Compulsory voting, political legitimacy and public reason in Australian democracy

Matteo Bonotti

Compulsory voting, political legitimacy and public reason in Australian democracy (PDF 182KB)

This paper was presented as part of the Senate Lecture Series on 26 July 2024.

Introduction

Compulsory voting is currently adopted in around 20 to 30 countries around the world.¹ In Australia, it was introduced at the federal level in 1924 and employed for the first time in a national election in 1925, having been previously already adopted in Queensland in 1915. Following its introduction at the federal level, compulsory voting was gradually also adopted within all the other subnational jurisdictions. This paper focuses on compulsory voting in Australia. However, it does not engage with the history of compulsory voting or the specific political dynamics that led to its adoption and which have contributed to its continuous use up to this day. Instead, it focuses on the justification for compulsory voting, offering a novel perspective on why compulsory voting is desirable, and why, more specifically, it is beneficial to Australian democracy given the latter’s distinctive features.

Justifying compulsory voting is, of course, not a new endeavour. There are already a number of arguments in political theory that support this practice, with 3 of them being particularly prominent in the literature. Perhaps the most influential one is the idea that compulsory voting contributes to greater democratic representativeness.² This argument starts from the assumption that turnout under voluntary voting is normally lower among members of more disadvantaged groups (in terms of class, ethnicity, gender, etc.). Therefore, compulsory voting is considered important and valuable by many precisely because it helps to ensure the members of disadvantaged groups vote and, therefore, that their voices are heard during the democratic process. A second important argument is that compulsory voting facilitates coordination among like-minded citizens.³ When voting is voluntary—the argument goes—people who believe in the same values or who have similar interests may often be unable to coordinate and ensure that they all vote in order to advance their interests. This is more likely to occur, once again, among members of disadvantaged groups. Indeed, members of privileged groups normally possess the financial resources and networks that enable them to coordinate and mobilise, and thus influence politicians (for example, through lobbies or other channels). Members of disadvantaged groups are instead less likely to possess these resources, and therefore often lack the ability to coordinate and mobilise, resulting in many of them deciding not to vote. Compulsory voting helps address this dilemma, by providing all citizens with the assurance that like-minded citizens will also vote, thus resolving the coordination problem. Finally, a third influential argument is centred around the idea of fairness.⁴ According to this argument, not voting (which is an option under voluntary systems) is unfair. When our fellow citizens make the effort to vote in order to sustain democratic institutions, we treat them unfairly if we decide not to vote, de facto acting as free riders. Once again, compulsory voting helps to address this problem, by ensuring that people do not act in an unfair way towards their fellow citizens.

This paper, drawn from a longer piece in an edited collection on compulsory voting,⁵ defends a different argument. It is based on the idea of public reason, which is a very influential idea in political theory, a branch of political science. The paper first introduces the concept of public reason to explain why it is important for the political legitimacy of laws and policies in a liberal democracy. It then argues that in parliamentary democracies like Australia, compulsory voting is crucial for the promotion of public reason, and that it can therefore contribute to the political legitimacy of political rules. In defending this argument, the paper relates the idea of public reason to the aforementioned democratic representativeness, coordination and fairness arguments. Finally, the paper zooms in on the relationship between compulsory voting and public reason by unpacking the mechanisms through which the former can contribute to the latter.

What is public reason?

The idea of public reason was first introduced by John Rawls, arguably the most important political theorist of the 20th century.⁶ According to Rawls and other defenders of public reason (who normally call themselves ‘political liberals’), laws and policies can only be politically legitimate in a diverse society if they are publicly justified by those who promote and implement them, rather than simply being imposed upon citizens through coercion. Majority rule, however, is not sufficient to guarantee public justification. Instead, those who defend and wish to implement laws and policies—especially politicians and public officials—should provide arguments for those measures, for example in parliament or during electoral campaigns. Crucially, such arguments should appeal to the public good of all citizens rather than to the sectarian interests of a specific party or faction. For example, a politician should not defend a tax cut because this measure benefits them, their family or a specific interest group but should rather aim to explain in what ways—if any—the tax cut benefits society as a whole, for example, by improving economic growth, which will benefit all members of the political community. Vice versa, a politician who defends tax increases for the wealthy should not do so based on the idea that this measure will benefit them or members of certain social groups. Instead, public reason demands that the justification for the policy should appeal to the well-being of the whole political community, for example, the view that more taxes allow the state to provide more social services, and these ultimately benefit all citizens in some way.

In summary, public reason demands that there should always be an effort to formulate the justification for policies and laws by appealing to the public good, or what Rawls and other political liberals call ‘public reasons’. These kinds of reason relate to widely endorsed values such as individual rights and liberties, or equality of opportunity.⁷ These are values which all citizens arguably endorse, regardless of their political convictions and personal preferences. By appealing to these and similar values when justifying their proposed laws and policies, citizens (and especially politicians and public officials) display their commitment to the public good. Furthermore, public reasons also include scientific evidence. That is, we expect laws and policies to be justified based not only on widely shared values but also on scientific evidence—laws and policies grounded in false information and incorrect facts are unjustified and, therefore, politically illegitimate.

One of the key implications of public reason is that citizens, and especially politicians and public officials, should not justify laws and policies by appealing to controversial values or doctrines. Imagine, for example, a politician defending the implementation of a specific law based on Catholicism or Islam. In liberal democratic societies like Australia, there are citizens who endorse these religious doctrines but also, crucially, citizens who follow other religions or no religion at all. It would therefore be unfair to impose upon all citizens laws and policies based on religious views that most of them reject. More specifically, defenders of public reason argue, doing so would imply failing to treat one’s fellow citizens as free and equal persons. This is because, according to political liberalism, there is a presumption in favour of freedom which applies equally to all citizens: all citizens, that is, are naturally free from others’ authority, therefore any law or policy imposed upon them is a limitation of that freedom which requires a justification, more specifically a public reason.⁸

The idea of public reason, however, is not without critics. Indeed, some argue, asking all citizens to refrain from appealing to their controversial values and doctrines when justifying laws and policies—what is often referred to as the direct model of public reason⁹—is very demanding. For example, asking religious citizens not to appeal to their religious beliefs when they defend their policy positions or when they explain why they voted for a certain party or candidate would be very limiting in a liberal democracy. According to some, it would almost undermine religious people’s integrity, by asking them to separate their private selves from their public selves, so to speak. In response to this very common critique, a second indirect understanding of the implications of public reason focuses more on politicians and public officials, rather than on citizens generally. According to this interpretation of public reason, ordinary citizens should be free to use whichever arguments they want to use to justify their political positions whereas politicians and public officials (especially elected representatives) should use public reasons to justify the policies and laws they defend in parliament or other institutional forums.¹⁰ For example, if constituents support a certain law because of some religious or other controversial reason, it is the duty of their representatives (that is, of their members of parliament (MPs) to reformulate the justification for the policy in a way that appeals to the public good— for instance, by translating non-public justifications like ‘this is good for those who live in this area’ or ‘this is good for members of a certain religious group’ into public justifications such as ‘this is good for Australia as a whole because of reasons x, y and z’, where x, y and z should be public reasons. This is a more persuasive and inclusive approach to public reason. One of its key implications is that institutions in a society should be designed in a way that encourages this way of thinking. Indeed politicians, like any human beings, have flaws and may sometimes not feel incentivised to think and justify their preferred policies in terms of public reasons. Therefore, we should try to design institutions in a way that encourages them to do so. This paper argues that compulsory voting should be central to that institutional set-up.

Understanding Australian democracy

In order to fully understand the link between public reason and compulsory voting, however, it is necessary to understand first what kind of democracy Australia is. Here Rawls’s work is once again useful. According to him, we can identify 2 main models of liberal democracy: what he calls ‘constitutional democracies’, on the one hand, and what he refers to as ‘parliamentary supremacy democracies’, on the other hand.¹¹ Constitutional democracies, Rawls argues, include countries like the United States, where there is a separation of powers and a very strong constitutional court (the Supreme Court), which has the duty to protect citizens’ individual rights and liberties, and ensure that they are not violated by majoritarian decisions. ‘[C]onstitutional democracy’, Rawls points out:

is dualist: it distinguishes constituent power from ordinary power as well as the higher law of the people [which is embodied in the constitution] from the ordinary law of legislative bodies. Parliamentary supremacy is rejected.¹²

The central role played by constitutional courts in constitutional democracies is particularly evident in Rawls’s analysis. Indeed, according to him, the Supreme Court represents the ‘exemplar of public reason’¹³ since, when scrutinising a law in view of constitutional principles, ‘by applying public reason the court is to prevent that law from being eroded by the legislation of transient majorities, or more likely, by organised and well-situated narrow interests skilled at getting their way’.¹⁴ This is a very important point. The Supreme Court helps to protect not only citizens’ rights and liberties but also public reason, by ensuring that political rules are publicly justified. Consider, for example, the ‘Lemon test’, which the Supreme Court employs in order to evaluate the compliance of laws and policies with the Establishment Clause of the First Amendment. The test demands that laws and policies should have a secular rationale, should not advance or undermine religion, and should not involve government involvement in religious matters.¹⁵

Australia, however, is different and falls under the parliamentary supremacy democracy category. According to Rawls, this kind of regime is grounded in the view that ‘parliamentary supremacy with no bill of rights at all is superior to our [that is, the US] dualist regime. It offers firmer support for the values that higher law in the dualist scheme tries to secure’.¹⁶ In this kind of democracy, the protection of individual rights and liberties is not (or, at least, not mainly) guaranteed by a constitutional court but by democratic monitoring. In other words, it is the democratic system, and especially the parliament, that has the task of protecting citizens’ rights and liberties. This understanding of Australian democracy is widely endorsed. Consider, for example, the following statement by Lisa Hill, an influential scholar of compulsory voting:

The absence of entrenched rights in the Australian Constitution reflected a belief on the part of the framers that the law produced by a popularly elected parliament was the best safeguard of rights.¹⁷

Likewise, according to Haig Patapan:

[t]he absence of entrenched Bills of Rights and rights-based limitations on the exercise of power would seem to suggest that the colonists were unconcerned with the protection of civil liberties. In fact, the common law was regarded as one of the most important measures for the protection of immemorial rights and liberties. Though common law rights were subject to parliamentary control and therefore could be limited for the public good, this was not considered to pose a major threat to liberty because Parliament itself was seen as a manifestation and defence of another form of liberty—the right to be represented and participate, through voting, in the formulation of laws.¹⁸

A similar view can also be found in the words of Edward Mann, a Nationalist member of the Australian House of Representatives who, when supporting the adoption of compulsory voting in the House of Representatives in 1924, claimed: ‘Individual liberty is less likely to be invaded when the legal control is that exercised by the real majority of the people’.¹⁹ To summarise, in Australia the protection of rights and liberties is guaranteed not by a constitutional court that operates alongside—and, somehow, in opposition to—democratic institutions but by the parliament, whose members are democratically elected. This guarantees the democratic monitoring of individual rights and liberties.

Public reason and compulsory voting

The central argument of this paper is based on the understanding of Australian democracy presented in the previous section. More specifically, the argument is that in parliamentary supremacy democracies like Australia, compulsory voting is desirable and citizens have a duty to vote—regardless of which specific reasons they vote based on—in order to contribute to the political and institutional democratic process through which a) their individual rights and liberties are protected and b) public reason is promoted while non-public reasons are excluded from the public justification of laws and policies. Let us unpack this argument.

When all citizens vote, they all contribute to electing their MPs. As previously argued, it is the latter’s task to engage in the process of public reasoning in order to ensure the laws and policies are justified by appealing to public reason and the public good, rather than controversial reasons and sectarian interests. By voting, citizens enable this system to function and to filter out non-public reasons from the process of public justification. How does this work exactly? To answer this question, it is necessary to return to the 3 arguments for compulsory voting briefly discussed in the introduction.

The first argument, recall, was the idea that compulsory voting helps to ensure that a political system is more representative, because when vote is voluntary it is normally members of more disadvantaged groups who do not vote. Compulsory voting therefore ensures that members of these groups do vote, and that their interests and voices are heard during the democratic process. There is evidence that this normally leads to more egalitarian and progressive policies—for example, in Australia there is evidence that the introduction of compulsory voting was soon followed by ‘dramatic increases in pension spending’.²⁰ But what are the implications of the democratic representativeness argument for public reason? When all citizens vote, more voices and interests are represented in parliament, not by citizens directly, of course, but by their representatives. As a result, the latter will be able to act on behalf of their constituents by exercising ‘justificatory pressure’²¹ on other legislators, especially those who are members of a governing majority. More specifically, when members of a governing party (or coalition) defend their proposed laws and policies in parliament, compulsory voting ensures that they will be subject to the opposition, criticisms and challenges of a more diverse range of MPs, who represent a more diverse range of citizens—including members of disadvantaged groups—than under voluntary voting. These challenges and criticisms will often manifest in the form of demands for public reasons.

But there is also a second way in which compulsory voting can contribute to the process of public reasoning. This relates to the second argument for compulsory voting introduced earlier, that is, the coordination argument, according to which compulsory voting helps like‑minded people—particularly, once again, members of disadvantaged groups—to coordinate their mobilization efforts and ensure that their interests are advanced and heard. This coordination can help generate a critical mass of citizens which will be more effective than isolated and uncoordinated individual citizens in influencing representatives, contesting their policy decisions, and demanding public reasons for those policies.

Third, and finally, compulsory voting can also contribute to public reason in a way that relates to the fairness argument. This, recall, was the idea that by not voting a citizen is being unfair towards their fellow citizens and, therefore, that compulsory voting prevents this kind of free riding by compelling all citizens to contribute to the well-being of the democratic system. The implication of the fairness argument for public reason is the following. By voting, citizens contribute to public reasoning by ensuring that there is a representative democratic system in which non-public reasons are filtered out and in which the interests of all citizens are taken into account, since legislators are constantly under justificatory pressure to provide public reasons for their proposed policies. Under voluntary voting, a citizen can free ride on other citizens’ contribution to this process. Compulsory voting prevents this kind of free riding, by ensuring that all citizens participate in the process of public reasoning.

In summary, in countries like Australia characterised by parliamentary supremacy, compulsory voting can play a key role in sustaining the process of public reasoning through which elected representatives provide public justifications for laws and policies, and in ensuring that political decisions take into account the interest and values of a broad variety of citizens. This will result in laws and policies that are more politically legitimate in view of societal diversity.

Compulsory voting, democratic monitoring and accessible reasons

This section of the paper zooms in on the idea that compulsory voting can help citizens to contribute to the process of public reasoning in ways that align with the 3 main arguments for compulsory voting already present in the literature. Compulsory voting encourages greater monitoring (that is, than voluntary voting) of the reasons provided by legislators for their proposed laws and policies. However, what does this mean in practice? Answering this question requires introducing a further aspect of public reason, which has received particular attention in recent years. This aspect concerns the so-called ‘structure’ of public reason.²² Debates regarding the structure of public reason have focused on understanding what, exactly, makes certain reasons ‘public’. Here opinions among scholars of political liberalism are divided and we can identify 3 main positions.

According to the first one, public reasons are reasons which are shared among citizens, in other words reasons that are exactly the same for all citizens.²³ The second position is endorsed by those who believe that public reasons do not need to be shared but only accessible, that is, that they may differ between citizens as long as they are grounded in ‘common evaluative standards’ that all citizens share.²⁴ Such standards may include basic political values (for example, individual rights and liberties) and epistemic standards (for example, guidelines of scientific inquiry) that all citizens of a liberal democracy endorse.²⁵ As long as reasons are based on these standards, they are public even if they vary between different individuals and groups. A third position is that public reason does not require any shared or accessible reasons but only intelligible reasons. These are reasons which different citizens endorse based on their own personal non-shared evaluative standards.²⁶ For example, these may include Catholic reasons for Catholics, Islamic reasons for Muslims, Jewish reasons for Jews, etc. If a law or policy is based on intelligible reasons that members of each of these (and other) groups in society can endorse, then it meets the standards of public reason even in the absence of shared or accessible reasons.

Why does the structure of public reason matter for compulsory voting? For a start, it is important to stress that neither the shareability view nor the intelligibility view offers a persuasive account of public reason.²⁷ The shareability view is clearly too demanding, since in diverse societies like Australia, there are very few (if any) reasons that are shared among all citizens. After all, what kinds of reasons could Catholics, Jews, Muslims, Hindus, Marxists, atheists and libertarians (and others) share? Therefore, based on the shareability view, very few (if any) policies and laws would be justified. Conversely, the intelligibility view is insufficiently demanding, to the extent that it risks rendering the process of public reasoning self-defeating. Indeed, according to this view, most if not all reasons for laws and policies are acceptable. But this also means that most if not all reasons could be used to challenge proposed legislation, thus undermining its public justification and political legitimacy. In this case too, therefore, only a very limited number of laws and policies would be publicly justified. The accessibility view of public reason strikes a balance between these 2 extremes. It does not demand that all citizens share the same reasons but, at the same time, it does require that citizens only appeal to reasons that are based on shared standards. This has a twofold advantage. On the one hand, it helps rule out idiosyncratic controversial reasons from the process of public reasoning, thus preventing those holding such reasons from de facto vetoing political decisions. On the other hand, it still allows members of the public to put forward reasons that may not be shared by their fellow citizens, but which the latter can at least see as grounded in evaluative standards (that is, principles and values) they do share, thus resulting in a kind of second-order consensus.²⁸

Compulsory voting can play a pivotal role under the accessibility view of public reason. First, it can help ensure that the shared evaluative standards underlying public reasons in this conception—for example, basic rights and liberties as well as guidelines of scientific inquiry—are not violated. More specifically, by producing a more diverse legislature, compulsory voting can provide a stronger incentive (that is, than voluntary voting) for political representatives to monitor one another’s compliance with those shared evaluative standards. To put it in simple terms, if a parliament represents, say, 50 social groups instead of 20, there will be greater scrutiny (by the representatives of all those groups) of government legislation and its compliance with accessibility standards. When those standards are violated, there is likely to be criticism of those infringements emerging from a diverse range of legislators (as representatives of a diverse range of societal groups and interests).

Second, it should be reasserted that the accessibility conception of public reason allows a diversity of reasons to enter the process of public justification, as long as they are based on shared evaluative standards. A key way in which reasons may differ among citizens (while being grounded in shared standards) is by drawing on different interpretations of shared political values. For example, different citizens may disagree regarding what equality of opportunity or freedom of religion or freedom of speech (to name only a few shared political values in liberal democratic societies) entails. In the presence of compulsory voting, politicians have stronger incentives than under voluntary voting to be attentive to this diversity of interpretations, including the interpretations ascribable to members of less privileged social groups, which compulsory voting helps include in the democratic process. For instance, citizens may agree that freedom of speech is important but disagree regarding what it involves or requires. Indeed, as Teresa Bejan points out, free speech can be understood either as ‘isegoria … [that is,] … the equal right of citizens to participate in public debate in the democratic assembly…[or as] parrhesia, the license to say what one pleased, how and when one pleased, and to whom’.²⁹ The latter interpretation is likely to entail very limited government interference with what citizens can say and hear, whereas the former may justify the regulation of various forms of expression that can often arguably result in certain individuals and groups being silenced or marginalised in public debate. These may include pornography and hate speech as well as campaign donations to parties and politicians by powerful individuals and corporations. Likewise, in the case of equality of opportunity (another shared political value in liberal democracies),³⁰ diversity of opinions may be even more significant. Citizens may hold different views, for instance, regarding whether equality of opportunity should be purely ‘formal’—that is, entailing ‘careers open to talent’³¹—or ‘fair’,³² which demands that ‘those who have the same level or talent and ability and the same willingness to use these gifts should have the same prospects of success regardless of their social class of origin’.³³ Accessibility allows scope for these and other similar disagreements regarding how shared political values are interpreted. The diversity of views present in the legislature as a result of compulsory voting can help ensure that none of these interpretations is simply dismissed by those in power, perhaps because it threatens their interests. For example, if members of a marginalised social group believe that equality of opportunity should be ‘fair’ rather than ‘formal’, it is more likely under compulsory voting that their interpretation, channelled into parliamentary debates by those legislators who represent their interests, is given a fair hearing during public reasoning, thus exercising justificatory pressure on those in power.

Third, the accessibility view of public reason also implies that different citizens may assign different weight (that is to say, that they may rank in different ways) shared political values. For instance, as Jonathan Quong explains,³⁴ 2 citizens may agree that both religious liberty and non-discrimination in employment are important values in a liberal democratic society but disagree on whether the Catholic Church should be allowed to hire male priests only. In this case, Quong argues, the 2 citizens do not necessarily disagree as to whether religious liberty and non-discrimination in employment should be protected—it can be assumed that both of them consider both values fundamental in a liberal democracy—but only as to whether the former or the latter value should be prioritised. More specifically, if religious liberty is prioritised, the implication is that the Catholic Church should not be compelled by the state to hire female priests. If, however, non-discrimination in employment is assigned greater weight in the ranking, then one might conclude that the state can legitimately force the Catholic Church to employ female priests. Both arguments, Quong argues, are consistent with public reason, as long as both citizens recognise the importance of both of the shared political values involved, and provide ‘a plausible explanation as to why one public value ought to be prioritised over the other’.³⁵ By generating a more diverse legislature than its voluntary counterpart, compulsory voting can therefore help ensure not only that different interpretations of shared basic political values are heard but also that different ways of balancing those (differently interpreted) values are also taken into account during public reasoning among political representatives. When a specific balancing reflects the views of a marginalised group, it is less likely to be dismissed by those in power if there are legislators who speak on behalf of that group—an occurrence that is more likely under compulsory voting than under voluntary voting.

Conclusion

Public reason plays a key role in ensuring that laws and policies in diverse liberal democracies are publicly justified and legitimate. This paper has argued that in parliamentary supremacy democracies like Australia, compulsory voting helps sustain the indirect process of public reasoning through which elected representatives provide public justifications for their proposed laws and policies. More specifically, by producing a more diverse legislature, it puts legislators under a greater pressure to take into account a broad range of societal perspectives, interests and demands, resulting in a more inclusive process of public reasoning and, therefore, in more legitimate laws and policies.