On the Democratic (but Limited) Virtues of the Chilean Exit Referendum

Sergio Verdugo

IE University

The Chilean referendum that resulted in the rejection of the Constitutional Convention’s proposal will probably be treated as an outlier case in the constitution-making literature. Data from Elkins & Husdon shows that only 11 out of 179 referendums have rejected a constitutional replacement proposal. The number is even more striking if we consider that, according to their data, constitutional replacements “are almost 600 percent more likely to pass than are amendments.” (After controlling for factors such as the level of democracy, they claim that those types of “replacements are more than 150 percent more likely to pass than amendments”). They hypothesize that the high probability of referendum approval defeating status-quo bias may connect to the effect of “bundling.” As constitutional replacements offer numerous changes (constitutions can be the product of an “accumulation strategy” and they can resemble omnibus bills, as I explain here), they can reflect large compromises appealing to a diverse set of groups while adding several preferences and the “package” can be more than the sum of its parts. A strategic use of constitution-making as offering an all-or-nothing alternative has been rejected by Roberto Gargarella. In a recent post on this blog (in Spanish) commenting on the Chilean case—and see also here (in English)—Gargarella argues that citizens in these types of referendums are offered a sort of “electoral extortion” in which they might be “forced to vote for what they repudiate… in order to support what they most desire” and that voters may end up using their votes to punish or benefit the agenda of the incumbent government. He also regrets that the Chilean Convention did not follow the example of the citizens’ assemblies in Ireland, though he does not—to my knowledge at least—criticize the idea of having an elected constituent assembly with the specific features of the Chilean procedure—i.e., a one-time voting rule for each item in a procedure that did not encourage much cross-party collaboration and that benefited independents and undisciplined groups accumulating preferences. 

I claim that, if Gargarella’s criticism is abstract (referendums can be subject to electoral extortion in general), the criticism can be situated in a larger academic debate that scholars such as Albert Weale have advanced in the past. Many have already identified the agenda-setting problems of referendums and their limited binary options, the dangers of having politicians claiming that the result of the plebiscite is the will of the people while diminishing the possibility of encouraging large compromises amongst rival parties and ignoring the possibility of shifting majorities and context-dependent outcomes. However, those types of criticisms should distinguish larger democratic contexts, procedures, and the types of referendums for the dangers to be applicable—see a useful map of these types in Richard Albert and Richard Stacey’s new edited volume. The Chilean case can be used—as I explain below—to show how a referendum can serve the purpose of conditioning a larger public debate according to the preferences of the median voter, which is no small payoff for a democratic instrument. This is one of the reasons why abstract criticisms cannot be automatically used in a context-dependent discussion. On the contrary, if Gargarella’s criticism is context-dependent—as it might be, after all—then he needs to consider what role the Chilean referendum played in the context of a larger constitution-making design. It is not enough to say that Chileans were given a tragic dilemma. We need to understand the function that the exit referendum was supposed to play in a post-sovereign multistage procedure. I argue that, once we see the Chilean exit referendum more holistically, we can acknowledge that the referendum played a more modest but still valuable role.

In the Chilean process, citizens were not supposed to become constitution-makers at the end of the process but during the process via elections, representation, transparency, popular initiatives, indigenous consultations, and other means of participation—Jon Elster’s hourglass metaphor doesn’t fit the Chilean process. We know that referendums do not turn citizens into constitution-makers, and nor they are a sufficient condition to claim that the constitution was the product of the sovereign will—see, e.g., Richard Stacey’s argument. However, referendums can perform a more effective function as checks on political power. As Leah Trueblood has argued recently, referendums are more defensible when treated as “limits” (the people as veto players) rather than substituting representation (as in the Brexit referendum example). There are good reasons to think that referendums can work better when they are aimed at confirming a proposal in democratic and free conditions rather than by giving a blank check to politicians—which is why we should not assimilate the problems of the recent referendums that benefited Erdogan in Turkey (2017) and Putin in Russia (2020) with the Chilean case, just to name a couple of examples. 

With these ideas in mind, I argue that the Chilean exit referendum served two purposes: first, the referendum served as a check to the Constitutional Convention—citizens were not, at that stage of the process, constitutional drafters but constitutional veto players. Second, the referendum was aimed at conditioning the discussions of the Constitutional Convention by encouraging its members to align their preferences with the median voter so that citizens had fewer reasons to veto the final product. In this context, the first goal was achieved because voters succeeded in declining to approve the constitutional proposal because they disagreed with critical parts of its content—I have discussed the critical issues citizens disagreed with elsewhere. Because the referendum was a limit to the Convention and not a means for constitution drafting, its outcome is consistent with an ongoing rejection by citizens of the current Constitution—which many still connect to the Pinochet dictatorship and blame for Chile’s social and economic inequality problems—see an explanation here. Given the tragic dilemma of keeping the current Constitution or accepting a new constitution they disagreed with, most citizens preferred for politicians to start another constitution-making process and follow the promises made by those who campaigned in favor of the Reject vote invoking the idea of “por una nueva y buena constitución” (for a new and good constitution)— I am not counting the small minority that wants the current constitution to remain, which I think is close to around 20%.

I also argue that the second goal of the exit referendum—conditioning the constitutional deliberations to align them with the median voter—failed precisely because the proposal was rejected in the end. Nevertheless, we can still find signs in the constitution-making process of how the existence of a referendum encouraged constitution makers to try not to stray too far from the citizens’ preferences. If this is true, even if imperfect, the second goal should be important for Gargarella’s idea of encouraging a conversation among equals in a non-ideal context where citizens’ assemblies were not a politically feasible possibility. There is, then, a limited democratic virtue in a referendum that is capable of encouraging politicians to consider voters’ preferences. 

Gargarella may reject this argument by responding that he also disagreed with the constitution-making process as a whole. In this case, Gargarella’s criticism may remain applicable only to a scenario that was not politically possible in the first place. This is important because constitution-making processes never take place in ideal scenarios and Gargarella, when commenting on a specific experience, should consider the limitations of ideal theory. Gargarella has favored the idea of citizens’ assemblies (and I myself suggested organizing a citizens’ assembly in 2019), but the idea of having a citizens’ assembly in Chile was considered and rejected by the political parties arguably because they preferred to secure their seats by using an electoral system that resembled the districts and the formula that is applicable to elect the lower chamber of congress. However, Gargarella’s criticism can also assume that the problems of the referendum as an electoral extortion are independent. If this is the case (and this is a big “if”), then he can endorse the work of the Constitutional Convention—he called to vote in favor of the Approval, after all—even if he had made some targeted criticisms against the content of the proposal. The idea of Gargarella rejecting the referendum as a mechanism in the context of the larger Chilean constitution-making process may open the question of finding counterfactual scenarios: what would have happened if the Convention’s proposal was not going to be evaluated by the voters in a final and exit referendum? 

If one is to take Gargarella’s criticism seriously, the answer to this question is important for a non-ideal approach to the Chilean process. To be sure, I am not arguing that Gargarella’s suggestion of the Chilean referendum as being an electoral extorsion is necessarily wrong, but I do think that, given the design of the Chilean constitution-making process, the exit referendum contributed to softening the extorsion rather than producing it. The problem with the constitutional proposal was the unrepresentativeness of the Constitutional Convention—the organ that proposed the unpopular document—and not the referendum (I have explained this point here). If anything, the existence of the referendum served as a useful—though insufficient—mechanism of deterrence that reminded the members of the Convention that they should not stray too far from the preferences of the majority. As Chileans had the final veto power, members of the Convention needed to balance the need to advance their own agendas with the more pragmatic goal of having their proposal approved. By trying to align the preferences of the Convention with the preferences of the median voter, the referendum served as a democracy-enhancing instrument that partly—and insufficiently—tempered the more radical approaches that also existed in the Convention.

In any counterfactual scenario removing the exit referendum from the Chilean process and considering everything else equal, Chileans would be worse off. First, the proposal could have been approved. Imagine the problems of enacting a constitution that only a slight majority—or even a minority—of the population shares: strong incentives to reject the rules of the democratic game, permanent pressure for constitutional amendments or replacements, hardball-types of claims asking for judicial reinterpretation of critical constitutional norms and years of uncertainty. Chileans are divided today about their constitution, but they still hope that politicians can agree on a feasible and reasonable constitutional replacement. If the outcome of the exit referendum had been different, that hope would have probably disappeared. 

Second, had the exit referendum not existed, but the rest of the process was maintained, it is plausible to think that some norms and political practices would have changed. Perhaps the most important example was the agreement that the parties of the incumbent government led by President Boric offered in case the Approval vote won (“apruebo con reformas”). If approved, they promised to amend the constitution to clarify or explain that the proposal was not as radical as the critics had suggested, thus lowering the costs of voting in favor of the constitutional proposal and trying to align the proposal’s content with the preferences of the voters. This agreement was the parties’ response to the polls that showed that the Rejection vote was probably going to win. In the agreement, they tempered the idea of the plurinational state and of legal pluralism—which did not rank well in the polls—, they clarified that the private sector was going to play a meaningful role in the implementation of the rights to healthcare, education, and social security—polls had suggested that Chileans appreciate their right to choose the provider—and they promoted the re-establishment of the state of emergency—which the proposal had removed but that was necessary for using the armed forces to engage with the security issues of the Araucanía region, among other examples. 

Another example was the Convention’s rejection of a set of proposals prepared by the Convention’s Committee on the Environment, Rights of Nature, Common Natural Goods and Economic Model, which was considered too radical even by progressive standards. Members of the Socialist group voted along with the center-left and rightwing constitution makers, and were accused of betraying a previous political agreement with the members of the more radical leftwing groups. One of the Socialists explained that the proposal did not fulfill the “standard that we need to offer to Chile.” The Committee had gone too far arguably because there were no influential moderates as members of that body—see an explanation on the radical impulses of this Committee here. Another example is the inclusion of a norm that provided that the right to interrupt the pregnancy could be regulated and detailed by future legislators. This was an attempt at responding to those that complained that the Convention was going to approve an unlimited right to abortion. The addition of the reference to the legislator was aimed at clarifying for the large majority of Chileans—who tend to be more conservative than the Convention on this issue—that the norm was not as radical as the critics had suggested.

Finally, we can discuss whether the idea of holding “intermediate referendums” to vote on specific proposals (that did not achieve the required two-thirds majority) would have been more appealing. The majority of the Convention members wanted to hold those referendums yet, since the idea violated the constitution-making process, constitution makers had to show that they were not going to circumvent procedural rules. Thus, they agreed to ask Congress to pass a constitutional amendment to authorize those “intermediate referendums.” Congress never passed the amendment, and the referendums never took place. As many criticisms against the process were gathered around the idea that a majority of the Convention members did not care about the procedural rules—and some members of the minority were trying to gather enough signatures to file a complaint before the Supreme Court—asking permission from Congress made sense. Had the exit referendum not existed, the majority of the Convention members would have had fewer incentives to show how they were respecting the rules. They had indeed used the narrative of constituent power to create some degree of uncertainty about the process (see this), but there was a limit to that opportunistic behavior because citizens were watching and citizens mattered because of the exit referendum. The main problem of the intermediate referendums is that they were a terrible idea for a consensus-building process, as it would have elevated the moral hazard of those that could gather smaller majorities while getting even farther away from the preferences of the median voter—remember that the Convention was politically unbalanced—and harmed the possibility of achieving compromises amongst rival views. There were other criticisms—e.g., they risked producing an inconsistent document—but the main issue was the possibility of encouraging opportunistic behaviors that could condition the constitutional negotiations.

Had the exit referendum not taken place, it is plausible that these practices and proposals would have ended in a different way. The commitment of the leftwing parties would not have happened, there would have been less pressure to reject the proposals from the Convention’s Committee and to add the clause that delegated the detailing of the right to abortion to future legislators. If this is true—we can’t, of course, prove the counterfactual—then the referendum also influenced the constitutional deliberations in a way that attempted to moderate a politically unbalanced Convention to reflect more the preferences of the voters. 

Leah Trueblood was perhaps correct in suggesting that referendums are better used when we consider them to be a check against political power instead of the treating them as substituting representatives. The citizens checked the product of a politically unbalanced Convention they disagreed with. But, as I have shown, the democratic virtue that a referendum in those conditions may have does not need to end there. If the referendum succeeded in preventing the Convention from straying too far from the citizens’ preferences, then the referendum can be considered as a mechanism aimed at encouraging the approval of a more popularly accepted constitutional proposal. And that is no minor thing for a democratic instrument to achieve. Even if the referendum was not enough to secure this because of how unbalanced the Convention was, the moderating effect that it produced within the Convention and in the leaders of the “Approval” campaign is sufficient to claim that there is another democratic virtue that scholars looking at the lessons of the Chilean case should take into account. But we can only assess this lesson if we look at the process in a more holistic way. The referendum was not an isolated event that took place in a way that was independent from the other stages of the process. Any lesson we discuss should account for that. Of course, this fact does not say anything about how future referendums should be organized elsewhere, as Gargarella’s worst fears might be true in different conditions. Nevertheless, the Chilean case shows that those conditions are more unlikely in cases of confirming referendums taking place in electorally fair conditions when treating the citizens as a check to political power.

Sergio Verdugo is an Assistant Professor at IE University – Law School, Madrid

Suggested Citation: Sergio Verdugo, ‘On the Democratic (but Limited) Virtues of the Chilean Exit Referendum’, IACL-AIDC Blog (4 October 2022) https://blog-iacl-aidc.org/new-blog-3/2022/10/4/on-the-democratic-but-limited-virtues-of-the-chilean-exit-referendum.