Italian Constitutional Reform
The “Urgent” Solution to a Non-Existent Problem
“The reform of the second part of the Constitution cannot wait any longer.” This sentence from the introductory report to the “Renzi-Boschi” Constitutional Bill (A.C. 2613 — D) could sound quite odd to an American reader. In fact, the Italian Constitution, entered into force on January 1, 1948, has been amended 15 times, and 43 of its 139 articles have already been modified. In the same period in the United States, only six amendments have been enacted (of a total of 16 amendments in 227 years, if we exclude the Bill of Rights). The Renzi-Boschi reform, on which the Italians will vote in a referendum on the fourth of December, itself changes 47 articles of 139.
If the reform is approved, the balance of powers will be redesigned. In the new Constitution, only the Chamber of the Deputies will confer a vote confidence on the government (until now, the government has had to obtain the confidence of both the Chamber and the Senate). The new Senate of the Republic will no longer be elected by the citizens, but rather selected by the regional councils from among their members and some mayors, in order to represent “territorial institutions.” This is the reverse of the 17th Amendment in the U.S., which gave American citizens the right to directly elect their senators. While the main motive for the Italian amendment was the deadlock in the selection of senators by members of state legislatures, the new procedure is far from clear. The senators are to be elected “in a proportional way,” but it is not easy to imagine how this could happen in regions that have only two senators. And the choice is to be done “in conformity with the options expressed by the voters.” How? The electoral law of the Senate will need to be a masterpiece of institutional engineering.
The legislative competence of the higher chamber will be limited to constitutional reforms, electoral and local matters, EU treaties and norms. In some cases, it will be able to propose amendments to Chamber bills within a deadline of forty days, but the Chamber will have ultimate say. On the one hand, the powers of the Senate will be downsized; on the other hand, the “simplified” system will introduce seven to eleven different legislative procedures. Last but not least, it is not easy to understand how the new Senate will be able to work: one imagines regional deputies and mayors of important cities hurrying to Rome in order to vote on fundamental issues, within narrow deadlines.
In spite of Renzi and his fellows affirming the contrary, the executive power of the cabinet will be strengthened, both indirectly, by weakening the counterbalancing powers of the President of the Republic and the Constitutional Court, and directly: if the government considers a bill constitutive of its program, the Chamber is compelled to examine and vote on it within 75 days, and the deadline for the Senate is 15 days (Article 72). Apparently, no limits will be established on the use of this fast-track besides the will of the cabinet and its chief. Moreover, the power of the regions is reduced, as the central state will reserve exclusive jurisdiction on a number of matters that had been previously devolved to the regions, and the national government will be able to invoke a “national interest” clause on others. In addition, it will be able to establish “general and common regulations” on wealth, welfare, food security, education, and research (Article 117).
Is this increase in power on the side of the executive counterbalanced? All matters concerning counterbalancing powers are so far vague, and their implementation will have to wait on statutes and rules yet to be passed in parliament. For example, the new Article 71 raises the number of signatures required to submit a bill to parliament by popular initiative, from 50,000 to 150,000. The deadlines and timeframes to discuss such bills are to be defined by future parliamentary rules. The same applies to the aforementioned possibility of proposing new bills via referendum and the “statute of the oppositions” (article 64). The 1948 Constitution attributed an important role of arbiter and guarantor to the President of the Republic. Until today he (all of them have been men) was elected by a constituency formed by 630 deputies, 320 senators, and 58 delegates from the regional councils, and an absolute majority (of the constituency, not just votes cast) was required. In the new constitution, he will be elected by 630 deputies and 100 senators (the imbalance is clear), and if no one is able to obtain such a majority after the seventh round of voting, it will be sufficient to obtain 3/5 of the votes cast (article 83).
These majoritarian effects are boosted by the new electoral law: if any list obtains more than 40% of the vote, it wins 54% of deputies. If no list obtains 40%, the first two lists compete on a second ballot. The list that wins this second ballot gets the 54% of deputies. Note that it is forbidden to form coalitions of different parties and even to establish alliances in the second ballot. That makes it possible that a list which only gets 20-25% of the voters (and how many of the citizens?) in the first ballot will end up having an absolute majority of the deputies. Moreover, all regional councils, which are to select senators, are elected according to majoritarian rules. The most likely result is a stronger control of parliament by the government.
A last point should be added. On their face, the new articles are different from the old ones. The 1948 Constitution shows a sober elegance, whereas the reformed one is filled with internal references, quotations of articles and clauses, and complicated periphrases. For example, the old Article 70 contains nine words; the new one contains 433 words distributed in seven paragraphs. The new Constitution is going to be more similar to a collection of guidelines or administrative rules than to a fundamental law that every citizen can understand. Maybe these are mere aesthetic issues, but this lost beauty may be the symptom of something more disturbing: the idea that the Constitution can become a bargaining object in everyday politics.
Why has the government so adamantly wanted this reform, pressing an illegitimate parliament — elected by an electoral law rejected by the Constitutional Court (decision 1/2014) — to assume an inappropriate function? Why is the government trying to approve the Renzi-Boschi Bill by resorting to institutional tricks? Is the Italian parliament really so lazy and unproductive, as they claim? And is the cause of this laziness Italian “perfect bicameralism,” which, proponents of reform keep claiming, has no equal in the international landscape? One could first respond that they have forgotten about the American system’s bicameralism. But above all, one could remind them that, during the present term, the Italian parliament has passed an average of 5.55 statutes and 11.67 acts per month — not so bad. Is Italian executive power really so weak, as they claim? One must consider that the government can currently propose bills, and pass decrees which immediately enter into force and which the parliament has to ratify within sixty days, not to mention the continuous resorting to votes of confidence, which stop the parliamentary debate on bills. Today 82.5% of the approved statutes are initiated by the government, which is also frequently delegated by parliament to formulate decrees in order to give specific legal content to framework legislation. All of these governmental powers will remain unchanged under the new Constitution. It is true that the new Article 77 establishes some limits to the government’s recourse to the above-mentioned constitutive bills, but this is the mere synthesis of a series of decisions by the Constitutional Court: nothing is really going to change.
In the history of the Italian Republic there has been a long series of attempts to transform its institutional framework. Some of these attempts were carried out by subversive conspiracies, to be realized via coups or the pervasive informal influence of covert networks such as the P2 Masonic Lodge (of which Silvio Berlusconi was a member). Increasing the executive power has always been a typical demand of right-wing parties, but after the mass movements in the sixties and seventies, “governability” became a key word in the program of Socialist Party Bettino Craxi’s government and then gathered support even among the left wing as well. Later, the right-wing coalition led by Berlusconi tried several times to change the Constitution: its last attempt to increase executive power and the power of the Prime Minister in particular was uproariously defeated in a 2006 referendum. So, why are Italian citizens being called on to vote for a similar proposal, again?
The answer can be found by reading the introductory report. It mentions “the need to adequate the domestic legal system to the recent evolution of the European economic governance […] and to its cogent budget rules” as well as “the challenges coming from the internalization of economy and the changed context of global competition.” The principle of balanced budgets, introduced into the Constitution in 2012 with the amendment of Articles 81, 97, 117, 119 — and which, more or less, made Keynesian economic policies unconstitutional — was apparently not sufficient. An “organic process of reform” is needed.
I do not intend to claim that there is not a serious problem to be faced. We are living through a general crisis of democratic political systems, which are losing power and control over a globalized economy and the transnational financial system. In this context, it is essential to reinforce the political system’s capacity to implement effective solutions — its grip on effective reality. But all of this should be done in order to achieve an acceptable level of democratic responsiveness and the safeguarding of rights. The Renzi-Boschi reform seems to pursue a quite opposite end. In fact, in May 2013 a report by a think tank of JP Morgan bank affirmed that in the “southern periphery” of the EU, “constitutions tend to show a strong socialist influence, reflecting the political strength that left wing parties gained after the defeat of fascism.” So: “weak executives; weak central states relative to regions; constitutional protection of labor rights; consensus-building systems which foster political clientelism; and the right to protest if unwelcome changes are made to the political status quo.”
Against the awful media campaign launched by the Italian establishment, the referendum of December 4th can become an opportunity for the expression of this “right to protest.” Since this will still be possible.