in response to the fallout from the Odebrecht scandal. On August 28, 2018, Colombia had a national referendum on seven anticorruption measures that aimed to improve transparency in governance, institute legislative term limits, and cut legislator pay. Six of the seven measures proposed in the referendum had previously failed in the lower house of the Colombian legislature, but 99% of voters approved all seven measures in the referendum. Though the total number of citizens voting fell just short of the quorum required for the referendum to be binding, President Duque convened an anticorruption roundtable and vowed to implement all seven measures by December 2018. The President proposed eight measures inspired by the referendum to the legislature, but momentum has stalled as legislators look to modify the proposals or avoid voting on them. With no clear deadline for if and when they will be passed, their fate is now uncertain.
As I discussed in an earlier post, the Colombian referendum was not without its faults, specifically with respect to the inclusion of counterproductive retributive measures. More generally, while a national referendum may seem like an ideal way to bypass conflicted legislators, a referendum poses serious three risks that need to be addressed if one hopes to use this lawmaking mechanism to combat corruption:
- First, referendum provisions may not be sufficiently specific. Most people would probably say they are against corruption and in favor any effort to combat it. Thus, a broad proposal that promises to root out corruption would likely gain public support. At best, these broad measures are well intentioned but not specific enough to be immediately implementable, leaving room for legislators to modify the specifics and “remove the bite,” making the measures less effective. Thus, anticorruption referenda must include provisions that are specific and implementable in order to prevent legislators from modifying them after the fact and to keep politicians from using the anticorruption label to advocate for changes that would undermine their opponents.
- Second, it is difficult to prepare the public to vote on technical anticorruption proposals. This problem is the mirror image of the first one: Just as an anticorruption referendum proposal can be so vague as to be meaningless, it can also be so specific and technical that most voters cannot understand it. As a result, even when the proposals themselves are fairly specific, voters are still mobilized around the general issue of corruption, rather than the specific means to combat it that are at issue in the referendum. For example, in Colombia, the group responsible for organizing the anticorruption referendum ran a creative campaign, complete with a viral reggaetón song that featured famous rappers and Congressmen rapping about corruption. The song used a catchy rhythm to call out each measure in the referendum and managed to get 11.6 million voters to the polls, 99% of whom voted yes. But while the song was memorable and brought attention to the referendum, it did little to explain the nuances of each proposed measure. This example illustrates how difficult it can be to inform a broad audience about specific policy proposals in a way that prepares them to accurately assess their potential success.
- Third, the referendum process lends itself to overly simplistic responses to corruption that are motivated by a desire for retribution. This is especially so given that anticorruption referenda often come on the heels of massive corruption scandals. Therefore, people are often motivated by anger at their current leaders when voting on anticorruption measures. Unfortunately, this can lead to the inclusion of retributive polices that may do little to combat corruption, but feel great in the moment. For example, in Peru, faith in elected officials is at a low point. This distrust in the political ruling class may explain why Peruvians voted to approve a broad ban on the immediate reelection of legislators. However, this ban on reelection might actually make legislators more vulnerable to capture by special interests. Likewise, as I argued in my previous post, the proposed legislator pay cut in the Colombian referendum may make legislators more rather than less susceptible to corruption. The challenge is to find a way to generate enthusiasm around the vote without resorting to retributive proposals that excite people in the short run but are ultimately ineffective for combating corruption.
Popular referenda may seem like a useful tool for fighting corruption because they can overcome political inertia, bypassing the legislators that benefit from the current system. However, these referenda also come with several risks. On balance, it is a positive sign that anticorruption referenda are now in vogue, because it signals that ordinary citizens are hungry for change and eager to mobilize. Nonetheless, anticorruption advocates should use caution before joining Colombia and Peru by advocating for national referenda in their own jurisdictions. At the very least, they should take note of the risks described above and think seriously about ways to mitigate them.