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Popular Constitutionalism: the danger of playing politics with institutions.

Martin Caforio

On the 20 and 21 September, despite the ongoing health risks associated with the COVID pandemic, the Italian electorate will be called to the polls. On top of a series of important regional elections, the government has also asked Italians to vote in a Constitutional referendum whose result is bound to change the nature of Italian national politics for years to come. Voters are being asked to approve an attempt to reduce the size of the Italian parliament–which is codified in Articles 56 and 57 of the Constitution–from its current size at 945 elected members, to a more ‘reasonable’ 600. On the surface, this seems like a straightforward–and perhaps even logical–constitutional reform. The proponents of this reform argue that Parliament is too big, too expensive, and too inefficient. However, this reform is in reality the natural extension of a dangerous trend in the Italian parliamentary dynamics of the republican era; that of politicising the composition, election of, and, with this referendum, size, of the national republican institutions. Indeed, using parliamentary majorities to advantage one’s own political factions in subsequent elections has become so ingrained in the mentality of Italian Legislatures that it often feels as though an intense review and revamp of the electoral system of the Republic is one of the formal constitutional duties of its Parliament.  

This referendum indeed represents the highest and perhaps most crass iteration of this culture of so-called reform; it seeks to take advantage of the relatively easy process for amending the Italian Constitution for populist and dangerous changes aimed in large part at entrenching the ruling class in their positions of power. But the danger does not only lie in reducing the number of parliamentarians, but also in continuing to normalise and assent to the role that political parties and members of parliament play in moulding the electoral system and the Constitution to advantage their own factions. This betrays one of the highest principles of Constitutionalism: the idea that the core institutions, formalised in a Constitution born out of a deliberative process between factions, should be separated from and uninfluenced by the various political trends of party popularity, polling, and backroom deals between leaders and officials. The Chamber of Deputies and the Senate of the Republic are not government coalitions; they are the institutions created by the 1947 republican constitution, and their most basic functions, modes of operation, and composition should be protected. In that spirit, a comparison with the United States’ constitutional amendment process will provide a stark and fruitful contrast with the Italian system and a defence of the apolitical nature of constitutional and institutional design.  

Since 1993, the Italian Republic has held elections with three different voting systems, each with its own mix of proportional and majoritarian systems, as well as different rules on voting districts, lists, and majority bonuses for winning parties. A fourth electoral law was also passed, but it was deemed unconstitutional before it could be tried out. In 2018, at the time of the last parliamentary elections, the system in place was called Rosatellum bis (named after Ettore Rosato, its author) and it operated as a mixed system, with 37% of seats assigned on a majoritarian basis—the winner in a single-member district would be elected—and the rest based on proportional results in multi-member districts. Lastly, party lists need to obtain 3% of the national vote to receive any seats in parliament. At the time of writing, the XVIII Legislature is debating another change, this time towards the electoral system dubbed Germanicum for its similarity to the German electoral system. In this law, all seats in both chambers (except for Deputies and Senators elected in the Aosta Valley region and those elected by Italians living abroad) would be elected by a proportional basis, with only parties achieving 5% of the vote or higher receiving any seats in either chamber. It does, however, allow for parties who reach the 5% threshold in 3 electoral districts in at least 2 regions to bypass the national threshold requirement. 

If this all seems complicated, it’s in part because it’s a law inspired by the German electoral system–which doesn’t even have a fixed member of seats each election!–but also because it is the result of the nature of reforming voting systems as politico-legislative, and not institutional, projects. This is the fundamental issue: the laws which govern how Italians are represented in Rome are not dictated by any constitutional or institutional theory of government and representation, but by political parties’ sheer self-interest and attempts at securing a greater share of the political leverage the next time that Italians are called to elect a parliament.  

At this point, there are two principal procedural problems to discuss. First, the relatively easy process of changing voting methods, which in essence simply requires an ordinary legislative action from Parliament; it’s no different to passing any other law. The legislative process is governed by Section II.2 of the Constitution, which grants legislative authority to the two Chambers of Parliament, and the power to introduce legislation to the government, individual MPs, or the people—by petition. The Parliament then scrutinises the proposal, first in one or more parliamentary commissions, then as a full chamber, voting on each article and then on the whole proposal. Furthermore, Article 72 stipulates that ‘the normal examination and approval procedure carried out by the Chamber is always adopted for law proposals in constitutional and electoral matters’. While the Constituent Assembly which drafted the constitution purposefully granted power to political forces to change the method of election by stipulating that the ordinary legislative process must govern these changes, its effect has been to render political a matter which should be deeply institutional and not subject to the political leanings of any particular legislature.  

The second problem regards Article 138 of the Italian Constitution, which dictates how changes to the document can be made. When the document must be changed, too, the Parliament plays a major—if not total—role in the process. There are a few ways of amending the document as laid out in Article 138: a change must be approved by a supermajority of both Chambers after two deliberative sessions which must not be closer than three months apart; if Parliament fails to pass the change with a sufficient majority, or if 500,000 citizens or 5 Regional Councils request it, the change is put to a popular referendum and it will be approved if a simple majority of valid votes are in favour. This process squarely places the bulk of constitutional amendment powers in the hands of the national legislature. 

This opens up two significant issues. Either there is a broad political consensus in the parliament to approve a change, in which case parliament is the only institution to have any input on changing the constitution, or the only other significant ‘institution’ involved becomes the electorate through a referendum. This in turn is problematic because it turns a constitutional change into a political campaign, where complex institutional issues are simplified into slogans, and the risk of descent into populistic discourse surrounding the nation’s most important document looms large. As is the case with this month’s vote, the factions in favour of this change have long spun this proposal in a populist way, citing significant budgetary savings (in reality, just 0.007% of the national budget, or as No campaigners like to point out, the price of a cappuccino in yearly savings per capita) and removing the ill-functioning elements of Parliament. And so, what started as a political project in a populist party’s (the MoVimento 5 Stelle, or 5 Star Movement) programme has reached the point where an important constitutional question which would reduce Italians’ representation in Parliament is being decided on in a similar way as one votes for a candidate or a party. This is not to say that the people should play no role in amending the constitution—after all, it was the Italian people who drafted it in 1946/1947—but rather that when the process of amending such an important document is placed within the political sphere rather than the institutional one, this allows the most sacred republican document to be used for political ploys and by power-hungry party leaders concerned with their approval ratings and any political change they can harness to obtain and maintain power. 

While no constitution is perfect, the founding document of the United States illustrates the purposeful separation of the institutional from the political. The U.S. Congress plays a crucial role in the amendment process, too; however, this process also involves great consensus-building from another key institutional player, the various States. In fact, the U.S. Constitution may only be amended with a large majority in both Houses of Congress and when a large majority of States ratifies the change, either through their individual legislatures, or through a convention of states specially convened for such a purpose. But there is also a further difference which highlights a significant shortcoming in the Italian constitutional amendment process: the framers of the U.S. Constitution explicitly separated the legislative powers of Congress, enumerated in Article I, from their constitutional amendment powers, detailed in Article V. The latter article specifically deals with the Congressional amendment power, which is institutionally but also physically (in the document) separated from Congress’ legislative powers; this indicates that the Founders clearly saw the two processes as distinct ones, which happened to be undertaken by the same body. Congress’ amendment role ‘should be considered not an extension of the legislative power’, says Alexander White, ‘but a different power that happens to be exercised by the same deliberative body’ (1053). In Article 72 of the Italian Constitution, however, Parliament is explicitly required to employ an ordinary legislative process when it comes to constitutional matters: the Parliament is acting as the legislative, political body even when it comes to institutional matters.

 Additionally, the U.S. Congress is not the only institution which has a role to play in the amendment process, considering that any proposal must reach broad consensus amongst the States as well. Finally, unlike in the legislative process, the executive—that is to say, the president—has no role in the amendment process. Here is a key distinction in this constitutional debate: amending the constitution can be deliberated upon and carried out by a national legislature, but not only should it be done in consultation with other important institutional players, it is also textually and therefore should also be practically separate from the politics of that same legislative body.  

This is not, of course, to say that constitutions or voting systems must never be changed. Nor that politics in any way never plays a role in amending the Constitution in the U.S. Nor even that its amendment process is perfect or does not often prevent good changes from being made. Rather, it is to say that any change must be purposeful, studied, debated, and removed from the daily pushes and pulls of politics as usual. Just as the latest Ipsos poll should not play a role in how the governing coalition in Rome designs the next electoral law, populist promises should not go to dictate the size of the Parliament of the Italian Republic. What is most concerning, then, is that these changes are currently located in the realm of the political, the legislative, of the trends of the moment. They are not located in the institutional, the philosophical, and the carefully articulated. Again, both the Constitution and the electoral system should be allowed to change, but these changes should be dictated by some philosophy or theory of how a parliament or elections ought to work, who should sit in the deliberative body, and what its functions must be for the best possible functioning of the democracy. There must be some well-rationalised, deeply researched, almost theoretical reason for these decisions; reasons which must form one part of a broader constitutional and institutional culture which run through a nation’s entire set of governing institutions. 

For example, former Italian President of the Council Matteo Renzi proposed a constitutional change that was voted down in a referendum that toppled Mr. Renzi’s government. This was a deeply unpopular change that would have completely altered the composition of one of the two chambers of the parliament, the Senate of the Republic. Mr. Renzi wished to move away from Italy’s perfect bicameralism, towards a Senate which undertook fewer legislative responsibilities, and which acted as a body to represent the “territorial institutions” of Italian public life, namely Regions, as well as the European Union. While there is ample room for debate over the substance of this idea—and as those with their finger on the pulse of Italian politics circa 2016 know, there was plenty of heated arguing—and the Italian people eventually rejected this change, Mr. Renzi’s proposal was at least marked by a change in philosophy of government that warranted an alteration to the Constitution; it had a clear purpose that was coherent with a certain set of principles that he and his allies believed would improve the nation’s governance. Unlike this proposal, the elimination of MP’s does not carry with it any such change in philosophy of governance, nor any clearly articulated reason other than meagre savings and a capitalisation on popular sentiment to further entrench the political class into their seats at Montecitorio and Palazzo Madama (the palaces which house the Chamber and House, respectively).  

On the 20th and 21st of September, the Italian electorate is likely to approve the reduction of MPs. Polls continue to show significant margins for the Sì (Yes) side, with not much time left for the No camp to make up the support needed. The change’s proponents will rejoice, they will point to it as a major achievement in their campaign to save Italians’ tax money and to make their institutions work better. The savings will be small, and little will change with regards to corruption, functionality of institutions, and the operations of the Italian state. Subsequently, parliamentarians will likely change the electoral system again, deeming that their faction will be better off under that system than under the current one. In the meantime, no real structural reforms will have been made, Italians will fall to the bottom of the European chart in terms of national representatives per inhabitant, and the attention of many will move away from accountability, thinking the job is done. The smaller Parliament will keep younger politicians out of its chambers and further turn politics into a profession designed for those who have power and wish to hold on to it at all costs. But, perhaps even worse than this, Italy will continue down the rabbit hole of playing with its institutions as if they were political tools to be leveraged for power, rather than truly valuing them as the highest iteration of its republican aspirations. There is perhaps a certain irony in hinting at a constitutional change to fix the problem of the ease with which the constitution is changed, of course, and it is unlikely that such a reform has even been considered. And while no constitution is perfect, and no mechanism in politics is immune from power and greed, it is nonetheless a disappointing trend to observe.  


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