Colombian anti-corruption referendum, August 26 2018

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This Sunday, August 26, the consulta popular anticorrupción (anti-corruption popular consultation/referendum) will be held in Colombia. It consists of seven separate questions.

Boring but important legal background: A 'consulta popular' (popular consultation) is one of the mechanisms of civic participation established by law (Law 1757 of 2015 and Law 130 of 1994T), legally distinct from a referendum or plebiscite. A 'consulta popular' may be held at any level of government (national, departmental, municipal etc.), and it is defined as "a general question on a matter of national, departmental, municipal, district or local importance", which may require legal changes if adopted. A national 'consulta popular' may be held at the initiative of either the president or at least 5% of registered voters (currently equivalent to over 1.8 million voters), subject to approval by the Senate. In contrast, a plebiscite may only be called by the president on a given public policy decision of the executive branch, subject to approval by both houses of Congress. A referendum may be held at any level, at the initiative of the government, local authorities or a given number of citizens to approve or reject any bill or to repeal an existing law or constitutional reform, again subject to approval by Congress (in the form of a law).

Once a 'consulta popular' of popular initiative has gone through all the steps -- verification of signatures submitted by the Registraduría, approval of the promoting committee's financial statements by the CNE, certification issued by the Registraduría and a go-ahead from the Senate -- the President sets the date for the consulta popular by decree. To be adopted, besides an absolute majority of valid votes answering in the affirmative, there is a turnout quorum of at least one-third of voters. The turnout quorums for plebiscites and referendums are different (higher and lower, respectively). The adoption of a decision in a consulta popular is legally binding, and Congress is obligated to adopt the necessary laws needed to make it effective. Congress has one year to do so, if it fails to act within that period, the President adopts the required legal changes by decree.

As you've probably guessed, jumping through all the hoops and hurdles and making it to the finish line is lengthy and difficult for any form of civic participation in Colombia. Indeed, most of them never make it to the end. In fact, this anti-corruption popular consultation is the first national consulta popular to be held (the mechanism was instituted by law in 1994) -- and only the third (legally-recognized) national refernedum/plebiscite/consulta to be held since the adoption of the 1991 Constitution, after the 2003 referendum and 2016 plebiscite.

Since I'm probably the only one who has Strong Opinions on Colombian legal terminology, the terms consulta popular and referendum can probably be used interchangeably.

The story of this consulta popular: Colombia is corrupt, and its politics are particularly dirty. In 2017, it ranked 96th out of 180 in Transparency International's Corruption Perceptions Index -- more corrupt than Uruguay, Chile, Argentina, Costa Rica, Cuba, Guyana, Suriname (what the f?) [as well as the entire EU-28, US/Canada, India and China], tied with Brazil, Panama and Peru but less corrupt than Mexico, the rest of Central America, Ecuador, Bolivia, Paraguay and Venezuela.

Corruption has always been around in Colombian politics, but in the past few years, thanks to many major corruption scandals and growing popular discontent with the political system, corruption has become a major political issue and cause for indignation among the mass public. Although the constitution and laws now provide more and more safeguards against corruption, notably with new and improved requirements for transparency or punishments for corrupt/criminal parties and politicians, many still feel that the current laws are too weak, lax or easily abused and that there needs to be new, much tougher rules to limit corruption and the perceived causes of corruption in public life.

In January 2017, then senator Claudia López (Green) registered a committee to collect signatures to hold an anti-corruption referendum, supported by her partner and then representative Angélica Lozano (Green) and other members of the Green Alliance, including Antonio Navarro, Antonio Sanguino and Ángela María Robledo. In July, they submitted 4,236,681 signatures to the Registraduría, of which 3,092,138 were ruled valid in September -- far and above the 1,762,083 signatures it required. The '4 million signatures' were a major political success for Claudia López and her team, and the consulta popular anticorrupción has become her 'baby' and main political cause; while it wasn't enough to ensure her a presidential candidacy this year, it certainly served as a basis for the very successful senatorial candidacy of her partner (and 'successor' in the Senate), Angélica Lozano.

After that, however, the CNE, because of its usual incompetence, lethargy and political makeup, took its sweet time to revise and approve the financial statements of the committee, which is an obligatory legal step before the Registraduría may certify the signatures. The financial statements were given to the CNE in August 2017, and only in late January 2018, after López and her friends began complaining, did it finally approve the financial statements. This allowed the Registraduría to certify the signatures, allowing the matter to be sent to the Senate. In April 2018, the Senate, following an agreement between Claudia López and the uribistas (senator Paloma Valencia), agreed to postpone consideration of the issue until June so as to not coincide with the first round (in exchange, uribistas agreed to support it). On June 5, 2018, the Senate voted 84-0 to approve the consulta popular. Because it was election time and no politician wanted to be seen voting against 'anti-corruption', even if they don't like it. Even the crooks, criminals, heirs and thieves who aren't generally associated with 'anti-corruption' supported it! The list of those who voted in favour included all four Opción Ciudadana senators (lol), Conservatives like Hernán Andrade, Juan Manuel Corzo, Olga Suárez, Nadia Blel, Yamina Pestana and Samy Merheg, Liberals like Arleth Casado and Mario Fernández, CR folks like Antonio Guerra, Daira Galvis, Bernabé Celis, Arturo Char, Partido de la U people like Eduardo Pulgar, Andrés García, José Name, Mauricio Lizcano and of course the near-entirety of the CD bench (led by Álvaro "mientras no estén en la cárcel" Uribe).
On June 18, President Santos decreed that it would be held on August 26.

The questions: There are seven questions, each to be voted on separately (no option for a straight-ticket yes/no).

Q1: Reduce congressmen and senior public officials' salaries from 40x the monthly minimum wages (currently US$10,510) to 25x the monthly minimum wage (US$6,569). A maximum salary of 25x the monthly minimum wage would be set for senior public officials listed in article 197 of the Constitution -- according to the MOE, 1,803 public servants would see their salaries cut, including ministers, comptroller, inspector general, ombudsman, magistrates of the three highest courts, AG, governors etc.

Colombia is one of the most unequal countries on the planet, but its congressmen earn a fortune (and cost a lot of money). Colombian congressmen rank fourth among their Latin American counterparts in terms of their salaries: Mexican, Chilean and Brazilian congressmen earn even more.

Q2: Full jail terms for everyone convicted of corruption or crimes against the public administration (no possibility for house arrest or other special forms of incarceration), banning them from ever entering into contracts with the state and allowing the state to unilaterally terminate contracts with them without compensation.

Currently, officeholders can serve their jail sentences in special reclusion centres. In addition, even if a contractor is convicted of corruption, he may cede his contract to another contractor and, if the contract is liquidated, the state has to pay a compensation.

Q3:Standardized, uniform bid/tender specifications for all contracts with public entities.

This would impose the use of standardized, uniform bid/tender specifications for all contracts with any public entities, at any level of government. The idea is to reduce the manipulation of contracts, rigged tenders, tailor-made tenders, 'handpicked' bids (bids with only one/abnormally low number of offers).

Q4: Mandatory public consultations in budgetary processes (participatory budgeting), deciding the breakdown and prioritization of investment funds at the national, departmental and municipal level, as well as accountability in their actual use.

Currently, the breakdown and prioritization of public investment budgets are unknown, which allows for the funds to be negotiated and split up in secret meetings and backroom deals with the executive, congressmen and their local allies -- which gave rise to the infamous 'marmalade' under Santos.

Q5: Mandatory, public annual accountability for congressmen and all other members of elected collegial bodies (assemblies, councils etc) on their attendance records, votes, lobbying, private interests managed, public investments managed and public offices for which they have nominated candidates.

Currently, congressmen are under no obligations to publicly report on their work and activities. Only their attendance and votes are made public, although that information is difficult to find online on official websites.

Q6: Tax returns, income, assets, conflicts of interest for all elected officials to be made public, as a condition to assume and hold the office. Possibility to begin criminal proceedings and seizure of assets for elected officials and their potential network of strawmen.

Currently, congressmen must declare their assets and income, but this information is not published.

Q7. Three term limit for Senate, House, assemblies, municipal councils and neighbourhood boards (JALs).

There are no term limits for congressmen or elected members of other collegial bodies. Senator Roberto Gerlein (Conservative), who retired in 2018, served 44 years in the Senate (and 5 years in the House before that).

The campaign: This is the fourth time in six months (since March) that Colombians are being called to the polls, so there is bound to be voter fatigue, particularly in a low-turnout country like Colombia. This means that the real challenge will not be getting yes votes on all questions, but rather to get a third of voters to show up -- that is to say, at least 12,075,756 votes. As things stand, I don't think that it will reach that turnout quorum. The referendum's proponent have set an ambitious target of 15 million votes.

Turnout was high in the 2018 presidential election, 19.6 million voters in the first round, but it was the highest turnout in a national-level election since 1998, so it isn't a turnout level which, for now, we can expect to see replicated in any vote. For comparison, in the 2016 plebiscite, turnout was only 13.06 million (37%); in the 2003 referendum, despite Uribe's active support and promotion, turnout was just below 25% for all but one of the questions (less than 6.3 million).

In the Senate, every party voted in favour of holding the consulta popular, although some did so claiming that they disagreed with its contents but that it should be put to a vote, while others said that they had their doubts but that doing something was better than doing nothing. Since then, several columnists and politicians have come forward to criticize the consulta popular on several grounds: claiming that several questions are unconstitutional, that it is useless in the fight against corruption, that most measures already exist, the high costs of organizing it etc. But these columnists or politicians are mostly speaking to the small circles of the país político, since the average voter doesn't care about constitutionality issues or even about costs.

Although the anti-corruption referendum has been in the news for months, by the time the campaign began - right after the presidential runoff - everybody, including the journalists, were tired and relatively little attention has been given to it or the campaign in the media. Even if every party voted in favour of holding it, and the CD indicated that it would actively campaign in favour, none of the traditional parties have actively campaigned for it, although some of their members and individual politicians have been campaigning in favour. Obviously, none of the traditional corrupt/clientelist machines will be mobilizing their networks on Sunday, although the recent presidential election showed that these machines don't necessarily drive turnout as much as they one did. Without many politicians actively campaigning, little enthusiasm from the parties and with little money or other resources for the yes campaign, the campaign for the referendum is primarily a grassroots one driven by individual citizens (primarily young people, students), small networks, unions, volunteers, social media and civil society. Without much attention from the media or politicians, they're betting on grassroots campaigning in the streets, on social media and in public forums being held. While this sort of grassroots campaign worked for Petro in the presidential election, it won't necessarily work this time -- and even if it did, Petro's grassroots 'multicolour campaign' only got 8 million votes in June 2018, so it wouldn't even be enough if they all showed up.

The most visible and active grassroots campaigns in favour have been led by the Greens (Claudia López, Angélica Lozano, Antanas Mockus, Antonio Navarro), the Polo (Jorge Robledo) and Petro's Colombia Humana/Decents -- that is to say, the alternative (opposition) parties, largely on the left of the political spectrum. Some mayors have been actively campaigning in favour of the referendum, like the atypical maverick Rodolfo Hernández in Bucaramanga or Rodrigo Lara Sánchez in Neiva (Huila). In comparison, the 2016 plebiscite was publicly supported by all parties in the governing coalition, the government/presidency, most of the mainstream media and many civil society organizations, and it was on an historic and transcendental topic which had dominated the news for years -- and even then, it only got 13 million voters out, and only 6.3 million in favour.

The CD kind of committed itself to campaigning in favour of the referendum when it was approved in the Senate, and doing so would show that their incessant complaining about Santos' 'corruption' for four years was genuine and not political bullsh**t... but since President Iván Duque was inaugurated, most uribistas have changed their mind and began criticizing the referendum. Iván Duque's new government has presented a package of anti-corruption and political reforms to Congress, three of which correspond to questions in the referendum (Q3, Q6, Q7). While Duque and his new administration have reiterated that they support the referendum and insist that their proposed reforms only complement the referendum, the active proponents of the referendum have said that presenting proposals which take up three of the referendum's question risks dampening public enthusiasm and cutting the ground from under their feet. On the other hand, the leader of the CD, Álvaro Uribe, publicly said that he would not vote in the referendum, arguing that he felt it was more appropriate to support Duque's proposed reforms through Congress than with the referendum. Given the quasi divine worship of Eternal President Uribe in the CD, he likely speaks for the vast majority of the party. Ernesto Macías, the CD President of Congress and high school graduate, has said that he would vote 'no' to the first question (i.e. he doesn't want a pay cut).

It is said that the uribista bases are unenthusiastic if not opposed to the referendum. In the typical nihilism and cynicism of the Colombian right, the referendum is bad because it is supported by people who dislike them (ing babies) or that the referendum is bad because it is only being used to boost the political ambitions of its leaders (Claudia López's likely candidacy for mayor of Bogotá in 2019) or is all part of the castrochavista plot to impose communism because the mamertos (leftists) are behind it.

I also suspect that the uribista idiots on social media and their fake news machines are behind the lies and fake news being spread about the referendum: that it would lower the salaries for every single civil servant, that it would lower policemen's pensions and salaries, that it will lower the minimum wage etc. etc.

To mobilize (young) voters to turn out on Sunday, Semana columnist and YouTuber Daniel Samper (the nephew of former President Ernesto Samper, ironically) has released a hit viral 'reggaeton of corruption' starring (all dressed up) Claudia López (Greens), Angélica Lozano (Greens), Antonio Navarro (Greens), Jorge Robledo (Polo) and Luis Fernando Velasco (Liberal). It has over 1.5 million views in just 2 days.

https://www.youtube.com/watch?v=nacvZmMwZuo

My bets: I would be pleasantly surprised if the referendum passed the turnout quorum of 12 million votes.

[Former President tack50]

Seems very interesting! I'd probably vote yes in everything except term limits and possibly Question 4.

[DavidB.]

Thanks for this write-up! From my outsider's perspective it seems like a very good sign that a referendum like this can be held - it shows that this is a rather healthy democracy, even if corruption is widespread. With my limited knowledge I think I would vote yes on all questions except for the term limits.

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I won't be here tomorrow to follow the vote or give much analysis since I'm going on holiday south of the border, but I wanted to share some additional perspectives and analysis on the referendum regardless.

La Silla Vacía looks at the 10 major implications of the referendum, both the political effects and the potential positive and negative implications that each question would have (if approved). My personal perspective here is that while none of these questions would be magic bullets, they could have - on the whole - positive effects, but they also have some potential negative side-effects. If I was Colombian, I'd still vote (because abstention in this case is playing into the hands of the corruptos), and would probably vote Yes to every question except 1, 4 and 7.

As to the actual results, there are three benchmarks (in terms of raw votes):
Passing the threshold (over 12 million votes, presumably 90%+ yes) would be an historic victory and a major sign of civic engagement against corruption. No single candidate has ever won that many votes (Duque won about 10.4 million in June).

Getting over 8 million votes, equivalent to Petro's strong showing in June, would still be a positive result for the referendum and its grassroots supporters, signaling that it still mobilized a large number of voters despite it being the fourth electoral event in 6 months and lacking money or major political backing. It would increase pressure on the government to translate many/most of the referendum's questions into law.

Getting less than 4-5 million votes would be a major defeat. The initiative got about 4 million signatures, so not getting much more would send a message of apathy, disinterest and indifference. It would be a defeat for the referedum's top proponents, and would reduce the saliency of corruption as a political issue. By default, it would be a win for the corruptos and Uribe.

La Silla Vacía has a fascinating interview with a professor from the Externado discussing corruption in Colombia. She says that corruption is a "combination of elements related to the socioeconomic structure (inequality), the political culture (clientelism, patrimonialism, caciquismo, nepotism), the institutional and organizational design (little accountability, tensions between branches and high impunity) and people's psychology (profitability of evading the rules)". In comparison to other Latin American countries, she places Colombia right around the middle, far from being the best (Uruguay or Chile) and far from being the worst (Venezuela, Honduras, Mexico): "Comparatively, Colombia is better with respect to petty corruption and worse with respect to big corruption". Interestingly, she contends that Colombia's excessive legalism is one of the main reasons why it has been difficult to effectively fight corruption, because there are too many entangled laws and the permanent 'reforms' don't give time to see if laws are actually working. The 'only' effective solution she sees is meritocratic civil service reform, which hasn't really been done in Colombia, since anti-corruption reforms focus more on 'send this guy to jail and increase sentences for this'.

With regards to the referendum, I agree with her view that the content of the questions isn't the most important: the most important thing is the symbolic value - a message that citizens are frustrated with the lack of results and Congress' failure to take responsibility. Therefore, if it fails, it would send a very negative message, reinforcing cynicism, indifference and resignation.

From a far more judicial/legal perspective unlikely to interest anyone here, Rodrigo Uprimny (a highly respected lawyer from the NGO Dejusticia) argues that questions 1 (pay cut for congressmen) and 7 (term-limits) are unconstitutional because both questions would require constitutional amendments, and a 'consulta popular' cannot be used to change the constitution (the constitution may only directly be changed by Congress, a referendum or a constituent assembly). While many other lawyers do seem to share his opinion, the promoters of the referendum claim that questions 1 and 7 wouldn't require changes to the constitution. Uprimny highlights a major gap in the law: there is no automatic a priori judicial review by the ConCourt of a national consulta popular (but there is prior judicial review by administrative courts for local-level consultas), which implies that if an unconstitutional question is adopted in a national consulta popular (which may happen on Sunday), it would create a major dilemma between two fundamental democratic values: modifying the constitution through unconstitutional means to respect popular sovereignty/the people's will, or not respecting the people's democratic will/mandate to protect the supremacy of the constitution and rule of law. As with everything in Colombia, this promises more endless legal debates and leaving the final word in the hands of the ConCourt...