We are now in the final month of campaigning ahead of Italy’s constitutional referendum on 4 December. Presenting a case for a No vote, Valentino Larcinese argues that the proposed reform would remove much needed checks and balances on executive power in Italy, while the method used by the government to try and enact the reform is also worthy of rejection in its own right

Larcinese, Valentino

LSE Research Online

04/11/2016Why Italians should reject Renzi’s constitutional reformblogs.lse.ac.uk/europpblog/2016/11/04/why-italians-should-reject-renzis-constitutional-reform/We are now in the final month of campaigning ahead of Italy’s constitutional referendum on 4December. Presenting a case for a No vote, Valentino Larcinese argues that the proposed reformwould remove much needed checks and balances on executive power in Italy, while the methodused by the government to try and enact the reform is also worthy of rejection in its own right.Interested in other points of view? Check out EUROPP’s full coverage of Italy’sconstitutional referendum.In early December Italians will vote on a constitutional reform proposed by the current government. The mostimportant consequences of a “Yes” victory in the referendum would be, first, to change radically the role of theSenate, second, to extend the privileges of the executive in the legislative decision-making process, and third, tocentralise a number of functions previously devolved to regional governments. These three pillars will all work in thedirection of creating a much stronger central executive. A detailed description and assessment of the reform isprovided in an excellent EUROPP piece by Gianfranco Pasquino and Andrea Capussela, which should be consultedfor further details. In this blog I will argue that there are at least two good reasons why the reform deserves to berejected.The first is based on the merit of the reform: it will mark a shift towards a de facto quasi-presidential systemembedded in de jure parliamentary institutions. This is a system where parliamentary checks on the executive wouldbe severely limited. At the same time there is no reason to expect that the reform will have any positive impact eitheron the functioning of Italian public administration or on its economy.The second reason stems from the method employed to enact the reform: the conditions that led to its parliamentaryapproval are very different from the conditions that led to the 1948 constitution. The proposed reform is not theoutcome of an open parliamentary deliberation but rather of party discipline and short-term political considerations.This method to change a constitution deserves to be rejected in itself and independently of the content of the reform.A stronger executive and a weaker parliamentThe reform of the Senate is substantial and alters in a fundamental way the legislative process. At the moment theItalian parliamentary system is bicameral: all legislation must be passed by both the Camera (Lower Chamber) andthe Senate (Upper Chamber). The executive needs the confidence of both chambers. The reform will reduce thepowers of the Senate. First, the executive will no longer need the confidence of the Senate. Second, a perfectlybicameral system will remain in place for matters of constitutional interest and for policies that concern localadministrations and international treaties.In all other cases the Senate may require a reading and suggest amendments but the second reading in theCamera is final. The Senators will be reduced from 315 to 100 and will no longer be elected directly by citizens. TheSenate will be formed by representatives nominated by the Regional Councils, although the nomination process hasnot been specified yet. The reform would therefore create a fuzzy entity of part-time Senators/local councillors, withsome margin for the government to decide after the referendum how it should be shaped.The reform will diminish the role of the Senate but will not create a unicameral system. Article 70 of the Constitution,which currently reads “The legislative function is exercised collectively by the two chambers” would be replaced by anew article which consists of almost 500 words (and in turn refers to ten other articles of the Constitution),1/5attempting to delimit the functions of the new Senate. Constitutional experts are still debating how many legislativeprocedures the new constitution would create: it is hard to imagine that everything would proceed smoothly with nocontroversies on which role the Senate should play on specific pieces of legislation.Contrary to its intention, there is no guarantee that the reform would make the legislative process more efficient thanit currently is. When looking at the performance of other European parliaments, it is also not clear that the number oflaws passed and the speed at which they are approved are really a problem in Italy. In the end it is well known thatthe main problem with Italian public administration is not so much the production of laws as it is theirimplementation.Let’s now ignore then the complications deriving from possible conflict between the two chambers and focus on thepolicy domains on which the Senate would only retain a de facto consultative function. In these cases, the reformwould remove (or reduce the influence of) one institutional veto player, therefore increasing the set of feasiblepolicies that a government can successfully pass through parliament. Since in many instances the government actsas an agenda setter and the parliament as a veto player, there is little doubt that the executive would be strongerunder the new constitution since it would face the approval of one less institutional veto player (for a more technicalexplanation of why this is the case, the interested reader can consult George Tsebelis’ book on ‘Veto Players’). Inaddition, the reformed constitution would go even further by reinforcing the agenda setting powers of the executive.The reform, for example, would introduce temporal limits to the legislative process and a special high speed lane forexecutive-initiated legislation: five days to have it timetabled and 70 days to have it approved. The governmentwould de facto dictate the calendar of parliamentary work.Checks and balancesTo be fair, reinforcing the executive is an explicit aim of this reform, as stated in the very first page of the proposal,where the main problem with the current system is identified as “the chronic weakness of the executives inimplementing the government programme”. This reflects a view which is well stated in a paper produced in 2013 bythe Economic Research team of JP Morgan, pointing to restraints on executives as one of the causes of thedifficulties faced by Southern European Countries during the Great Recession:The political systems in the periphery were established in the aftermath of dictatorship, and weredefined by that experience. Constitutions tend to show a strong socialist influence, reflecting thepolitical strength that left wing parties gained after the defeat of fascism. Political systems around theperiphery typically display several of the following features: weak executives; weak central statesrelative to regions; constitutional protection of labor rights; consensus building systems which fosterpolitical clientelism; and the right to protest if unwelcome changes are made to the political statusquo. The shortcomings of this political legacy have been revealed by the crisis.Most supporters of the reform would probably not go so far, but it is not uncommon to hear that the restrictions onexecutive power that were imposed by the founding fathers of the Italian Republic after WWII and the Fascist regimeare outdated and unnecessary today. This is a rather risky view: it’s not difficult to observe the rising nationalism inall corners of Europe, the brutality of the relations between EU states, the attempts to set aside the British parliamentin the Brexit negotiations, and the quick rise of “strong” leaders displaying little respect for democratic values andinstitutions even in solid democracies.There has probably never been a time so similar to the 1930s: far from being outdated, we need more than everthose restrictions on executive power and those checks and balances (institutional, political and social, like the rightto protest) guaranteed by the founding fathers in the 1948 Constitution. And when a head of government tells usthat such checks and balances are outdated, this is probably a sign that they remain vital.2/5The selection of MPsThe reform must be assessed with Italy’s current electoral law taken as given – and not, as some have argued, byabstracting from it (because it is not part of the constitution). Any promise to change the electoral law after thereferendum is not credible because we do not know if and how incentives to modify the law will change after thereferendum (and abstracting from possible new judicial intervention on its constitutionality).The current electoral law, which has been called “Italicum”, is a slight modification of the electoral law introduced byBerlusconi in 2006 (and it would obviously only apply to the Camera). It gives a majority premium to the party thatreaches a plurality of at least 40% in the first round or a majority in a run off. Even more importantly, it is a systemthat elects most MPs in closed-list ballots, giving huge influence to party leaders over the choice of their MPs.The choice of Senators, which would be changed by the referendum, would be made by the Regional Councils.Hence, Italians will continue to be unable to choose their MPs, a practice which has been in place since 2006 andon which the government has not felt the need to intervene. Selection by party leaders and career concerns meansthat MPs will be in most cases simple executors of party lines and that MPs will be selected for their loyalty toleaders, not for their competence. Hence the constitutional reform would give us a much reinforced executive withthe capacity de facto to nominate a majority of MPs. Inevitably the parliament will become even more than today amere rubber stamper of executive-initiated policies.One good reason to reject the constitutional reform is precisely that, by doing so, Italians can force the governmentto rethink the electoral law. Since the Italicum only applies to the Camera, and since its only positive feature is tocreate stable majorities, it would become completely useless if the government still needed the confidence of theSenate.There is no reason to expect any economic benefit from the reformAs we have seen, under the new constitution it would be easier for the government to move policy from the statusquo. There is nothing intrinsically desirable or undesirable about this: it depends entirely on what we think about thestatus quo and about the reforms that an empowered government would try to pass. As in many other situations weface a trade-off. On one side, an entrenched status quo may render the political system less able to quickly respondto a sudden crisis or to other changes requiring immediate action. This (and not the propaganda on the negligiblereduction of the costs of the Senate) is the main argument in support of the reform. On the other side, reducing thenumber of veto players reduces policy stability and creates more volatility. This is because any change in theexecutive would have a larger impact on implemented policies (particularly in the current unpredictable three-partysystem).Hence the new constitution would not decrease, but rather increase, policy instability and uncertainty. Mosteconomic literature tends to stress that policy instability and uncertainty are not good for the economy. There is noempirical evidence suggesting that the first effect (being able to better respond to changes) should dominate thesecond (greater policy instability). I would rather point to an ample literature suggesting that constraints on executivepower tend to have positive effects on the capacity to borrow, the respect of property rights, the building of statecapacity and, ultimately, on economic growth (see for example the classic work of Douglass North and BarryWeingast on 17 th century England).The method: a constitutional reform with little deliberationConstitutions lay the foundation of democratic decision-making, they define the rules of civil coexistence and assuch they should be broadly accepted by all members of a society, ideally, or a qualified majority in practice. The1948 Constitution was the expression of a special period of cooperation between all anti-fascist political parties andrepresents the synthesis that emerged from a broad coalition. A Constituent assembly was elected, using aproportional electoral system, to draft and approve the Republican Constitution after the Monarchs had been kicked3/5out by a referendum.Nothing comparable is happening at the moment. Renzi’s Constitutional reform has only been supported by a slimmajority in parliament. In addition, the current parliament has been elected using an electoral law which has been,ex post, declared unconstitutional. The slim majority obtained in parliament is only a consequence of the electoralsystem, which provides a majority premium in the Camera and regional majority premiums in the Senate. Aproportionally elected parliament, without a hefty prize for the current government, would have, most likely,expressed a different view or it would have been able to force the government to give more consideration to theopposition.As such, the Constitutional reform has only been passed in parliament thanks to an unconstitutional electoral law.Unconcerned by this, the government has done very little to open up a debate and to create a cooperative andconstructive atmosphere around the reform, as the circumstances would have merited. The reform has simply beenpassed thanks to party discipline, in a context in which, because of the closed list electoral system, MPs know all toowell that their political career is in the hands of their party leaders more than their voters.The government strategy has been to ensure a minimum winning coalition thanks to short term political rewardswhile waiting for the moment when the reformed constitution and the leader proposing it could be blessed by popularvote (counting, it has to be said, on the support of most mainstream media). This is no way to reform a Constitution:this reason alone should be sufficient to reject the reform for any voter who thinks that democracy is first andforemost about having a set of rules on which a vast majority of a society can agree.Analogies with Brexit: parliamentary sovereignty under attackParallels are often made between the Brexit referendum and Italy’s referendum. Some supporters of the Yes camp,for example, insist that a No vote would have negative economic consequences for Italy, like Brexit for the UK (andthere is rather a lot of scaremongering in mainstream Italian media these days). However, while it is easy to see whyleaving the EU or the European single market would have an impact on the British economy, it is not clear at all whyrefusing to concede so much power to the executive should have negative economic consequences.As we have seen, a well-established theoretical and empirical literature would instead suggest that excessiveexecutive power is typically associated with worse, not better, economic outcomes. It is true that a No vote couldtrigger a government resignation and that a general election could follow but, again, why an election should have anegative effect on the Italian economy, beyond the very short term, remains a mystery.Much like in the EU referendum, where the views of foreign leaders were one-sided against Brexit, most EU leaders(and President Obama) have come out in support of Renzi’s constitutional reform. It is clear why foreign leadersmay want to voice their support for keeping the EU single-market intact, since their own interest is at stake. It isentirely legitimate to ask your trading partner not to leave, even if you acknowledge that it is their choice. But it ismuch less clear why foreign leaders should be interested in the way Italians pass their laws.One possibility is that stronger executives within the EU (and particularly the Eurozone) could more effectivelyexecute EU policy and avoid the complications of parliamentary deliberations (see the recent case of the Canada-EU trade agreement). I could perhaps be persuaded that this would be an acceptable arrangement if the EU was afederal state with a fully empowered parliament. This possibility, however, seems to be unpalatable to Europeancitizens and is not supported by European leaders. It is therefore hard to understand why the endorsements offoreign leaders should be of any relevance for Italian voters.The real analogy between the Italian Constitutional referendum and Brexit concerns instead the sovereignty ofparliament. In the UK, one of the few rational arguments in favour of Brexit contrasted a democratically electedparliament in Westminster with the democratic deficit of EU institutions. However, after the Brexit vote, the executiveintends to keep its hands free to interpret the referendum outcome as a mandate to exit the single market (although4/5the referendum posed a question on the EU, not the single market) without involving or even informing parliamentabout the negotiations. With the Great Repeal Act, Westminster risks being stripped of any say over how EU lawshould be changed into British law. As a reminder of the importance of the separation of powers, it has been so farthe judiciary that has reinstated the right of parliament to vote on Brexit.Similarly, in Italy the executive is trying to make parliamentary approval a mere rubber stamp for the government’spolicies. With the reform, the agenda and the calendar of parliamentary work would be dictated by the executive.Thanks to the closed-list electoral system, MPs will depend for their re-election mostly on party leaders and onlymarginally on voters’ choices. The parliament will be increasingly populated by yes-men and will becomeincreasingly irrelevant. In short, the constitutional reform will deal a serious blow to the separation betweenlegislative and executive power.Both Italy and the UK are parliamentary systems and the sovereignty of parliament is central to their democracies.As already argued on EUROPP by Fabio Bordignon, Renzi’s constitutional reform must be seen as part of a graduallong term empowerment of the executive which could eventually culminate in a “third republic”, with increasinglypersonalised politics, strong party leaders and parliamentary elections leading de facto to the choice of a quasi-president.This would clearly be a problematic outcome: presidential systems come with a much tighter separation betweenlegislative and executive powers. Checks and balances are different from those of parliamentary systems. Whencontemplating the possibility of a Trump presidency, for example, we can at least be reassured that a PresidentTrump would be very unlikely to have Congress on his side. The American Constitution, drafted nearly 250 yearsago, still works very well by providing safeguards to at least limit the damage of a Trump presidency. Italian votersshould consider very carefully the consequences of creating an overly empowered executive with limited checks andbalances.Please read our comments policy before commenting .Note: This article gives the views of the author, and not the position of EUROPP – European Politics and Policy, norof the London School of Economics. Featured image credit: Palazzo Chigi (CC-BY-SA-2.0)Shortened URL for this post: http://bit.ly/2fjB6eh _________________________________About the authorValentino Larcinese – LSEValentino Larcinese is Professor of Public Policy in the Department of Government at the LondonSchool of Economics.5/5

Why Italians should reject Renzi’s constitutional reform

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