A proposed amendment to the national referendum law, which regulates how the public votes on proposed amendments to the Constitution, has raised questions about whether tighter regulations are needed on political advertisements in the lead-up to referendums. Those calling for more control over such ads say that as the law currently stands, massive ad campaigns by well-funded groups might sway the outcomes. Meanwhile, commercial broadcasters have said they cannot voluntarily curb the volume of advertisements they air and expressed their opposition to tightening legal regulations, citing freedom of expression. These questions need to be resolved before the prospect of holding such a referendum becomes real.

The amendment now before the Lower House panel on the Constitution is not controversial. It seeks to make provisions designed to enhance voter convenience in referendums on par with those under the Public Offices Election Law, such as creating common polling stations in train stations and commercial establishments, and opposition parties reportedly have no objections to the revision itself. But while the ruling coalition seeks to quickly pass the amendment through the Diet, key opposition forces, including the Constitutional Democratic Party of Japan, are calling for discussions on tightening regulations on broadcast ads regarding constitutional amendments in the lead-up to referendums, leaving the fate of the amendment up in the air.

The referendum law was enacted in 2007 during Shinzo Abe’s first stint as prime minister. An amendment to the Constitution, which needs to be initiated by two-thirds majorities in both chambers of the Diet, must then be approved by a majority in a public referendum, to be held between 60 and 180 days of its proposal by the Diet. Under the 2007 law, political advertisements on TV and radio calling for either supporting or rejecting an amendment are banned in the final two weeks before the vote — supposedly to give voters time to weigh the issues and make judgments in a quiet environment. However, there are no regulations on such ad campaigns — either the number of ads or how much money is spent on them — prior to the final two-week period, and concern has been raised that without any control on the volume of ads that either proponents or opponents can buy, the side with more funding can have a big impact on voters’ decisions.

In fact, a supplementary resolution adopted by an Upper House panel when it endorsed the referendum law noted that it will “respect the voluntary efforts by people in the media to ensure fairness” in the campaigning. However, officials from the Japan Commercial Broadcasters Association (JBA), summoned to the Lower House panel on the Constitution this month, made it clear that they could not impose curbs on the volume of ads broadcasters air in connection with referendums, and that they opposed tightening legal controls on ad campaigns, citing the need to protect freedom of expression. An opposition leader charged that commercial broadcasters promised voluntary curbs on the campaign ads when the law was discussed in 2006 — and that it would be “flawed” without such controls.

The rules on national referendums are built on the premise that political parties, organizations and individuals should in principle be able to freely campaign for or against proposed amendments to the Constitution to encourage active public discussions. Freedom of expression in advertisements has been established in court precedents.

Questions linger, however, as to whether it is appropriate to allow gaps in funding between camps on divisive issues like constitutional amendments — with such votes having major public consequences — to affect the amount of campaign ads. Short of regulating the number of ads that broadcasters can air, there are reportedly calls for setting a ceiling on advertising spending by each party.

Some people point to the need to address issues that were apparently not taken into consideration when the referendum law was enacted. JBA officials told the Lower House panel on the Constitution that annual spending on online advertisements will likely surpass the amount spent on television ads for the first time this year, suggesting that the discussion on regulating ad campaigns for referendums should involve internet ads as well.

Given the widespread use of the internet and social media in particular, others cite the risk of possible intervention by foreign elements to influence voting — which was reportedly suspected when Britain held a referendum in 2016 on whether it should leave the European Union. These and other concerns should be addressed to ensure that national referendums on constitutional amendments can be held in a fair manner that leaves no questions unanswered.

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