—David Landau, Florida State University College of Law[1]
On September 4, 2022, after a two month campaign, voters headed to the polls and rejected the draft Chilean constitution by an overwhelming margin – 62 to 38 percent. With mandatory voting in effect for the first time in recent years, turnout was extremely high. About 13 million of the country’s roughly 15 million registered voters turned out, and the “no” vote prevailed in all but 8 of the country’s 346 electoral districts.
Since the reject option had been polling above approve for months, the result was not particularly surprising. But the substantial margin was surprising, and significantly above what most polls had shown. In comparative terms as well, the result is striking, since according to work by Zachary Elkins and Alex Hudson, the yes vote has prevailed in 94 percent of these kinds of post-constitution making exit referendums held around the world. The outcome in Chile thus requires explanation. This is particularly true since it followed massive social protests in 2019 leading to a call for a Constitutional Convention, an 80 percent majority in a 2020 entry referendum calling for scrapping the Pinochet-era 1980 constitution, and the one-year work of a popularly-elected Constitutional Convention.
What went wrong, and what can we learn from it? In general, and acknowledging that we may not yet have the data to provide full explanations, analysts have suggested several different classes of argument.
A first and perhaps most important focuses on the structural composition of the Convention itself. At the moment the elections were held, following on the heels of the popular protest movements, the right was delegitimized in the eyes of many in the population, and it fared quite poorly in the Convention elections, winning well under the 1/3 of seats that it would need to veto proposals. Elements in the center and even center-left in Chilean politics, such as the Christian Democratic party, also won few seats. Careful empirical work has shown that the swing seat in the Convention, even with a requirement that articles be approved by two-thirds of all members, was far to the ideological left of the swing seat in the Chilean Congress.
Moreover, the special electoral rules for the Convention allowed independents to run on their own lists, and a very large number of independents were elected to the Convention. While a clear majority of all Convention members elected were technically independents, a smaller but still very large number – perhaps around one-third – were what one might call “true” independents with no clear party relationship. Most Convention members also had little or no prior political experience.
These two factors – the ideological tilt of the Convention and its heavy composition of independents – had interlocking effects. The pro-independent electoral rules likely contributed to the ideological skew, since voters could not use party labels as readily to assess ideology. And within the Convention, the composition of the Convention accentuated that skew. Because very left-wing independents won so many seats while the right (and even center) were such small political forces, the relatively cohesive center-left to left-wing parties (such as the Socialists and the Frente Amplio) had little choice but to bargain with the often strikingly left-wing independents, and to essentially abandon negotiations with the center-right and center. In many cases, this was the only feasible way to produce provisions that would receive the two-thirds majority needed to approve norms under the constitutional rules. This dynamic resulted in a constitutional draft where major political forces representing a large fraction of Chilean politics had little role in shaping the outcome, belying the suggestions of scholars such as Horowitz and Negretto for an inclusive constitution-making process where decisions are made by relative consensus. There seems to be little question that these dynamics played a major role in the defeat of the draft in the exit referendum.
Second, analysts have pointed to the design of the process as a possible problem. At the macro-level, Gargarella and some others have questioned the wisdom of even having an exit referendum, which produced a highly politicized campaign linked to the incumbent presidential administration and raised the risks of failure. At the more micro-level, some have suggested that the internal rules of the Convention may have proven problematic, whether driven by an allegedly excessively high degree of transparency, or a relatively rigid set of rules that allowed proposals to be considered by the plenary only twice before they were decisively defeated and could not easily be revived.
Third, much analysis has also pointed to the substance of the draft itself. While it is doubtful that many voters actually read much of the lengthy text, the concepts that were broadly circulated seem to have raised significant concerns and doubts among voters. This seems true despite the fact, as I have argued elsewhere on this blog, that the text largely reflected broader trends in regional and global constitutionalism. Polling is ongoing, and we are not yet close to having all the answers. But the Convention may in some cases have engaged in unnecesary changes that raised questions of stability and continuity with some voters, such as eliminating the Senate but replacing it with a similar but slightly asymmetric body called the Chamber of Regions. Those kinds of moves signalled a sharp break with constitutional tradition, perhaps unnecessarily.
Some changes may have been perceived as going too far by some key groups of voters. The text’s centering of a plurinational state and some other provisions dealing with the rights of Chile’s original peoples’ received significant attention, and it is striking that the draft was rejected by wide margins in many of Chile’s most heavily indigenous districts. Some analysis also suggests that a provision providing for legalization of abortion (with regulation by law), which was the subject of much discussion, ambiguity, and misinformation, may have played a “single issue” role in voting decisions among some key groups of voters.
More broadly, for some voters there may have been a perception that the draft did not do enough to respond to the concrete grievances expressed in the 2019 protests. While the draft contained a much more robust, justiciable, and detailed set of social rights than the 1980 constitution, these were often overshadowed by other issues. And the reject campaign successfully raised doubts about many of these provisions, suggesting that they might raise significant fiscal concerns for the state or the current entitlements and property interests of Chilean voters. In a fascinating dynamic, what should have been a strong selling point of the draft – its social rights – seem to have been transmuted into something of a liability during the campaign.
This brings us to a fourth and final set of issues raised by some analysts – the challenging media and social media ecosystem in which the campaign was conducted. Longstanding work in Chile has suggested a right-wing bias in major domestic media interests. Without question, domestic media played a key role in amplifying scandals and missteps during the Convention (such as the resignation of one of its members after he was caught lying about a cancer diagnosis), and also in giving high levels of publicity to extreme proposals that had no chance of being adopted by the plenary. The social media campaign also seemed dominated by high levels of misinformation and disinformation. These problems are far from unique to Chile – many of them are now-familiar from political campaigns around the world. But they do highlight the challenges of popular constitution-making today.
We have asked a distinguished group of close observers of the process to comment on the causes of the referendum failure, in order to understand these factors and to draw out possible lessons for other constitution-making processes. But beyond understanding the cause of the reject vote’s triumph in the referendum, we have also suggested that contributors may want to shed light on two additional issues.
The first (and perhaps most difficult to see and appreciate right now) is the ways in which the process nonetheless represented an advance that deserves to be studied and emulated, despite the referendum failure. There are elements of the draft text – such as a broad provision for gender parity in political institutions – that will likely be picked up by a final Chilean text in some form, and will also probably prove influential in other countries in the region and around the world. Key aspects of the process, especially the fact that the existing constitutional text was reformed to carefully regulate the Constitutional Convention’s composition and voting rules, may also set a significant example for future processes in the region.
The second of course is what’s next. For the Chilean process does not appear to be over, and despite the reject vote a broad swath of political actors (including, with considerable ambivalence and vaccilation, the center-right) are negotiating to continue the process with some type of second Convention, although key details have not yet been nailed down. The shadow of the initial 2020 “entry” referendum, where voters overwhelmingly demonstrated an intent to scrap the 1980 text, may still be casting a long shadow, contributing to the sociological death of the Pinochet constitution. So the Chilean process may yet conclude with a new constitution, perhaps one that reflects a broader social and political consensus than either the 1980 constitution or the rejected draft text. Indeed, the ongoing, dynamic nature of the Chilean process may make the lessons of the September 4 referendum all the more urgent.
Suggested citation: David Landau, Introduction: Symposium on the Chilean Constitutional Referendum, Int’l J. Const. L. Blog, Sept. 23, 2022, at: http://www.iconnectblog.com/2022/09/introduction-symposium-on-the-chilean-constitutional-referendum/
[1] Thanks to all of the ICONnect editors for their assistance in organizing this symposium. Particular thanks to Antonia Baraggia, who came up with the idea for this symposium and played the leading role in organizing and developing it.
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