Ireland has some of the world’s toughest referendum campaign restrictions

The law of unintended consequences will play an important role in the current referendum debate.

Despite our brightest minds having created a legal framework on how referendum campaigns should be conducted and covered by the media, political actions will always have unanticipated outcomes.

Increasing numbers of referendums globally have been met with legal restrictions couched in terms of the benefits of regulated equality versus maximal democratic freedoms.

In Ireland, thanks largely to Supreme Court decisions and Broadcast Authority of Ireland (BAI) regulations, we tend heavily towards regulated equality. Research on campaign regulations conducted by Theresa Reidy of UCC and myself, found that Ireland has some of the most substantial campaign participation restrictions globally.

Many of us agree with the principles. Who can argue with fairness, objectivity and impartiality? After all, with something as important as our Constitution, we need substantial safeguards.

But referendums suffer from three serious flaws. They are, by definition, an aid to majority rule and give little succour to minority rights. They are susceptible to soundbite and adversarial politics and hence oversimplification. They risk being about something other than what is on the ballot, such as punishing incumbent political parties.

Relevant legal judgments include Coughlan, which ensures both sides in a referendum debate receive 50 per cent of broadcast time overall, and McKenna, which ensures the government cannot spend public money on any one side.

These are restrictions based on sound democratic principles and are worth having even though at the upper end of the scale globally. However, they do not guard against the problems inherent in campaigns.

For that, the BAI produces guidelines relevant for our broadcasters. They emphasise equality and fairness and that debate should not be purely adversarial, although the latter is difficult to achieve in practice.

We need vigorous campaigns, based on facts that offer voters sufficient knowledge and motivation to both vote and decide how to vote. But these are not the kind of campaigns that we often get where false information, claim/counter-claim and hyperbole predominate.

Decisions

We know from academic research that Irish voters in referendums tend to make their decisions on the basis of shortcuts, by paying attention to the media and ultimately on what they think they know. All are, of course, interlinked. The big question is: who are you going to trust? In a world where we are time poor we tend to outsource our decisions to those we trust, perhaps a family member or friend, but often an expert or an institution such as the church or a trade union.

We know that few trust politicians, and only a few more the media, so the potential impact from campaigning groups here can be significant. Already, we can see opposing sides trying to tap into this, on the one hand in the information being disseminated at some church gates and, on the other, the TCD student union campaign to “phone your granny”. These campaigns are unregulated both in terms of how much material they put out and whether they have any basis in fact or, simply appeal to the emotions.

In terms of the broadcast media, the Coughlan judgment is crucial. In some referendums on areas of little dispute, this can mean that broadcasters have to rely on a very small pool of panellists arguing for one side which, in itself, may dampen the amount of time they choose to spend on an issue. However, importantly, the judgment does not specify the content of each side’s arguments.

As my DCU colleague Roderic O’Gorman argues, it does not mean that broadcasters cannot challenge blatant inaccuracies from either side.

Yet, at times, they appear overly reluctant to challenge campaigners on the substance of debate, and hence, misinformation can be propagated which is not in the democratic or public interest, and in effect undermines the normative reason behind the regulations. Given free reign, campaigners may well try to focus debate on irrelevant but emotive issues.

The widely expected Supreme Court decision on the Jordan appeal to the children's rights referendum should help in this regard as it is expected to enshrine the necessity of putting children's rights first in the Constitution, eliminating one canard. It and the McCrystal decision also guarantee that all Government monies will be channelled through the Referendum Commission.

Engagement

The other issue with a relative lack of engagement is that it tends to diminish turnout, which is inimical to the democratic norms that increased regulation is assumed to bring.

If people do not engage with the topic they are unlikely to vote. And if they do vote, but are confused, they are more likely to have a bias towards the status quo.

In other words, if the status quo is not too problematic, even if it is less than ideal, why risk a change to an uncertain future? This tendency incentivises campaigners on the side of the status quo to attempt to confuse matters and confound the issue. To muddy the waters, if you will.

Three useful things broadcasters and journalists could do in the coming weeks are: to face down blatant untruths or scaremongering; to highlight any attempts to make this a vote about something else; and to encourage people to get out and vote. All of which is in keeping with both the spirit and the letter of referendum regulation.

Dr Jane Suiter is a political scientist and lecturer in the school of communications at Dublin City University. She has published widely on referendum campaigns and regulations.