The 1995 McKenna judgment precludes the use of public funds to advance only one side of a referendum debate. There is immense hostility to the judgment among the establishment and the political elite. It is beginning to look as though they will not rest until it is rolled back.
Former Chief Justice Tom O'Higgins, writing in this newspaper this week in relation to the Nice referendum, blamed the McKenna judgment for a "dull and unenthusiastic pre-poll campaign, with the active campaign being almost exclusively confined to the No lobby, no publicity on the part of the Government, widespread lack of interest and a very low poll." It is very unusual, even for a retired judge, to criticise other judgments publicly. Yet he then goes on to call for the reasoning in the McKenna judgment to be reconsidered and overturned by the Supreme Court.
He believes that the judges in the case confused the individual's right to vote with voting rights which "are not given to groups of citizens, however composed." I would bow to the former Chief Justice's knowledge of the Constitution. However, as a lay person, that seems an extraordinarily individualistic view. In a referendum, individual voters inevitably become part of a grouping or class, those who wish to vote No and those who wish to vote Yes. For years the Government got away with a blatantly unfair ability to pour taxpayers' money into one side of a campaign, regardless of how many citizens felt impotent fury at seeing their point of view neglected.
The Supreme Court recognised that one-sided campaigns at taxpayers' expense are simply unfair. They got it right.
Mr Justice O'Higgins fears that the Supreme Court was unduly influenced by the circumstances of the divorce referendum. I fear the good judge is too influenced by the circumstances of the Nice referendum.
It is clear that he feels that if McKenna is not rolled back that the unthinkable might happen again - people would vote against it. With due respect to the former chief justice, to blame the McKenna judgment for what he alleges was a dull and unenthusiastic pre-poll Nice campaign, is like blaming democracy for electing winners.
The pre-poll campaign was dull and unenthusiastic only if your preferred outcome was to have the Nice Treaty passed. If it was not, it was a colourful and vibrant campaign, with all sorts of ad-hoc lobby groups cheerfully exercising their democratic right to attempt to influence the outcome. If the McKenna judgment did not preclude the No side from being active and involved and securing a victory, why did it bother the Yes side? The McKenna judgment does not prevent campaigning on any side.
No longer being allowed to spend taxpayers' money meant that the establishment political parties were rather out of practice when it came to a real campaign. The No side put up their own posters. The Yes side had to pay for theirs to be put up. The No side campaigned on the doorsteps. The Yes side did not.
Most unforgivably of all, the Yes side peddled disinformation, by alleging that the Nice Treaty was vital for enlargement, only to have Romano Prodi embarrassingly reveal that this was not true. When he attempted to modify his original honesty by saying that it was legally but not politically possible to enlarge, the cynicism of the average Irish person deepened still further.
Certainly there was a low poll, but low turnouts are a modern phenomenon in most democracies. You can hardly blame the McKenna judgment for that. In the referendum, the low poll was not unrelated to the fact that, as Brian Cowen admitted, "there is an unfortunate failure to identify with these institutions". Unfortunate indeed, since the average Irish person realises that the EU influences practically every area of our lives, and yet we are practically powerless to influence the EU, and will be even more so once we lose our right to a commissioner.
How could we identify with the EU? There is nothing there to identify with save bad-tempered national egos yoked together. This is illustrated by the fact that we could not have any recognisable national symbols on our new, supremely bland euro notes. There was fury when France and Italy claimed that two of the architectural pieces depicted were based on structures in their countries.
This week, the All-Party Committee on the Constitution proposed that the Referendum Commission should be curtailed still further, and that money should be given to lobby groups on each side. That is a superficially attractive proposal, but the devil is in the detail. Which groups do you fund? On what criteria? There is talk of such groups having to prove their bona fides, perhaps by showing membership. Most lobby groups are ad hoc, and few, even the longest running, have formalised membership structures. That is not to say that they do not represent large numbers of people, though some may not.
Far better would be to give a longer run-up time and adequate resources to the Referendum Commission. It has been hamstrung because of the hostility to the McKenna judgment. The last time, it was given a month to prepare arguments for and against no fewer than three referendums. There was no possibility of doing anything imaginative which would allow them to go beyond desperate attempts to have a leaflet hit every doorstep.
Nice is a badly framed treaty, lashed together with a vague hope of sorting it all out at the intergovernmental conference of 2004. Despite this, the media, the major political parties, the trade unions, the farmers' organisations, even the Catholic Hierarchy weighed in behind Nice.
They all got it wrong. Reassuring as it would be to blame the McKenna judgment for that, the reason is much simpler. The Irish people are fearful of conceding sovereignty to a bureaucratic monster. Until they can be persuaded that those fears are groundless, blaming McKenna simply exposes the inadequacies of our political system.
bobrien@irish-times.ie