15 November 2023

Between Recalibration and Distortion

Meloni's Imperfect Reforms

In its current form, the project to change the form of government that the Italian government headed by Ms Giorgia Meloni is preparing to present to the Senate seems difficult to accept. The project claims to address the issue of unstable and short-term cabinets in Italy (65 in 75 years, one every 12 months from 1948 through 1994 when a new electoral law was applied; still one every 21 months thereafter). Unfortunately, it is both poorly drafted and contains contradictions that make it not only impracticable but of dubious functionality with respect to the very objectives it proposes to achieve. However, as it has been decades since the problem the draft says it wants to tackle has been acknowledged, I shall assume its proponents’ good intentions and suggest how the text could be improved. Below I briefly describe the project, trace its distant and recent origins, indicate what it is lacking and how it should be changed.

The Proposed Reforms

Drawn up by the Minister for Institutional Reforms, Ms Casellati, the draft provides for the direct election of the President of the Council (Italy’s equivalent of a Prime Minister and hereafter referred to in these terms), at the same time as the election of the two chambers of Parliament. Together with a provision that allocates a 55% majority of the total number of parliamentary seats to candidates linked to the elected candidate-Prime Minister, the desired effect is to strengthen the Prime Minister’s office. At the same time, the project retains the name ‘president of the Council’ (not ‘Prime Minister’) and almost all the current constitutional provisions regulating the vote of confidence, including the initial one, which remains vested in both Chambers. Undifferentiated bicameralism is not touched. It is evidence that, following the example of the last legislature, the right-wing majority appears to eschew a wholesale constitutional reform, preferring instead to undertake constitutional revisions institution by institution. In order to pretend not to touch the powers of the President of the Republic, the current provision according to which the President has the power to appoint ministers (albeit at the proposal of the Prime Minister) is also maintained. Dissolution remains formally a presidential prerogative. It would, however, be exercised less freely than it has been in recent decades.

In this respect, the draft proposes the adoption of the so-called simul simul clause. This mandates the dissolution of the representative assembly once the directly elected Prime Minister ceases to hold office, either through a vote of no-confidence or resignation and triggers simultaneous elections (simul stabunt simul cadent: they hold office together or together they fall). There are, however, two exceptions. When the first government of the legislature is formed and the Prime Minister does not obtain a vote of confidence in their government, they may stand a second time before Parliament before dissolution. During an existing legislative period, in the event of a vote of no confidence or if the elected Prime Minister resigns, the President of the Republic may reappoint them or even appoint another MP elected in conjunction with the outgoing one, thus forming a new government that both parliamentary Chambers must vote in favour of (by simple majority). If this second government does not obtain the vote or ceases for any reason, the automatic dissolution of both Chambers follows. Thus, paradoxically, the Prime Minister at the head of the second government of each legislature would in fact have the power to determine the dissolution of the Chambers, unlike the first, directly elected one.

A Regional Model for the National Level?

Meloni’s proposed reform closely resembles the one adopted in Italy’s municipalities in 1993 and in regions in 2000 that was designed to increase governmental stability and continuity. These followed a proposal originally advanced by the French constitutionalist and political scientist Maurice Duverger in 1956. He proposed the direct election of the prime minister to occur simultaneously with the election of the political assembly. This idea was relaunched in Italy by the constitutionalist Serio Galeotti and taken up first by Augusto Barbera; later it was formulated in detail in 1997 by the Committee on the Form of Government of the third and last bicameral Commission for Constitutional Reforms. The proposed model combined elements of both parliamentary and presidential systems: while the Prime Minister is directly elected, there is no separation between executive and Parliament and Parliament retains the power to dismiss the Prime Minister at the cost of its dissolution.

In Italy, under the impetus of the reformers of the early 1990s, between 1992 and 1999, this variant of the Duverger model was adopted at the sub-national level. I am referring to the direct election of the mayor (and, as long as it existed, of the president of the province), and the direct election of the presidents of the regions. These were the most successful reforms of the last few decades that guaranteed stability and accountability before the citizens of municipal and regional governments. In contrast to the original French model, the election of mayors and presidents takes place not only at the same time as the election of the council, but the two electoral processes are integrated with each other. This ensures that the political forces that support the winning candidate obtain a majority in the representative assembly, by assigning a ‘prize’ in seats, at the expense of the proportional distribution based on the votes for the single lists. The assembly retains the possibility of a vote of no-confidence against the elected mayor or president. However, this comes at the price of provoking new elections for both the executive and the council through the application of the simul simul formula. This operates as a formidable stabilising mechanism that makes dissolution exceptional. In fact, since it was introduced, at the regional level, 85% of legislatures have lasted all five years established by law (at the national level only 50%) and the average executive has lasted 50 months instead of 17 (at the national level the average has been 20 months since 1994). At the municipal level, the percentage is even higher.

Indeed, it is why Meloni’s proposal is sometimes described as an attempt to introduce a ‘mayor of Italy’: it reflects the idea of extending the municipal and regional model, in its main features, to national political institutions. However, there are difficulties with this move. In particular, at the national level, the office of the Presidency of the Republic exists which is distinct from the Prime Minister that does not exist in the municipalities and in the regions.

An Incomplete and Insufficient Recalibration

The Casellati-Meloni project has obviously provoked waves of reactions. Some totally negative by those who contest the very need to strengthen the executive (a significant minority) and above all are radically opposed to any form of direct legitimisation by the electorate. Others believe that the direct election of the Prime Minister would unduly weaken both the role of the President of the Republic and that of Parliament. This would distort, according to some, the Italian parliamentary regime. This is a crucial point. Contrary to what the reform proposal implies, it is impossible to seek a more stable and stronger executive and expect the other constitutional bodies to keep all their prerogatives intact, both those provided for in the Constitution and those established by practice over time.

The President of the Republic is an obvious example. The presidential figure has been considerably strengthened in recent decades, well beyond the letter of the Constitution and the expectations of the constituent fathers. So much that some believe it advisable to elect him directly in order to combine the office’s legitimacy and responsibility. Over the years, the President has acquired the role of crisis manager, which has been justified through a ‘useful loophole,’ namely idea that the President is a ‘guardian we cannot do without’ (Italy’s nanny as the Economist wrote). If the President is to retain this role, then there is no room for a stronger Prime Minister. Any innovation in that direction can only downgrade the role assumed by the Presidents of recent decades (even beyond the text of the ’48 Constitution). The same applies to Parliament: if its strength is perceived to lie in the power of a wide plurality of parliamentary groups (i.e. parties) to make and unmake majorities and governments with the least possible constraints, it is clear that any legal (and not only political) innovation aimed at giving stability to the executives will be considered an undue downsizing.

Almost all observers, then, even the best disposed, have criticised individual provisions of the government text, considering it in contradiction with the government’s declared intention because it is destined to strengthen not too much but too little the figure of the Prime Minister. After all, while the Prime Minister would possess direct popular legitimation, they’d lack any additional powers compared to those it already has. In particular, many criticise the fact that – in order to pretend not to touch the role of the head of state – neither the appointment and dismissal of ministers nor decisive power in matters of dissolution is attributed to the Prime Minister.

Finally, much criticism has been levelled at the references in the draft to electoral law. Some consider it inappropriate to codify electoral law in the Constitution. Others oppose that there are only a few elements of the electoral formula that are being regulated such as the prize, its size, the single ballot paper. Among other things, it is not clear whether there are even plans to elect the two chambers with a single ballot paper. At the same time, there is no provision for a minimum threshold of votes, as prescribed by the Court in its recent case law on electoral laws, nor for a possible recourse to a runoff if this is not reached.

Improving Italy’s System: Some Suggestions

There is, in reality, no need for the direct election of the Prime Minister to address Italy’s current governmental problem. A viable alternative would be the electoral indication of the Prime Minister, whereby each candidate stands for a party and for a candidate Prime minister. It is possible, for example, to take up the proposal approved in 2015 and never applied, the so-called Italicum, albeit with the corrections imposed by the Constitutional Court which mandated a minimum threshold to earn a majority and a run off if the threshold is not passed. Together with granting the Prime Minister the powers that are in any case indispensable such as the power to appoint and dismiss ministers, the power to dissolve Parliament, at least in certain circumstances, such a system would be less rigid and yield more governmental stability.

In the likely case, however, in which Ms Meloni and her majority insist on direct election (after all, this is what they promised the voters), the following changes are necessary to make the reform sufficiently coherent and functional. First, the initial vote of confidence should be eliminated as it is superfluous and indeed potentially harmful. Further, the derogation from automatic dissolution in the event of no confidence in the Prime Minister should be removed. It provides an incentive to party manoeuvring and produces unacceptable contradictions. This could be replaced with a rule that allows, if necessary, for the formation of coalition governments (the like of a Grosse Koalition). However, this should be voted in office by Parliament with a majority of 60% or two-thirds of its members. This would not be a reversal of the will expressed by the electorate because it would require the consent of a large part of the majority of the outgoing president. Third, the directly elected premier should be attributed the power to appoint and revoke minister and to determine the government’s political direction (as is the case in Germany). Fourth, the references to the electoral law along with the simultaneous introduction of an appropriate electoral law proposal should be rewritten to include a threshold for the award of the extra seats and a runoff ballot when this is not reached. Fifth, a further stabilising rule that provides for incompatibility between ministerial and parliamentary office should be introduced. Finally, a term limit of two full terms of office should also be taken in serious consideration.

In any case, the road to reform remains uphill, keeping with established Italian tradition.

SUGGESTED CITATION  Fusaro, Carlo: Between Recalibration and Distortion: Meloni's Imperfect Reforms, VerfBlog, 2023/11/15, https://verfassungsblog.de/between-recalibration-and-distortion/, DOI: 10.59704/1307ddbf2cccdf13.

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