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Essentially, the "Federal Act on Political Rights" (Bundesgesetz über die politischen Rechte, BPR) regulates the normative requirements for the Federal Council's information policy in referendum campaigns, which also includes the explanatory statement on the referendum.
"Art. 10a20 Information for voters
1 The Federal Council continuously informs the electorate about the federal voting proposals.
2 In doing so, it shall observe the principles of completeness, objectivity, transparency and proportionality.
3 It sets out the main positions taken in the parliamentary decision-making process.
4 It does not represent a voting recommendation that deviates from the position of the Federal Assembly.
Art. 11 Voting proposal, ballot papers and explanations21
2 The voting proposal shall be accompanied by a brief, factual explanation by the Federal Council, which shall also take into account the views of significant minorities. The voting proposal must contain the wording of the questions asked on the ballot paper. For popular initiatives and referendums, the author committees shall communicate their arguments to the Federal Council; the latter shall take them into account in its explanatory statement on the vote. The Federal Council may amend or reject statements that are defamatory, blatantly untruthful or too long. References to electronic sources may only be included in the explanatory statement on the vote if the originator of the references declares in writing that these sources do not contain any unlawful content and do not lead to electronic publications of unlawful content."
Referendum or initiative committees, the so-called author committees, may, on the basis of the "Federal Act on Political Rights", set out their position in the explanatory memorandum to the referendum, the so-called referendum booklet. The statement of the authors' committees is regulated in terms of quantity (2500 characters, approx. one and a half A5 pages) and content. This structurally disadvantages the statement of the authors' committees and violates the principle of "proportionality" and "objectivity" in informing voters.
The basic prerequisite of democratic processes is to guarantee the free and undistorted formation of opinion. This is the responsibility of the responsible citizen, especially in referendums. If the opinion-forming of the voting population is influenced one-sidedly by a central and official means of information, there is a fundamental democratic theoretical grievance.
The explanatory notes on the referendum on the Covid 19 law were a particularly blatant example of incomplete and manipulative information. The voters were not informed that the law had already been extended in two sessions with serious amendments. Although the amendments to the law were not the direct subject of the referendum proposal, a "no" vote would have rejected the Covid 19 law with all its amendments. This decisive information was deliberately withheld from the voters. If the Federal Council provides false information about the scope of the bill, it violates its duty to provide objective information,2 which federal law has also held in its jurisprudence.3
But it was not the only non-information. The sovereign was also not informed about the fact that the basic architecture of the law would remain in force for ten years longer. Most voters mistakenly believed that the law would end in 2021.
In view of these information gaps, which were essential for the vote, and in view of the fact that the legislator, i.e. the parliament, ignored the requirement of "unity of matter" when drafting the law - as is obligatory for initiatives - and in view of the late voting date due to the urgent decision of the parliament, the voting proposal was extremely confusing and unclear for the voters. The right to complete and transparent information was massively violated. During the referendum campaign, it was up to the referendum committee to correct the incomplete and manipulative explanations of the Federal Council and to fight against this disinformation policy.
2 Swiss Federal Constitutional Law, 10th edition, p. 440
3 "In the sense of a certain completeness, however, the requirement of objectivity dictates that important elements for the decision of the voter be suppressed in the explanatory statement, that facts important for the formation of opinion be concealed or that arguments of opposing referendum or initiative committees be misrepresented". (BGE 139 I 2 E. 6.2, Commune of Freienbach)
Even in the digital age, the voting booklet plays a decisive role in the referendum campaign, as it is appreciated by the population despite various information possibilities of the sovereign and is widely used as teaching material in political education in educational institutions.4
This source of information must be placed in the context of all information possibilities of the Federal Council with the support of its "communication experts" in order to realistically weight the power imbalance between the executive, i.e. the Federal Council, plus the Federal Administration with hundreds of so-called communication experts and the author committees. Other official information channels are only listed here in summary form: Explanatory videos on youtube, dossiers on admin.ch, press releases, Twitter appearance of the Federal Council spokesperson, press conferences, participation in panel discussions, to mention only the best known. Through these information channels, the Federal Council's statements are usually transferred unfiltered by the media to the general public.
4 The circulation of the voting booklet is 6 million copies. The VOX analysis of June 2021 also shows that over 80% of the voters use the explanations of vote.
The explanatory statement on the vote is usually prepared by a working group chaired by the Federal Chancellor with representatives of the relevant departments and specialists from the Federal Chancellery. As a rule, a draft that has been revised twice is submitted to the Federal Council. After an initial discussion, a possibly revised version is formally adopted by the Federal Council. The Voting Booklet is thus understood as an "acte de gouvernement" and is therefore not subject to appeal.
The structure of the voting booklet is prescribed by the Federal Chancellery. The initiative or referendum committee is allowed about one and a half A5 pages. As a rule, the political statement of the Federal Council and the parliament is about the same length. However, the Federal Council's position is also included on approximately four A5 pages in the presentation of the referendum bill by setting priorities, additional explanations and comments.
On 1 June 2005, the Swiss population (turnout = 39.51%) clearly rejected this popular initiative with a No vote of 75.2%. The following amendment to the BV was proposed:
"The initiative demands an amendment to Article 34 of the Federal Constitution on the guarantee of political rights. The information activities of the Federal Council and the Federal Administration before votes are to be prohibited, with a few exceptions. The following measures are proposed:
- Prohibition of information and propaganda activities for the Federal Council, the top cadres of the Federal Administration and the federal offices in the run-up to votes. A one-off brief information to the population by the head of the department responsible remains permissible.
- Prohibition of the financing, implementation and support of information and voting campaigns as well as the production, publication and financing of information and propaganda material by all federal authorities in the run-up to votes. The exception is a factual brochure containing the Federal Council's explanations to those entitled to vote, which must give balanced consideration to the arguments in favour and those against.
- Requirement for the Confederation, cantons and communes to publish voting dates at least six months in advance.
- Requirement for the Confederation, cantons and communes to make the voting documents available to voters free of charge together with the applicable legal bases.
- The legislature shall order sanctions for the violation of political rights within two years of the adoption of the initiative."5
The initiative demanded that the Federal Council and the Federal Administration be allowed to use only the voting booklet as an official source of information. According to the initiators, this must be balanced and factual. The explanatory notes on the vote would be permitted in accordance with Art. 11a CPD. The initiative committee did not make any further demands on the voting booklet. It goes without saying that the Federal Council and the Federal Assembly had recommended that the initiative be rejected. If this initiative were to be put to the vote today, the result would most likely be different.
5 From the "Message on the popular initiative "People's sovereignty instead of propaganda by the authorities" of 29 June 2005", p. 4374
It is one of the core constitutional tasks of Parliament to control the work of the Federal Council. Art. 169 of the Federal Constitution requires that the National Council and the Council of States exercise supreme supervision over the Federal Council and the Federal Administration.6 In the past, for example, there were only very isolated parliamentary initiatives criticising the Federal Council's information policy in the run-up to federal votes. Since the effect achieved tended towards zero, the Federal Assembly must be accused of neglecting its constitutional mandate in this area.
6 See also Art. 26 "Federal Act on the Federal Assembly": https://www.fedlex.admin.ch/eli/cc/2003/510/de#art_26
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