Category Archives: CONSTITUTIONS

Reform to the Israeli judicial appointments process passes [Updated]

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On 27 March, the Israeli Knesset passed into law an amendment to the procedure for appointing judges, including the members of the Supreme Court (JNS, TOI). This is one part of the package of “judicial overhaul” measures that were central to the political controversy–which included mass protests against it–in 2023 prior to the invasion and massacres carried out by Hamas on 7 October 2023.1

[Quick note: JD Mussel and I have a forthcoming article on the judicial overhaul in comparative perspective. It should be published soon, and I will post a link to it here when it is ready. IT IS READY!]

It is important to note that what now has passed is considerably more moderate than what was proposed in early 2023. In fact, in a purely objective evaluation, it should be recognized as a quite decent solution to the challenges of designing an appointment process for the highest court that is neither too controlled by an incumbent majority nor too unresponsive to political shifts. That is not to say that passing it was a “good” thing, and it certainly was not consensual. It passed only with the votes of the governing coalition, which is itself a troubling way to make major structural changes to government institutions. And it is still being decried as a “coup” and the “end of democracy” by the opposition–both parliamentary and extra-parliamentary.

The newly passed rules will provide that the Judicial Selection Committee2 will be restructured. The current process is a 9-member committee consisting of the Minister of Justice and another direct governmental delegate, three senior judges, two representatives of the Bar Association, and two representatives of the Knesset. There has been an informal understanding that one of the MKs would be from the government and one from the opposition, but this has never been codified in law. Appointments to lower courts are made by a majority of the committee, but appointments to the Supreme Court have required, since 2008, a vote by 7 of the 9 members. Note from the composition that the government could be guaranteed three representatives (the justice minister, the other government delegate, and the coalition MK), and thus would have a veto over Supreme Court appointments, as the remaining members are only six but seven are needed. In addition, the Supreme Court would also have a potential veto over new members in that if the three senior judges (whose inclusion in the committee the government did not determine) voted together, no one could be appointed. Thus for Supreme Court appointments, effectively the government and the existing Court representatives had to agree. Moreover, if the two Bar Association delegates agreed with the three judges, they had enough to appoint a preferred candidate to a lower court. Giving the judiciary and legal profession such a large role in court appointments is very unusual (although not entirely unheard of) among established democracies. This was the structure that the government formed in late 2022 set out to change.

The previous proposals of this government were to remove the Bar Association members, and to have all members aside from the three judicial delegates be appointed by the government or Knesset committee chairs that the coalition would normally hold. The committee was to be expanded, so that the delegates of the judiciary would no longer have a veto even as 7 members would still be required to select candidates to the Supreme Court.3

The amendment that has just been passed emerged from a proposal put forth by Gideon Sa’ar, who had been initially a member of the opposition to this government, but whose New Hope Party joined it and became Foreign Minister in December, 2024. The new provisions will remove the Bar Association members entirely, in favor of having two lawyers, one chosen by the coalition and one by the opposition. The committee would continue to have nine members, but with a changed procedure in which the judicial delegates would have no veto power over appointments to the Supreme Court (although they would still have a veto over lower-court appointments). The procedure retains a consensus mechanism in that both the government and opposition political delegates would have to agree on any appointment: a majority of members (5) is sufficient to appoint, provided that at least one of the members in the majority is a government appointee and one is an opposition appointee. There is also a deadlock-breaking provision, as JD noted in a comment.

Obviously the procedure does indeed increase political influence over the composition of the Supreme Court. However, it should be just as obvious that it does not give the government full control over appointments. It thus is hyperbole to say it is nothing but a government power grab, let alone the end of democracy.4 It also is relevant to this discussion that the measure does not take effect till after the next Knesset is elected, so any vacancies that result between now and the next election would continue to be filled under the current procedure.

Nonetheless, it received just 67 votes, all from the coalition (which has 68 members of Knesset from the parties currently comprising it), and the opposition has vowed to repeal it whenever it comes to power.5 And therein lies much of the problem: the Israeli constitution, including rules governing the composition of its judiciary, is simply what a majority of Knesset members (61) says it is–unless, of course the Supreme Court invalidates such a ‘Basic Law’ passed by a majority. With the Attorney General having denounced it, and petitions already filed with the Supreme Court, it is not out of the question that this amendment could be declared an “unconstitutional constitutional amendment” similar to the Court’s veto of the “reasonableness” amendment at the beginning of 2024. In fact, that ruling was the first time the Court had invalidated a Basic Law, and it is easy to see how they could claim this change to the Judicial Selection Committee was similarly inconsistent with more fundamental constitutional principles (as set by the Court). If they do so, it may set up a confrontation like nothing we have seen so far. I will not pretend to predict how they will rule, nor claim how they “should” rule.

What would be the argument for such potential invalidation? Likely it would be something like the conflict of interest of a government whose head, Prime Minister Benjamin Netanyahu (Likud), is undergoing a corruption trial, to undertake fundamental reforms of the judiciary.

The passage of this amendment comes as the war has resumed with the collapse of the truce that had taken effect in January.6 It also comes the same week as the cabinet has begun the formal process of dismissing Attorney General Gali Baharav-Miara and has announced the end of the tenure of the current head of Shin Bet Ronen Bar.7 While all of these moves are being denounced by the opposition leaders and civil society groups, again we should look at the actual powers of the government. The Israeli Attorney General is unusually independent, not being a direct appointee of the government, and serving for a six-year term (thus longer than any Knesset). There is an appointments committee similar to the one for the judiciary (but separate and more government-dominated), and there is a legal process for firing a sitting Attorney General for various causes, which involves convening the committee and holding hearings. However, at the end of the process, the government has the final say and can fire the AG even if the committee has recommended otherwise. This is the procedure the government has initiated. It is following the law.

As for the Shin Bet head, it is my understanding that the government is basically correct when it claims that the law explicitly grants the government the authority to fire him–although there may be a qualification needed here.8 [There is an update in that footnote.] Yet the Attorney General objected to the move, citing a 2016 cabinet resolution9 that requires them to convene the same committee for high civil service appointments that is required to select this official. It seems unlikely that a cabinet directive can override a law that makes no mention of any committee having to vet a firing. Yet in response, the Supreme Court put a temporary injunction on the firing and could choose to say firing the Shin Bet head under current circumstances would be “unreasonable” or otherwise not permissible. Again that is not a prediction, but it would also not be a surprise.

Consider that the move for fire Bar came only after it was revealed that the Shin Bet was undertaking an investigation of potential Qatari influence in the Prime Minister’s office. With Qatar a known backer of Hamas, and with dealings between Israel and Hamas–including the recent ceasefire deal and regular cash transfers prior to the Oct. 7 war–having been handled for years via Qatar, this is quite a volatile scandal (if undue influence is confirmed).

So yes it indeed could be deemed unreasonable, or otherwise in conflict with basic democratic principles, for a government headed by a Prime Minister who himself is on trial and whose associates are being investigated for foreign influence during wartime to do any of these things–change how future judges are appointed, fire the semi-independent Attorney General, or dismiss the head of an important “gatekeeper” agency like the Shin Bet.

There is nothing in any Basic Law that says the Court can block an amendment to any other existing Basic Law or that it can declare the government’s exercise of executive authority “unreasonable,” but the Court has said it can review acts based on principles the Court itself has established. Thus a showdown may be looming. I still do not subscribe to the “end of democracy” claims, although if the government were to defy a Supreme Court order, the situation obviously would be very dangerous. Also dangerous, it should be noted, would be a Court order intervening in these tense and divisive matters, at least if there is no clear basis in law for their intervention.10

_________

  1. I did a video presentation on the judicial overhaul plans back in May 2023. ↩︎
  2. I think this should be called a “Commission” not a “Committee” but I will go with the flow of how it is routinely translated into English. I use “committee” for a panel that is part of a broader organization (like a cabinet committee or a legislative committee) and “commission” for a panel that is comprised of representatives of multiple other organizations. So, yes, this is a commission. ↩︎
  3. The proposals went through several iterations, hence the lack of specificity here about precise size and appointing authority. ↩︎
  4. Or even of liberal democracy, as V-Dem already dubiously declared in its 2024 report. ↩︎
  5. Which virtually all polls since early 2023 to the present have shown would be as soon as a new election is held. However, unless the coalition breaks up, an election is not required till October 2026. The government just passed its budget, so it is stable for now. ↩︎
  6. The multi-phased ceasefire was almost certainly never going to make it the second phase, which would have required Israel to announce the war is over and implicity to allow Hamas to remain in power in some form. Hamas as a fighting force has suffered heavy destruction but is not defeated yet, particularly as a governing force, and this goal of the war–no more “Hamasstan” on the border of the Jewish homeland– is hardly going to be rescinded given what happened on Oct. 7. Hostages also are still being held, and as I have noted throughout, the goals of hostage releases and Hamas defeat have always been in tension, even as truces have allowed some significant numbers to go free from their wicked captors. This would be the subject for a separate long post (and the programming note remains in effect on such topics!). The bottom line is that those who thought the ceasefire was the beginning of the end of the war were kidding themselves. ↩︎
  7. The Shin Bet (or Shabak) is the domestic intelligence agency. ↩︎
  8. Bar’s own scathing letter against the effort to fire him is worth a read in full. UPDATE (2 April): The qualification to the point about legal ability to fire is that there is also an apparently contradictory provision of the law saying the Shin Bet head has protection against following orders that are for the political or personal benefit of the Prime Minister, which presumably extends to a dismissal order (else the PM could get around the protection by simply firing a Shin Bet head who refused an illegal order). I base this update on my understanding of what Amichai Cohen (a law professor who specializes in Israeli security law) said on the Call Me Back podcast. Obviously, it will fall upon the Supreme Court to opine on this apparent contradiction, for which there is no precedent since the Shin Bet Law was adopted. ↩︎
  9. Notably, during an earlier government led by Netanyahu. ↩︎
  10. I added this clause because of the possibility (see earlier updated footnote) that the Shin Bet law may give legitimate basis to an opinion that a firing is impermissible. ↩︎

Understanding the Trump usurpation of institutions

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The following is a guest post by Ben Bishin. Actually it was a facebook post and I said it would be a good blog post; he agreed and kindly gave me permission to post it here.

———

A student from my Introduction to American Government course last fall asked me for my take on what is going on with the Trump and the bureaucracy. I thought this might be of interest.

Too few students take courses that explain how and why institutions work. As always, we should ask who benefits when institutions are destroyed?

This is my slightly edited answer.

If you are following current events you know the President, using Musk, has usurped powers held by Congress. He is remaking agencies by firing appointees and eliminating positions created through acts of Congress. He is working to undermine institutions both home and abroad. He is violating numerous congressionally prescribed administrative procedures either directly or indirectly. He is eliminating oversight of many federal agencies in a seemingly ad hoc way and one that violates laws passed by Congress. People are selected not based on their competence or ability but based on their loyalty. Those who wont do their bidding are removed or replaced. News media who refuse to support his agenda are barred from access to his press conferences (e.g., The Associated Press). There is much more nuance to what appears to be an effort to purge those who might act against him from the bureaucracy, but that sums it up.

Much of this is a transparent effort to increase his own and his allies’ power and weaken institutions to hold him and his allies (and government more generally) accountable by making it difficult to enforce agreements. You should recall from class that institutions are created to solve collective action problems by 1) coordinating behavior (i.e. making policy) and 2) enforcing agreements by punishing those who do not comply. This attack on institutions undermines both of these purposes of institutions. In doing so it impedes the ability to take collective action and especially to provide public goods.

Trump and Musk claim to be doing this in the name of efficiency and in particular by saying it is to root out fraud. This is clearly false.

It is clear their behavior is a pretense, an excuse, to consolidate presidential power because if what you actually care about is rooting out fraud and waste you don’t fire the people responsible for prosecuting fraud and eliminating waste! This is what he is systematically doing and most prominently what he did when he removed the 17 powerful Inspectors General who ensure compliance at different agencies. You don’t reduce the number of IRS agents and weaken their power, or weaken the power of the Department of Justice. Instead, you conduct audits to find the fraud and direct the DOJ to prosecute those who are found guilty of fraud. Instead of actually trying to root out fraud and waste it appears that they are looking to reduce the size of the bureaucracy for a variety of reasons and to increase the ranks of their own loyalists among it (in various agencies).

When you weaken institutions designed to solve collective action problems you empower those who have their own resources and/ or who are checked by institutions. Trump is doing this both domestically and internationally.

Israeli Supreme Court strikes down “reasonableness” Basic Law

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This is true “wow” moment to start the new Gregorian year. The Israeli Supreme Court has ruled, on an 8-7 vote, to strike down the first installment of the government’s controversial judicial overhaul.

In what now seems like ages ago, but was only July, the Knesset had passed an amendment to the Basic Law: Judiciary that prevented courts from using the standard of “reasonableness” as a justification for overturning a government decision.

The amendment was immediately appealed and the Supreme Court held an unusual en banc hearing (usually it divides into smaller panels for individual cases). Two of the Court’s members from the more liberal wing, including its President, reached their mandatory retirement age shortly thereafter, but under the law still had till mid-January to be counted in decisions on any matters they had heard pre-retirement. So we knew a ruling was coming soon. There had been a leak a week or so that it would be 8-7 to strike down the amendment, as indeed it is. Just yesterday it was reported that one of the governing parties was proposing a bill that would have given the Court nine months from a hearing to issue a ruling. But the decision being announced today preempts any possibility of changing the law to buy time. 

Interestingly, 12 of the 15 agree the court has authority to strike down a Basic Law, but only 8 agreed that this specific case was one in which exercising such authority was justified. The significance of the decision is that the court is effectively saying that the constitution itself can be subject to constitutional review. That is because a Basic Law is Israel’s constitution, in effect, and such laws have been treated as higher law by the Supreme Court through nearly thirty years of precedent. The political right generally disagrees, and that has been the motivation for the whole package of judicial overhaul measures that the coalition was advancing throughout 2023 till the 7 October massacres and resultant war changed the public agenda in a fundamental way. The “reasonableness” measure was meant to be just the beginning of the overhaul.

Although I hesitate to use warlike language in the current context, this is very much an escalation by the Supreme Court (or a parting shot by the members who just retired). That is not to say they are wrong to rule this way. (And the timing was out of their control unless the two retirees simply decided not to be part of the decision–at least in the absence of passage of a law like the proposed one mentioned above.) On the one hand, it is very unusual for a constitutional court to judge the constitution itself (as opposed to judging subordinate acts). On the other hand, when the constitution (i.e., any Basic Law) can be passed by a majority of the legislature, just like any law, it would be remarkable if a majority effectively had the right to declare any of its acts “constitutional” and therefore immune to judicial review.

There is not an easy answer here as to which position is “right.” Israel really needs a constitution that requires more than a regular majority to amend.1 But it does not have that, and here we are.

[English translation of official abstract]

  1. It need not be a full Constitution, with a capital C. It could be a “small constitution” or simply a revised package of basic laws covering specifically the operation of the political institutions, passed by a supermajority, and subject to being amended only with such a majority or other more complex procedure than ordinary legislation. The other thorny issues that have so far prevented the creation of a full constitution could remain outside such a document. Yes, what I am talking about is easier proposed than accomplished, but it is worth pushing for. ↩︎

The Italian Government seeks a new constitutional reform

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The following is a guest planting about the Italian government’s constitutional reform proposal by Gianluca Passarelli, and it addresses various questions that we had in previous discussions of this topic (1, 2).

After the attempt made in 2016 when the parliament approved a reform promoted by Prime Minister Matteo Renzi (Democratic Party, centre-left) but that was rejected via a constitutional referendum, Italy seems to be dealing again with a shot to deeply modify its institutions. The reform is called by the new Prime Minister Giorgia Meloni (Brothers of Italy, right-wing, first woman to cover that position) leading a neo-fascist party in a coalition with the League (far right regionalist party) and Forza Italia (Silvio Berlusconi’s heritage): the project aims to introduce the direct election of the head of the government. 

After weeks of internal discussion and considering the political hostility and the citizens’ perplexity (it’s a divisive argument) for the introduction of a presidential regime, the right coalition moved towards a different option. However, instead of generating more clarity and a softer model, the proposal goes in the direction of assuring a direct election of the head of the government. 

The document issued by the minister Elisabetta Casellati indicates that the head of the government will be “directly elected” by voters. Basically, in a way, the proposal resounds and mimics the Israeli experience of the model used between 1996-2001 after its adoption in 1992. But the similarities end here, at the “direct election”.

The electoral system for the Parliament (Italy has a bicameral system: Senate, 200 members, and House, 400 members) indicates so far a PR with bonus, a majority-assuring system that would confer 55% of the seats to the list(s) linked to the candidate to the premiership. But there is not a clear model, nor the indication of whether or not preferences would be allowed, which formula will be adopted, in how many districts Italy will be divided into. 

According to the recently circulated draft, the project of constitutional reform would aim to modify three articles of the Italian Constitution, as follows. The presidential prerogative to appoint the PM (art. 92 Cost.) would change so that the President has to indicate the name of the candidate winning the elections. As head of the state, the President would keep the prerogative to appoint the ministers, albeit based on the premier’s indications. Moreover, one main hypothesis circulating is that were the PM to end his/her term before the legislature, the President should indicate a new head of the government by choosing among those elected in the list(s) of the candidate who won the elections. So, there is not the provision of a constructive vote of no confidence (as in an earlier version–ed.). And, due to the previous proposed changes, the reform would modify the norm regulating the vote of confidence and the motion of no confidence to the Government (art. 94 Cost.). Consequently, the presidential power to dissolve the parliament (art. 88 Cost.) is under discussion due to the provision that indicates the President has to appoint the head of the coalition who won the election and to appoint another politician from his/her majority in case s/he resigns. The President would become a sort of notary taking notes of political changes but without intervening. The proposal also would cancel the presidential power to appoint life senators, whilst those still in office would keep their seats as well as the past presidents of the republic that would become life senators.

 As the proposal would move to the parliament for a political debate, we will probably know more about this new project of constitutional reform. In particular, the absence in the proposal of a minimum threshold to win the election and to obtain the bonus would likely pave the way to a pronunciation of the Constitutional Court. In fact, in 2015 Judges have already declared that a reasonable threshold should be included in the electoral reform (at the time it was 40%). 

Finally, the text is a prelude to a new referendum in a few years because it is very divisive. However, we will see if the proposal will be modified to move towards a shared (two-thirds of the parliament) reform that will exclude a referendum.

Italian constitutional reform to be introduced

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Via ANSA news and Constitutionnet, we learn that the Italian Prime Minister Giorgia Meloni is planning formal introduction soon of a reform of the constitutional executive structure. When I wrote about this back in February, I understood the plan to be a move to some form of semi-presidentialism.

However, this ANSA article states it is a proposal for direct election of the prime minister. This possibility was mentioned in some news accounts that I cited months ago, although it was not clear that this would be the government’s proposal.

Chile’s ongoing constitutional process: 2023 election

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Chilean voters selected a new “constitutional council” on 7 May. This renewed process of constitution drafting comes after voters decisively rejected a draft that had been developed by an elected “constitutional convention” in a referendum in September, 2022.

This council consists of 51 elected members (the previous convention had 155). Unlike the previous body, which needed a two thirds vote to submit a draft to the public, this one requires only three fifths. However, it also is bound by a series of principles in a prior agreement among some of Chile’s parties and is supposed to work with a draft created by an expert commission appointed by congress. (Details of the rather complex process at Constitution Net.)

This council was elected via open lists (per the last-linked item), but I do not have the other details of the electoral system. The election result is rather short of being fully representative. The Republican Party won 22 of the 51 seats on only 34.3% of the votes. That’s an advantage ratio (%seats/%votes) of 1.26, which is very much on the high side for a “proportional” system. Two parties that combined for over around 14% of the votes obtained no representation at all and nearly 21% of votes were blank or “invalid.” The Republicans are the party of the 2021 presidential runner-up, José Antonio Kast, who is on the pinochetista far right. Combined with other right-wing parties, the broader right has the three fifths majority needed to approve a draft (“Safe Chile,” which includes the old RN and UDI, won 11).

Another notable difference is this council will have one indigenous representative, elected on 3% of the votes cast for indigenous lists. The previous constitutional convention had 17 indigenous seats elected separately from the 138 general seats. (That 3% this time is over 300,000 votes, whereas the 17 previously represented around 283,000, but total turnout and valid votes were much lower then.)

The previous assembly was evidently well to the left of the median voter (based on the nature of its draft and how badly it was rejected in the referendum). This one would seem to be well to the right of the median (after all, the president, elected in a two-candidate runoff in 2021, heads an alliance that includes the Communist Party). Whether the constraints on the council elected this time will lead to the adoption of a draft acceptable to the public is an open question. In any case, Chile is certainly showing the difficulties inherent in attempting to established a representative process for constitutional replacement.

Chile’s constitutional referendum

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It seems Chile’s voters are quite decisively rejecting the proposed new constitution. Turnout was high.

Such a result would be quite an indictment of the entire process. Others may know better than I would, but I would imagine it is unusual in a democracy for a constitutional-replacement project to result in failure at its final stage. The constituent assembly evidently did a poor job at looking down the game tree and discerning what the public would accept.

In an earlier thread, there has been a discussion ongoing about the constitution, and a link to the draft (both Spanish and English).

Fifty Shades of Republic | Part 3: constitutional amendment rules

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This post is part of Fifty Shades of Republic, a series of overviews of US political institutions at the state level

While the Federal Constitution is arguably the world’s oldest national constitution, the states were the ones that began the practice of having ‘written’ constitutions – entrenched laws with a higher status than regular laws, establishing the main features of the system of government. Since I’ve been doing some work on constitution amendment rules (of both national and US state constitutions) for my dissertation, I thought I’d do this topic next (it is also closely related to the topic of a podcast I am currently preparing for Leviathan’s Couch).

The amendment procedure has far-reaching effects. John Burgess, one of the 19th century pioneers of political science, argued it to be the most important part of a constitution. Constitutional amendment procedures entrench written constitutions, making them harder (or, at least, different) for politicians to change than regular laws. Entrenchment is meant as a means to provide the system of government with stability and to protect basic rights from change by temporary majorities. However, it also often leads to the constitutional entrenchment of various policy measures that do not pertain to the state’s basic institutions, either as a result of opportunistic coalitions seeking to protect legislation from future change or because restrictive provisions in the constitution make the incorporation of contradictory provisions into the constitutional text the easiest way of passing certain policies. Lastly, entrenchment is also an important driver of the power of the judiciary (to whom enforcement of the constitutional hierarchy is delegated).

Most US states have two or more of the following tracks to initiating a constitutional amendment: by the legislature, by a voter initiative, or by constitutional convention. The final stage is almost always ratification by voters in a referendum.

Map 1: legislative and voter initiative tracks to amendment – click for full size

Proposal

Supermajorities – 28 states today require a supermajority for passage in the state legislature. 22 only require regular majorities (simple or absolute) before going to referendum.

Of those only requiring approval by one legislature:

  • 10 states (turquoise) require a majority in both houses
  • 9 states (blue) require 3/5 in both houses
  • 16 states (dark blue) require 2/3 in both houses.

Of those requiring intervening elections:

  • 11 states (pink) require a majority in both houses before and after the elections
  • 3 states (red) require a 2/3 supermajority at one stage but not both. In Tennessee, the votes after the election must be by 2/3 in both houses; in Vermont, the amendment must be supported by 2/3 before the election, although only in the state Senate. South Carolina (dark red) requires 2/3 in both houses, after which the amendment is put to the voters at the following election. The referendum, however, is not final; it the amendment is approved, the newly-elected legislature must ratify it by majority vote in both houses.
  • Delaware (green) requires 2/3 in both houses both before AND after the intervening election, with no referendum requirement.

Intervening elections – 15 states require approval by two legislatures separated by intervening elections (shown on the map in various shades of red). A few of those states allow this requirement to be bypassed by supermajority support in the legislature (shown by a blue asterisk, with the shade of blue corresponding to the required supermajority (in states without intervening election requirement – see below) – only exception being Connecticut, where ¾ is needed to bypass the intervening election requirement). Since main idea behind this institution is often said to have been to allow voters input on constitutional amendments through the election process, many states that had this feature in earlier constitutions removed it when introducing ratification of amendments by referendum, but many have kept it nonetheless.

Initiative – Currently, 17 states allow voters to propose amendments to referendum by petition (indicated by a capital letter I on the map). The exact signature requirements vary widely from state to state. This provision originated in the Progressive era, although a few states introduced it later.

Ratification

Referendum – the referendum requirement became a near-universal feature by the time of the Civil War. In states that did not have it to begin with, it often replaced requirements for intervening elections and/or assembly supermajorities. Referendums today require a majority to ratify in almost all states; the denominator is sometimes simply the number of valid votes on the respective amendment question, but in some states it is the more demanding number of people voting at the election, so that ballots left blank count as a ‘no’. In a few states a supermajority is required for some or all amendments, e.g. in Colorado, 55%, in New Hampshire, 2/3.

Legislative vote – today, Delaware (in green) is the only state not to require voter approval for constitutional amendments – the second round of 2/3 vote in the legislature makes an amendment part of the constitution. As noted above, South Carolina does require voter approval, but an amendment approved by voters is still subject to a final (majority) vote by both houses.

Map 2: constitutional convention track to amendment (or replacement) – click for full size

Legislative convention call – In 6 states, the legislature can directly order the election of a constitutional convention (without needing voter approval) by either majority (light green) or supermajority (green) in both houses.

Legislative convention proposal – In 30 states, a convention call by the legislature must be ratified by voters. In some states the proposal can be made is by a majority (light purple), in others by supermajority (purple) in both houses. In Pennsylvania, there is precedent for this, even though the state constitution does not provide for it.

Ambiguous, referendum required – In 3 states, the constitution requires the summoning of a constitutional conventions to be approved by voters, but is silent on whether the legislature can propose this (pale blue).

Automatic ballot question – In 14 states, a convention proposal must be placed before voters at least once every certain number of years. This is indicated on the map by the specific number of years in each case.

Initiative – In 17 states, voters can initiate the summoning of a convention, either by the constitution’s explicit provision or by virtue of the possibility of proposing one using the procedure for initiating amendments. This is indicated by a capital letter I on the map.

No provision – in 11 states, the constitution does not provide for the calling of a constitutional convention (grey) nor does the state have any established practice. De facto, each of these state legislature could summon a convention by means of the regular amendment procedure.

Constitutions are usually silent on the conditions for conventions’ proposals to be made or ratified, with the exception of requiring a referendum as on ‘regular’ amendments. A few noteworthy exceptional provisions include Illinois’ requirement for 60% voter approval for any kind of convention proposal to be successful, New Hampshire’s requirement for amendments to be proposed by 3/5 vote of the convention, and Minnesota’s requirement for 60% voter approval to ratify any amendment proposed by a convention.

International comparisons

While explicit constitutional recognition of a convention route is somewhat unusual, state constitutions’ regular amendment procedures in state constitutions are very comparable to those of many national constitutions around the world. Here are a few essentially exact parallels:

  • Minnesota, Rhode Island – Ireland (majority + referendum)
  • Texas, Maine – Japan, Romania (2/3 + referendum)
  • Oregon, Arkansas – Switzerland (majority + referendum, initiative option)
  • New York, Virginia – Denmark (majority + election + majority + referendum)

However, there are some clear differences, as well. Around the world, amendment procedures that do not require direct voter approval are far more common than among US states. In fact, most democracies today do not require a referendum at all. Meanwhile, many other democracies have a referendum as just one potential method of ratification – an alternative to a legislative supermajority (so not an absolute requirement), or required for some changes but not all.

Meanwhile, it’s internationally rare for referendums to be combined with an intervening election requirement (especially when further combined with supermajorities). I just gave the example of Denmark, but I think it’s the only one, at least for the main amendment procedure; Spain has a procedure for 2/3 legislative vote before and after an election, followed by a referendum, but this procedure is reserved for amendments to the chapters on fundamental rights and the Crown.

Attorneys General–institutions matter

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Now that indictments have been announced against the (outgoing–dare I say?) Prime Minister of Israel, it is worth reviewing the institutional basis of the office of Attorney General in Israel.

I am seeing some casual takes on Twitter about why the US doesn’t have an Attorney General who takes a tougher line against law-breaking at the top of government. But the offices could hardly be more different. The US Attorney General is a cabinet appointee. The President picks who holds that position, subject only to Senate majority confirmation. Of course, Trump has had a highly compliant Senate majority throughout his presidency.

Trump could not have had occupants of the office that have been as awful for the rule of law as they have been, if the office were structured like Israel’s. So it is worth sketching how the process of appointing the Israeli Attorney General works. My source for this is Aviad Bakshi, Legal Advisers and the Government: Analysis and Recommendations, Kohelet Policy Forum, Policy Paper No. 10, February 2016.

a. There shall be formed a permanent selection committee that shall screen suitable candidates, one of which shall be appointed to the position by the government. The term of each committee shall be four years. 

b. The chairman shall be a retired justice of the Supreme Court who shall be appointed by the President (Chief Justice) of the Supreme Court upon the approval of the Minister of Justice, and the other members shall be: a retired Minister of Justice or retired Attorney General appointed by the government; a Knesset Member elected by the Constitution, Law and Justice Committee of the Knesset; a scholar elected by a forum comprising deans of law schools; an attorney elected by the Israel Bar Association. 

c. The AGI term duration shall be six years, with no extension, irrespective of the term of the government. 

d. The government may remove the AGI from his position due to specific reasons.… These reasons include, in addition to personal circumstances of the AGI, disagreements between the AGI and the government that prevent efficient cooperation. In such an event the selection committee shall convene to discuss the subject and shall submit its opinion to the government, in writing. However, the opinion of the committee is not binding, and the government may decide to remove the AGI contrary to the recommendation of the committee. The AGI shall have the right to a hearing before the government and before the committee. 

All of this makes for a reasonably independent office. Even if appointment and dismissal are still in the hands of the government, the screening and term provisions make it an arms-length relationship. The occupant of the post is obviously not a cabinet minister, as in the US, and is not a direct appointee of the head of government or the cabinet.

Worlds apart, institutionally.

And this is even before we get into the parliamentary vs. presidential distinction. A president is–for better or worse–meant to be hard to indict, let alone remove. That’s why the main tool against a potentially criminal executive in the US and many other presidential systems is lodged in the congress, through impeachment, and not in a state attorney. A prime minister in a parliamentary system, on the other hand, by definition has no presumption of a fixed term.

The normal way to get rid of a PM is, of course, a vote of no-confidence or the PM’s own party or coalition partners withdrawing support. But that’s the point–they are constitutionally not protected when the political winds, let alone the legals ones, turn against them.

In the broader institutional context of a parliamentary system, it is presumably much easier to take the step of also designing an independent Attorney General’s office that has the ability to indict a sitting head of government.

On the other hand, there is still no obvious way to remove Netanyahu from office any time soon, unless his own party rebels against him. Even though Trump’s own party will probably block the super-majority in the Senate needed to remove him from office*, the resolution of the case against Trump might happen considerably sooner than any resolution of Netanyahu’s case. Barring a rebellion by his current allies, Netanyahu may remain PM for another 4-5 months, through a now-likely third election (since last April) and the post-election coalition bargaining process.

* Assuming the House majority impeaches him, which now looks all but inevitable.

President of South Korea announces constitutional reform proposal

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South Korean President Moon Jae-in has announced his support for amending the South Korean Constitution to allow presidents to serve two four-year terms, instead of the current non-renewable five-year term. Moon, of course, came to office following the impeachment of Park Geun-hye, who became embroiled in a corruption scandal at the end of her non-renewable term: a similar fate befell her predecessor, Lee Myung-bak, who was recently arrested for a wide range of corruption charges.

Presumably, the idea behind this proposal is that it will encourage presidents to improve their behaviour at the end of their terms, given that they will be entitled to seek re-election. The proposal would also mean that members of the National Assembly would serve terms of the same lengths as the President, although elections to the two offices would not become concurrent–indeed, given that Moon’s term expires in 2022, and that the National Assembly’s term expires in 2020, it would shift South Korea to having legislative elections consistently in the middle of presidential terms.

The proposal has a number of other features. The Prime Minister will no longer be expected to act “under order of the President”, the voting age will be lowered from 19 to 18, and the President is no longer able to appoint the head of the Constitutional Court. However, there would appear to be no change in how the Prime Minister is appointed or removed: the Assembly can only pass a motion recommending that the PM or a minister may be removed, which both Samuels and Shugart (2010) and Robert Elgie have interpreted as not being sufficient for semi-presidentialism. The Prime Minister will also remain nominated only by the President (subject to Assembly confirmation).

Passage of the amendments requires approval of two-thirds of the National Assembly and majority support at a referendum with a majority turnout threshold. Moon’s Democratic Party only holds 121 seats in the 300-member assembly, and the opposition right-wing Liberty Korea Party holds 116, giving that party veto power over any potential amendment. That party appears to oppose the amendment proposal, instead apparently supporting a switch to semi-presidentialism, although the Democratic Party could block that. Moon’s proposal has greater public support, although the vast majority of the electorate support at least some change.

A reaction to “no separation of powers without divided government”

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Vox published quite an incisive article today by Lee Drutman. The title almost speaks for itself, though I would have put ‘checks and balances’ where he put ‘separation of powers’, since the point is that the latter has proven insufficient for the former to be meaningful or effective. Though the issues involved should be very familiar to most of our readers, it is worth a read, and is not long. The article’s diagnosis is very accurate, and the solutions it points to are spot on (refreshingly, confidence votes are mentioned in addition to proportional representation). Its analysis of the founders’ constitutional design intentions is, however, flawed.

First of all, the founders probably did not think the Constitution would prevent parties from forming. The authors of the Federalist Papers certainly didn’t think so. In Federalist no. 10, Madison argues that parties arise from “the nature of man”, and quite clearly states that as long as we maintain liberty, faction is inevitable: “There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects. There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests… The inference to which we are brought is, that the CAUSES of faction cannot be removed, and that relief is only to be sought in the means of controlling its EFFECTS.”

To Madison, therefore, the purpose of constitutional design is not to prevent faction or extinguish it, but to “control its effects”. In Federalist no. 10 he proposes to achieve this end through the large republic, whose size and combination of so many people with so many different interests would make it hard for a majority to materialize. In Federalist no. 51, he repeats this argument, saying “the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.” But to this he adds another mechanism: “each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.” This is the separation of powers, giving the different branches institutional independence and their own separate interests.

As Drutman rightly says, experience has shown, especially lately, that this system of incentives has proven insufficient (especially to checking the executive) when the presidency and both houses of Congress are controlled by the same party. It is hard to argue the framers did not attempt to guard against just that, especially in making the House and Senate so different from each other. The passage which Drutman himself quotes from Schattschneider is probably correct, and as Drutman himself writes, “[dividing] up power across so many competing institutions that it would be impossible for partisan majorities to form” meaning majorities of the same party in both houses along with the presidency – unified government. I don’t think the framers were so optimistic as to think their design made unified government impossible, only that it made it significantly less likely – not an unreasonable expectation. But unified government was not an unknown danger, but one of the main dangers they set out to avoid. And, as I said before, they clearly did not think their institutions would actually prevent parties, only prevent them from forming majorities.

Which brings me back to the Federalists’ first argument – that in a large republic interests would be too numerous and diverse to allow one party to form a legislative majority. This has clearly proven wrong – but the reason for this, crucially, is the electoral system. With single-seat districts, a party can win an assembly majority even in a democracy as large and diverse as India, the result of the mechanical effect of the system on seat shares. Under proportional representation, however, even very small countries rarely witness single-party legislative majorities. Whether or not increased numbers and diversity in the population also brings with it a lower chance of this occurring, in accordance with Madison’s logic, is unclear. What seems certain, however, is that under proportional representation, Congress and the system as a whole would function much more in line with the framers’ original predictions.

Greek constitutional and electoral reform update

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Constitution Net has a valuable update on proposals for reforms to the constitution and electoral system of Greece.

Alexis Tsipras and his coalition have proposed

The possibility of direct election and the reinforcement of the competences of the President of the Republic, the proliferation of constitutional referendums, the introduction of the constructive vote of no-confidence, and steps towards the separation of the church and state.

These measures have stalled. However, electoral reform is still advancing.

The SYRIZA-ANEL coalition government did, however, submit a bill on the introduction of proportional representation in Greek election law, which was approved by the Greek parliament on 18 July 2016.

The main change appears to be the elimination of the bonus adjustment. Under the Greek constitution, the law would not take effect at the next election, but only at the one after that. Unless, that is, the government calls a referendum, a path that is apparently inconsistent with constitutional provisions.

 

Turkey: referendum post-mortem

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As most are undoubtedly aware by now, the package of constitutional amendments proposed by Turkey’s government passed narrowly in the referendum two weeks ago.

I feel like my first post on the subject did not adequately cover the already deeply authoritarian background in which the referendum took place. Freedom of speech and the press have never been fully established in Turkey, and their suppression has worsened over the last decade. Moreover, since AKP rose to power in 2002, the public sector has been subjected to repeated purges, and not just since last year’s failed coup. The referendum campaign itself was strongly affected by this, and the legitimacy of the outcome should certainly be questioned. Claire Berlinski writes[1]:

“The poll took place under a state of emergency. A third of the judiciary has been fired; some are still in jail. Three members of the Supreme Election Board are in prison, too. It’s possible that they’re mostly Gülenist coup-plotters as charged, and possible that jail is exactly where they ought to be, but this doesn’t obviate the point: Nothing like an independent judiciary buttressed this referendum. In some cases, authorities prevented “no” campaigners from holding rallies and events; those opposing the motion were tear-gassed (of course), and prohibited from carrying signs or assembling, or even beaten or shot at. The “yes” campaign received vastly more publicity; its supporters were given hundreds of hours on television stations. Opponents, almost none…

Hundreds of election observers were barred from doing their jobs, and at the last minute, the election board changed the standards required to prove accusations of ballot-box stuffing. Many instances of voter fraud appear to have been captured clearly on camera. [my link]”

It is clear that many of these democratic deficits have existed for years now. Not just in terms of democratic rights or process, but also the constitutional checks and balances. As Berlinski argues, the referendum “merely legally formalized the longstanding de facto state of affairs”. Dissolution power, extensive decree powers, emergency powers – all existed already. The only difference was that they were mostly vested in the government. Under semi-presidentialism, president’s Erdogan’s position was already secure[2], but his power depended largely on being able to control the government.

In theory, under the semi-presidential system, AKP MPs (including the Prime Minister) could use their position to check the president’s power by scrutinizing the government and holding it to account. In practice, of course, they have little reason to do so. Therefore, the only situation in which the president (and the government) might be subject to meaningful check would be if the government ever lacked a majority in the Grand National Assembly – in extremis, this could have resulted in cohabitation, depriving Erdogan of control over the executive entirely.

My current theory is that AKP’s loss of its assembly majority in 2015a is what motivated Erdogan to seek a fully presidential system – completely eliminating the assembly’s confidence power over the government and vesting all executive power (plus decree powers) in the president and his agents. Now Erdogan will be secure in his position as president, as before, but his control over the executive will be secure too.

Therefore, despite this change to presidentialism (and earlier, semi-presidentialism), this democratic breakdown comes in the ‘parliamentarism’ column. Was it something inherent in parliamentarism that made, or allowed it to happen? Probably not. All else being equal, things could have easily followed much the same path.

What probably did make a difference, I think, is the electoral system – specifically the 10% threshold, which has a strong tendency to manufacture majorities[3]. At the 2002 election, the AKP came to power with a single-party majority gained off a mere 34.3% of the vote. Admittedly, at every election since (except 2015a), the AKP received more than 46% of the vote, vote shares which would have granted it majorities even in most proportional systems. But I wonder whether, under a truly proportional system for the assembly[4]:

  1. Fewer voters would have voted strategically for AKP (at the 2007, 2011, and 2015b elections), instead voting for other parties which would have been viable as a result of the lower threshold; and/or
  2. Lacking a majority from 2002 through 2007 would have prevented AKP from accruing an incumbency advantage (of any kind – democratic or not) at the 2007 election (assuming it would still have managed to form the government).

If either were true (and both seem likely to me), it is considerably more difficult to see how the party would have managed to undermine democracy and usurp power in the way it has. Without a majority, the other parties would have been able to check AKP’s consolidation of power, it would have been much more difficult for the party to change the constitution to introduce direct presidential elections (2007) or undermine the independence of the judiciary (2010), and it would have been difficult for it to force through its own choice of president in 2007. Even if the above propositions were not true, proportional representation and a multi-party legislature[5] would undoubtedly have delayed the erosion.

[1] I strongly recommend Berlinski’s account of the decline of Turkey’s democracy since 2002 (and the atrocious western response), Guilty Men: How Democracies Die.

[2] Meaning, he cannot be removed by majority vote in the assembly or by his party.

[3] Though I do not think this feature is inherently undemocratic, majoritarianism is problematic (especially in young democracies). If it is included in a system, it should always be balanced out by countervailing checks such as strong bicameralism and a well-entrenched constitution.

[4] At a minimum, this would mean a threshold reduction from the current 10% to 5%, ceteris paribus.

[5] Or a powerful upper house elected by proportional representation, especially with non-concurrent and/or staggered elections.