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The Human Rights Chapter

One aspect of the constitution that has been expanded substantially in the council’s proposal has to do with the rights of citizens. While noble in their aims, these proposals strike me as unnecessary at best and troublesome at worst. Why?

 

Why unnecessary? Well, none of the rights included in the amendments strike me as controversial – these are more or less things that all icelanders believe are rights already (if this was the US constitution things night look a little different). So really this is just fluff…more or less. And pretty harmless as such. So if it makes is feel good about ourselves, why not include these amendments?

Well, some of these can actually be seen as being closer to policies than rights. Like the right to free education.  The proposed section, Section 24, in rough translation, is:

“Everyone shall be guaranteed by law the right to general education and instruction suited to them.

Everyone subjected to compulsory schooling, shall receive the opportunity of receiving free education.

Education shall aim at everyone’s general development, critical thinking and awareness of human rights, democratic rights and responsibilities.”

Now, you and I may agree that this is in general a good idea.  But it is not inconceivable that future generations may think differently – they may come to the conclusion that the private sector is better at providing education, that paying for education creates elicits more effort from students (or their parents), etc.  Maybe it is a crazy idea that future generations might think differently.  But if that is the case then there really is no need to include the clause in the constitution.  The point is that either  the proposal ties the hands of future generations, i.e., in the future a minority will be able to hold on to the right of free education even if a large majority prefers a different form of educational provision, or it doesn’t matter at all.  The section is not only about the right to education, it is also about how that education is delivered.  In my view these should be separated.  The right to education should be guaranteed (probably) in the constitution but how it is delivered should be left up to the government, or the people, at any point in time.

I’ve only picked on education here as an example – similar arguments can made about several other clauses in the constitution. And, for the record, I do think education should be free.  I just don’t think it is something that belongs in a constitution.  Overall, I get the sense that not enough thought has been given to what belongs in the  constitution, i.e., what really constitutes rights – things that we really believe future governments shouldn’t be allowed to change without much difficulty, and what doesn’t, i.e., general public policies.  A constitution that limits the choice of future generations to change policy doesn’t strike me as terribly democratic.

A second issue with Section 24, and many others, is that it makes a reference to laws that are supposed to spell out in greater detail the rights of citizens or the implementation of those rights.  Now, I may sound like I am contradicting myself here, since I just argued that these things should be determined by regular laws.  However, the things to be provided by regular law often seem quite fundamental, e.g., “Everyone shall be guaranteed by law the right to general education and instruction suited to them” sounds very much crucial to what the right to education constitutes.  That is, a regular law will presumably spell out what ‘general education’ and ‘ instruction suited to them’ means.  To me, ‘general education’ could mean something as little as reading and writing.  What on earth does ‘instruction suited to them’ mean?  Who determines what instruction suits me?  Can I sue the government if I receive education that I don’t think suits me?  I’m not sure whether vagueness of the section renders it meaningless or if it will result in a slew of lawsuits centered on whether the law is constitutional, i.e., whether the government is indeed providing ‘general education’ and ‘suitable instruction’.

Many of the sections in the chapter on human rights share these characteristics: Sections 11, 12, 13, 14 (to some degree), 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 25, 27, 33, 35, and 36 all rely, to a varying degree, on legislation to both further define the rights being addressed and how they are to be protected.  I’ll happily concede that in some of the cases this is probably a minor issue but in some instances I’m not so sure.  So in sum, at best,I think the majority of the clauses are largely meaningless.  At worst, I think they may cause some real problems in the future and, as a result, they will serve to strengthen the judiciary, which will be called upon to rule on the constitutionality of the government’s legislation.  And, because, these sections tend to be fairly vague, the judiciary will have considerable leeway to interpret them as it sees fit and in effect make public policy in areas such as education and health.  That doesn’t strike me as very democratic.

A couple of things that I’ll just mention briefly.  First, I have assumed in the above that there is a neat distinction between ‘rights’ and ‘policies’ and that the former belong in constitutions and the latter don’t.  Whether such a distinction really exists, I don’t know – not all of the human rights here have always been considered human rights.  Maybe the only difference between the two is that there is a general consensus about ‘rights’ but not (necessarily) about policies.  I don’t know. I’ll leave that to the political philosophers.  Second, many constitutions have promised a number of rights, e.g., the right to education, that the state has not been able provide.  One may worry about the effect of constitutions promising more than the state can feasibly deliver, i.e., if the constitution is violated and nothing can be done about it, might that not undermine the legitimacy of the whole document?  Now, Iceland is a wealthy country that is perhaps less likely to run into such problems than many of the countries that have found themselves in such situation but, still, Section 23 promises “Everyone shall be guaranteed by law the right to the best mental and physical health possible” (“Allir eiga rétt til ađ njóta andlegrar og líkamlegrar heilsu ađ hćsta marki sem unnt er”).


Size of Parliament

In an article on visir.is, Ţorvaldur Gylfason, a member of the constitutional council, argues that the size of parliament should be reduce from 63 to 53 seats.  Ţorvaldur, a former colleague at the University of Iceland, had actually asked me to put together a short summary about research on the size of legislature before the Supreme Court invalidated the outcome of the election to the Constitutional Assembly – at which point I put the matter aside and then, apparently, forgot about it.  Ţorvaldur’s article was a timely reminder so here are my two cents.

In short, not a whole has been written about the size of legislatures and much of it focuses on the effects legislature size on government spending.  Most research finds that larger legislatures spend more.  The argument is that individual legislatures are concerned with winning election and in order to win election are more likely to propose pork barrel projects to build a personal vote base.  In addition, larger legislative size makes pork barrel projects cheaper as the deliver target benefits while the costs are distributed more widely (greater number of districts).  A lot of this literature is focused on the U.S. where the conjecture appears to be supported by the empirical evidence (in unicameral legislatures). Mukherjee (2003) does find the same effect in a cross-national study.  As pork barrel politics appear to have been fairly important in Iceland historically and the preferential votes system is not likely to reduce those incentives, reducing the size of Althingi can be expected to reduce government spending (which may or may not be a good thing depending on one’s political leanings).  On the other hand, Primo and Snyder (2005) work suggests that the type of spending that is affected are, as the argument above suggests, inefficient pork barrel projects, which are less controversial.  However, that depends a lot on what the electoral system will look like – pork barrel projects may very well benefit the rural areas, which traditionally have been overrepresented in Althingi.  That said, even under a  preferential voting, it seems quite plausible that legislators/candidates will seek to carve out ‘strongholds’ even if the country is a one electoral district.

There is no question that Iceland’s legislature is large given the country’s population – there are roughly 5060 citizens for each legislator.  Only Tuvalu, Andorra, and Antigua and Barbuda have fewer citizen per legislator.   One implication of this is that under the preferential vote system shaking hands and kissing babies (hopefully they will stop short of kissing chickens as Irish politicians have been known to do) really looks like a feasible strategy.  Randomly looking up MPs, I found, e.g., that Helgi Hjorvar has 2407 friends on facebook – surely that is enough to get elected under the preferential system.  Reducing the number of MPs from 63 to 53 is, however, unlikely to make much of difference – it increases the number of citizens per legislator by slightly less than thousand.  Thus, under the preferential system, shaking hands, doing favors and providing pork would remain a feasible strategy unless a much larger reduction in the number of legislators was undertaken.

However, at 63 legislators, Althingi is already a small legislature.  A lot of the discourse about the reform has focused on strengthening Althingi – although I think that discourse is in large part based on rather strange ideas about parliamentary regimes.  Leaving my skepticism aside, the literature on legislature frequently cites strong committee systems as an important, if not the primary, source of legislatures’ power vis-a-vis the executive.  One strand of those arguments focuses on institutional powers (ability to amend bills or kill bills in committee – which often are absent or dominated by party discipline in parliaments).  Such institutional powers are not likely to be affected by the number of legislators.  Another strand of arguments about the importance of legislative committees focuses on the opportunity that permanent legislative committees offer MPs to specialize.  As it stands there are 12 permanent committees composed of nine MPs each (11 for the the budget committee).  Thus, on average, each MP serves on 1.74 committees.  That seems quite a lot to me and I am skeptical that this allows MPs to become specialists in any policy area.  Reducing the number of MPs by 10 would increase that to 2.07 committees per MP, which certainly won’t help matter.  All in all, if one considers the committees the way to increase parliament’s influence, I think there is a strong case for increasing the number of MPs.

Parliament’s role is not just to legislate – it is supposed to provide oversight.  One might argue that Althingi failed spectacularly in its oversight role in the years leading the the economic crash in 2008, which in no small part pushed the constitutional reform forward.  Despite being charged with protecting the interests of its citizens, not a single MP (save one minister) thought it necessary to resign.  The question is why Althingi didn’t take its oversight role seriously.  While I don’t know the answer to that question, a part of the problem has to do with Althingi’s resources – including the number of MPs for the reason cited above.  If Althingi is to have any real influence on policy or be able to exercise oversight it needs to have the resources to do so – meaning that either it needs to provide the right conditions for MPs to specialize in policy or vastly expand (establish?) Althingi’s research capabilities.  The problem with Althingi is not that it is too expensive but that it is too cheap.

There are also some other issues that need to be considered.  Ministers have, nearly without exception, been drawn from the legislature.  That is, the legislature is effectively the talent pool from which ministers are drawn.  What are the effects of shrinking the talent pool?  Supposing there are 10 ministers (as proposed by the constitutional council) then nearly two-fifths of the MPs of the governing parties (assuming a narrow majority) are become ministers.  Frankly, I find that a little worrying.  I’ll quote (a great quote) from Dewan and Myatt (2008) about ministerial selection in the UK:

“Paxman (2003, p. 209) recounted that Tristan Garel-Jones, a whip in a United Kingdom government of the 1980s and a close confidante of Prime Minister John Major, recalled scanning a list of fifteen candidates for a junior ministerial post and thinking

“I wouldn’t employ a single one of them. The problem was that, if you include all the various ranks of ministers, you have to find maybe ninety people to form a government. You have perhaps 350 or so people to choose from. Once you’ve eliminated the bad, mad, drunk and over-the hill, you’ve got rid of a hundred. You then have to pick ninety people out of a pool of 250. Is it any wonder that the calibre is so low?” “

Changing the number of MPs is also likely to affect the number of parties (thought how that pans out depends on the electoral system) – most likely reduce the number of parties and raising the barrier of entry for new parties.  That brings us back to the size of government.  Mukherjee (2003) finds that the number of parties in the legislature has a positive effective on government spending and others have shown that the number of parties in government also increases government spending (Bawn and Rosenbluth) but greater legislative fragmentation should lead to larger coalition governments (i.e., more parties).

In sum, I can see arguments for and against reducing the size of Althingi – in the end I think it depends on the role one wants Althingi to play.  However, I think a lot more research is required to offer a conclusion answer.  As it stands, we actually know fairly little about what members of Althingi do.  For example, how important are the legislative committees in the current system?  How much does Althingi amend legislative bills?  Are these amendments substantive or are they primarily cosmetic?  How important is pork barrel in Icelandic politics?  Making an informed decision actually requires answering these questions – and ideally not just rely on our hunches about what the answers might be.

 

For references: See Required Readings

Some additional notes on related readings.  Stigler (1976) is one of the early studies of legislature size and its consequences.  Lowenberg (2007) discusses how different conceptions of representations have implication for the choice of the size of the legislature.  Gilligan and Matsusaka (2007), Primo and Snyder (2005) and Chen and Malhotra (2007) provide evidence for the positive relationship between legislature size and government spending in the U.S.  Mukherjee (2003) shows that legislature size and the number of parties increase government spending.  Ricciuti (2004) also examines government spending cross-nationally and fails to find evidence for a relationship. Nadia Fiorino and Roberto Ricciuti (2007) find a large effect of legislature size on per capita regional government spending in the Italian regions. Rasmusen and Ramseyer (1992) examine the relationship between size of legislature and bribes.


Counselling the Council

The constitutional council claims to have  consulted a number of experts in coming up with its proposals.  I was curious to find out who these experts were since I had offered the council to help them find experts that might be able to provide useful advice – having spent years studying political institutions I have gotten to know a number of the leading scholars in the field, some of which have been involved in similar efforts at institutional reform and many of which would have been happy to give their advice if approached.  Needlessly to say, the constitutional council didn’t take me up on my offer.  The council’s website lists the experts who have been consulted.  I can’t say that I was surprised.

If I have counted correctly, the council sought the advice of experts a total of 21 times.  In twelve of these cases, the expert was a lawyer (the same lawyer was consulted in four of these cases, another one in three of them).  In seven cases, the expert consulted was a ministry. The secretary of Althingi’s budget committee was consulted once.  And in one case a political scientist was consulted.

So while I don’t know what kind of experts the people preparing the responses for the ministries were or if the council sought the advice of other experts informally, I think it is fairly striking that only in one instance did the council see fit to consult a political scientist.  And even in that instance, the choice of an expert seems a little odd – the council sought comments about the section on parliament and parliamentary procedures and the chosen expert is, primarily, a political historian who, as far as I can tell, hasn’t done any work on parliaments.  That’s not to say that his comments shouldn’t have been sought but it is difficult to see why this expert was chosen over other Icelandic (or foreign) political scientists who have studied parliaments.  But I shouldn’t complain – at least there is one political scientist.

I have complained the about role of lawyers in the process – I won’t repeat my argument here but I think the fact that over half the experts are lawyers  is a cause for worry.  To be clear, I think lawyers should be involved – I just don’t think only lawyers should be involved.  The results aren’t entirely surprising. Looking at the current draft proposal, the branch of government whose powers will be made stronger is the judiciary.  And the vagueness of many sections of the draft (to be fair, it is a draft and hopefully these things will be ironed out) almost seems constructed to guarantee lawyers work for years to come.

At any rate, it is extremely frustrating that the constitutional council almost seems to make a concerted effort to make uninformed decisions.  It might be blamed on ignorance about what political scientists actually do but there are actually, at least, two political scientists on the council – neither would qualify as an expert on most of the institutions being debated – so that doesn’t seem like a plausible excuse (although not impossible).  So why doesn’t the constitutional council seek the advice and input of scholars that have spent years of their lives collecting and analyzing data about how the very institutions being debated actually work?


The President's Veto

The ability of the Icelandic president to refer legislation to a referendum has been source of controversy every since the president used his veto for the first time in 2004 to veto a bill on the ownership of the media.  The episode lead to much debate that was primarily focused on whether the president’s actions were actually constitutional – a different clause in the constitution states that the president’s powers are exercised by the government’s ministers.  The debate was legalistic and basically focused on competing interpretations of the constitutions.  Regardless of what interpretation is ‘correct’, the episode highlights the limits of the legalistic discourse that has surrounded the Icelandic constitution – and still appears to surround the making of the new constitution.

The fact remains that the president did use his veto.  He was able to do so because the constitution was sufficiently ambiguous and the political context was right – the government forced a bill, seen as targeting particular individuals, through parliament without much consultation and it appeared unpopular with the public.  It can be argued that the president’s veto fundamentally changed the political system – previously it had been semi-presidential in name only.  Since then the president has used the veto twice.  In short, all the legal arguments about the constitutionality of the presidential veto didn’t matter at all.  The veto came to be because it served the political ends of the president (whether those were opposition to the legislation or a desire to strengthen the presidency).  On one hand, this suggest that the law is important, i.e., if we want the constitution to be effect it needs to be clear and unambiguous.   On the other hand, it suggests the limitation of legalistic approaches as politicians (and people in general) react strategically to the institutions that constrain their actions.  In other words, politicians generally don’t get involved in politics out of desire to follow the law but rather to achieve a variety of other goals, e.g., changes in policy or a desire to hold a public office.  The constitutions sets the rules of the game but politicians will, of course, try to use those institutions to their advantage – much like football players occasionally take a dive or pull a shirt.  The legal approach to constitution making largely ignores how political institutions create strategic incentives and, therefore, remains silent on what the unintended consequences of those institutions might be.  As I have mentioned before, the fact that most of the writings that the Constitutional Council appears to be consulting (judging by its website) is written by lawyers (not to mention primarily being case studies focused on Iceland).  I think Posner once wrote that there was few things as dangerous as a lawyer that didn’t know economics.  These days I worry that there are few things as dangerous in Iceland as lawyers (or constitutional writers) that don’t know political science.

In some ways the controversy surrounding the use of the veto in 2004 can be seen as having sparked the constitutional reform debate so it is not surprising that the Constitutional Council has offered a proposal.  The Council actually offers two options.  The first one is to retain the current veto + referendum combination while an alternative proposal adopts a more traditional form of the veto where a veto sends the bill back to the parliament which can override the veto by simply passing the legislation again with a majority (i.e., no supermajority is required).

The first option, retaining the veto in its current form, might sound like sticking with the status quo but that is not entirely clear.  The veto has been used by a single president that was elected as a figurehead rather than a political actor with the ability to shape policy outcomes.  If the president retains his veto, chances are that the next presidential election in which there is no incumbent will be quite different – the candidates are likely to distinguish themselves more on policy grounds than simply, for the lack of better words, their ‘presidential-ness’.  In other words, the actions of the current president are not necessarily a good indicator of how future presidents will behave.  I would not be surprised that the use of the veto would increase, especially under co-habitation, as the role of the president becomes more political.  Alternatively, the government will increasingly consult and bargain with the president over major legislation in order to avoid the exercise of the veto.  Whether that is a good thing or not, I don’t know.  It doesn’t strike me as a terrible idea, but it has the potential to change Icelandic politics quite radically.

I am less enamored with the second option, combining a veto with a simple majority override provision.  Essentially it makes for a very weak veto power – parliament can always override the president’s veto.  In essence, the power of the veto only amounts to being able to delay legislation for a little while.  The proposal does require the president to explain why he vetoes a bill, which some might argue does allow the president to shape the agenda a bit but it is not clear to me that the president doesn’t have that same ability to persuade without the veto.  The proposal also has a built in incentive for parliament to ignore the president’s suggestions as any amendments to the legislation would offer the president another opportunity to veto the bill.  Thus, in circumstances in which parliament is uncertain about what compromises are required to obtain the president’s signature, it may consider itself better of by making potential improvements to the legislation in order to avoid further delay.

Somewhat strangely, then, the more substantial proposal for changing the constitution is actual the less radical one – the relationship between the president and the government will remain similar to what it has been for the past 65 years.  The seemingly less radical proposal of retaining the current veto powers, on the other hand, actually has a far greater potential for changing politics in Iceland because the use of those powers has been reinterpreted in the past few years to provide for an active political role for the president.  Thus, the proposal retaining the status quo relationship between government and president is the more radical one as it seeks to codify the president’s powers.


Elections to Althingi

The Constitutional Council’s proposal for the election of members of Althingi includes a fairly radical, although not unexpected change, proposing a system of preferential voting.  The proposal is a little short on details, which will be provided in a legislation about parliamentary elections.  However, the proposal stipulates that 63 members will be elected from eight or fewer districts and that voters can either vote for a party list or individual candidates.  If the voters opt for voting for individual candidates they are allowed to distribute their votes across candidates of different parties and are free to vote candidate running in any district (if there is more than one district).   The electoral law can require up to 2/5 of the seats in parliament to be elected from district lists (rather than a national list).

It is a bit difficult to evaluate the proposal as it is rather vague.  I assume the intention is that the system is one of proportional representation but it is not explicitly mentioned.  Thus, the legislature may have considerable leeway in shaping the electoral law although the constitution fixes some of its parameters. Unfortunately, the Council no longer appears to include its rational for particular proposals (although they may be buried in meeting notes, etc. on the website).

There has been a push to adopt a form of preferential voting in Iceland for some years now so it is not surprising that it appears in the Council’s proposal.  The main reason preferential voting has been championed in Iceland is that the parties have frequently been seen to hold too tight a grip on its MPs.  The adoption of preferential voting is expected to loosen that grip and allow MPs greater freedom.  There are, at least, a couple of reasons to question this argument.  First, preferential voting essentially exists in Icelandic politics as most of the parties hold primaries most of the time.  Thus, the candidates don’t owe their position on the party list to the party but to the voters in the primaries.  Still, voting cohesion in parliament is very high.  It is not at all clear that using preferential voting in parliamentary elections will have any effect on the independence of MPs.  Second, in a previous post I argued that a high degree of voting cohesion was a function of the parliamentary system of government and that MPs are, more often than not, I suspect, motivated by the prospects of holding higher office.  That is, voting against the government is normally not good for ones ministerial career.  It is not an accident that the government MPs that we see vote against the government are precisely those that would never have become ministers – and they certainly won’t now.

So, perhaps introducing preferential voting is a harmless innovation – it only moves the preferential vote from the primaries into the general election and a potential benefit is that voters can now vote for candidates from different parties (which they can also do now by voting in multiple primaries).  But it is a missed opportunity.  Despite what Transparency International might lead one to believe, Icelandic politics are corrupt (the reason Iceland appears clean in TI’s ranking is that corruption in Iceland is not the type captured by TI’s methodology, e.g., bribes).  And there is a fair amount of research that suggests that preferential voting affects corruption and the importance of pork barrel politics.  Of course, if the electoral law reduces the number of districts to one it might seem that the incentive to engage in pork barrel politics might be removed but the absence of (small) districts doesn’t mean that politicians are unable to figure out carve out constituencies on their own.  At any rate, it seems extremely peculiar, given the political surroundings that led to the constitutional reform process, that there is no consideration (as far as I can tell) of how the electoral system may affect corruption in Icelandic politics.

Another part of the proposal requires changes to the electoral law to be approved by 2/3 of the members of Althingi.  While this doesn’t bother me, I do worry about whether this doesn’t invite a constitutional crisis as presumably it implies that the new electoral law will have to be adopted by 2/3 majority… and there is no guarantee that the political parties will find it easy to come to an agreement.  Unless of course the law is passed before the new constitution is ratified in anticipation of the new provisions in which case it could be adopted by a simple majority?

 

For references: See Required Readings

Some additional notes on related readings.  See, e.g., Chang and Golden (2007) for the relationship between electoral systems and corruption.  Cain, Ferejohn, and Fiorina (1987) on the personal vote and pork barrel politics.  Ames (1995) on pork barrel spending and how politicians carve subconstituencies in multimember districts.   Hallerberg and Marier (2004) on electoral systems and budget deficits.  The literature on the relationship between electoral systems and various political and policy outcomes is huge and some additional readings are listed in the required readings.


Parliament/Alţingi – The Speaker

The constitutional council has begun publishing its proposals for sections of a new constitutions. So far these sections include human rights, the work of parliament, and the judiciary. With this post, I start reviewing some of the proposals concerning the organization and work of parliament. I will focus on the proposals that may be considered consequential or controversial. In translating the proposals I focus on what are the key issues rather than provide a full translation.

2. Greater role of the speaker of parliament. Alţingi elects the Speaker with 2/3 of the vote at the beginning of each electoral term. The Speaker organizes the work of parliament. The Speaker vacates his seat in Alţingi (replaced by another member from his/her party).

The goal is to increase trust in parliament by requiring broad support for the Speaker in parliament and, as a consequence, to strengthen Alţingi as an institution. This strikes me as an odd proposal for several reasons. First, I’m not aware of the Speaker having caused much controversy so I’m not sure this will help much even if it works out the way that the Council thinks it will.

Second, the electoral rule is problematic because it is not resolute – meaning that it doesn’t always produce an outcome. What happens if no candidate wins two-thirds of the vote? Try again? From the Council’s explanations that accompany the proposals, I gather that these are not final proposals as the do address this possibility – the longest serving MP serves as Speaker during the election of the Speaker and the council suggest that s/he becomes the Speaker in the event Alţingi fails to elect a Speaker by two-thirds majority but what constitutes ‘failure’ here is not defined. Is it failing to elect Speaker on a single vote? Or just when everyone has had enough? The Speaker of the U.S. House used to be elected by majority rule (also not resolute if there are more than two candidates). In 1849 and 1855 it took, respectively, 62 and 132 rounds of voting to elect the Speaker – and only after adopting plurality rule (Stewart 1999). Perhaps the Council should read up on papal elections, which also use two-thirds majority. Between 1878 and 1978, from three to fourteen rounds were needed to elect the pope (Toman 2004). That doesn’t seem to excessive but it is probably aided by the fact that the cardinals are essentially placed under house arrest for the duration of the election. Before the ‘lock up’ procedure was instituted, the election of Pope Gregory X took over two years and nine months. John Paul II changed the rules for papal elections so that if a certain number of rounds of voting is reached, the only plurality instead of two-thirds majority is required. Perhaps the Council should consider adopting a similar rule? Or, at the very least, burn the ballots after each vote to make things a little more exciting. The fact that there is a default Speaker in the event of a failure of electing a Speaker by two-thirds majority also affects the government’s (and opposition’s) incentives. If the longest sitting member of parliament is a member of a government party, the government has no incentive to find a ‘unifying’ candidate that a supermajority can agree on. The same argument holds with respect to the opposition. Thus, the ‘default’ option always favors one side or the other, it appears likely that Alţingi will rarely elect a Speaker by two-thirds majority, it will be a source of conflict after each election, and will, therefore, be counterproductive in terms of increasing trust in parliament – which brings me to my third point.

Third, the proposal fails to recognize that its goals are, sort of, conflicting. The idea is to make the Speaker more powerful (although it is not clear what about the proposal achieves that) and for the Speaker to have broader support within Alţingi. Well, the more powers the Speaker has, the more sought after his position will be by both the parties and the individual candidates. Thus, the more powerful the Speaker, the less likely it will be that government and opposition parties will be able, or willing, to support the same candidate. Especially when at least one of these actors doesn’t have to (see above). The opposite is true – if the position of the Speaker is utterly irrelevant, then government and opposition parties will find it relatively easy to settle on a candidate and the potential for conflict at the beginning of each term is removed.

Fourth, if the Speaker holds important agenda setting powers it may have more wide ranging effects than just surrounding his/her election. The types of coalitions that form may be affected. There may, e.g., be an impetus to form surplus coalitions that don’t need to rely on the opposition to elect a Speaker. Is that a bad thing? It depends on what you want. The evidence suggest, e.g., that larger governments are more likely to spend more (Bawn and Rosenbluth 2006). The Speakership election also provides the opposition with an additional bargaining chip – it may only agree to vote for the government’s candidate (or to elect a Speaker at all) if the government agrees to some policy concessions. It is possible to think of these outcomes as signs of more consensual politics but it is equally easy to see them as providing a minority with a potentially important veto power.

Fifth, the introduction of a seniority rule (assuming that the parties will generally ‘fail’ to elect a Speaker) could even affect the parties’ decisions about how to set up their party lists for elections. If the role of the Speaker is an important one, the parties have an incentive to give senior members a secure spot on the party list – although I suspect other considerations are likely to trump these. Thus, it may serve to increase the incumbency advantage and reduce renewal in the legislature.

 

 

For references: See Required Readings

Some additional notes on related readings.  Caplin and Nalebuff (1994) demonstrate that a supermajority requirement of 64% is sufficient to guarantee that the  preferred alternative of the mean voter can not be beaten.  Indridason (2008) demonstrates that in the context of run-off elections with no threshold or participation requirements (similar to what is being proposed here – I think), the outcome is close to the median voter when only a majority is required.  The presence of ‘default’ Speaker selected on the basis of seniority would alter these results.


Parliament/Alţingi – Committees & Ministers

The constitutional council’s proposal includes proposals intended to strengthen parliament vis-a-vis the executive office.  These proposals include handing legislative committees (monopoly?) proposal power and requiring ministers to give up their seats in parliament upon taking office.  The council’s explanations envision a process in which ministers approach the committees about proposing legislation, which is then developed by the committees.  By requiring ministers to resign their seat in parliament, the council hopes that ministers will to a greater degree not come from the ranks of MPs.  In short, it is not likely that these proposal will do much to strengthen parliament.

First, preventing ministers from casting votes in parliament or to introduce legislation is not likely to change much.  Ministers are replaced in the legislature by members of their party who will toe the party line much as they have done in the past.  While formally barred from introducing legislation, ministers will have easy enough time finding an MP to introduce legislation on their behalf.  If committees are given monopoly proposal power things may be a little bit more uncertain but in all probability, the government will, as before, have a majority on each committee and party cohesion/discipline will ensure that the government gets its way.

Second, as it stands, the legislative committees do not have the resources or the expertise to write legislation.  Today this task is to a large degree handled by bureaucrats in the ministries.  Of course, it is possible to increase the staff of Alţingi considerably in order expand its ability to write legislation but it is not clear that this is the efficient way to go about things.  For one thing, a lot of the information about the problems a particular legislation is supposed to address resides in the ministries, i.e., the bureaucracy learns a lot about policy problems in the process of implementing policies.  This information is a significant source of the minister’s power.  Ministers have discretion about how they use this information.  They can release information that serves their policy agenda and withhold information that works against it.  In short, the legislative committees would still rely on the executive for information.  The most likely outcome is that ministers will, as before, oversee the drafting of legislation within their ministries and then deliver them to the committees who will be in charge of introducing the legislation without having much more influence over its contents than they do today.

Why do I take such a pessimistic view of these proposals?  In short, I think they are based on a misunderstanding about the relationship between MPs and their parties.  Icelandic MPs have long lamented their lack of independence or power.  Yet there is nothing (formally) in the current system that prevents them from taking the initiative to introduce or amend bills.  They simply choose not to use their power – they simply vote, with the rare exception, with their party.  That is not an accident.  It has much to do with the parliamentary form of government in which the government relies on the confidence of the legislature to stay in office.  For government MPs, voting against the government risks bringing the government down.  Government MPs may dislike a particular piece of the government’s legislative program but generally they will find it is easier to swallow than the possibility of handing the reins of government to the opposition.  Or another election, in which the party leaders have an opportunity to exact revenge on the very MPs whose votes brought the government down.  And it is not all sticks.  There are also carrots.  An MP that behave is, e.g.,  more likely to be rewarded with a seat on a  important committee and have a better chance at becoming a minister one day.  Non of the proposals that have emerged  so far do anything to change this relationship.

Overall, I find these proposals rather strange.  It seems to me that they aim at undermine the parliamentary form of government by increasing the separation of the executive and legislative branches (although I think they are not very effective at doing so) while at the same time reducing the role of the president (more on that later).  Would it not be more straightforward to hand more executive powers to the president if the goal is to give MPs greater autonomy?  The tenor of the proposal and the council’s explanations seems to be that the council is aiming for some sweet spot in between a parliamentary and a presidential system.  But it is not clear to me what that sweet spot is – or whether it exists.

Finally, wouldn’t it be nice if the council made some references to research on these things?  Is there any evidence that countries where ministers give up their seat in parliament or where ministers are not drawn from the ranks of MPs leads to better political outcomes? And is there any evidence that more autonomous legislators and/or stronger legislative committees make for better policy?  To keep with what apparently is the council’s preferred type of reasoning, the anecdote, the U.S.A. is an example of country where legislators have substantial autonomy and legislative committees play an important role in policy making.  Is this the example the council wants to emulate?

 

For references: See Required Readings

Some additional notes on related readings.  On legislative committees, Strom (1984) argues that the organization of committees matters and that they, e.g., make the formation of minority governments more likely.  Krehbiel (1988) provides a nice overview of theories of legislative committees and under what conditions they affect policy outcomes – for a simpler exposition, see Shepsle (2010).  Laver and Shepsle (1994) edited a volume on the ministerial powers that is a useful overview.


From an Assembly to a Council

Despite lack of activity on this blog, constitutional reform in Iceland moves forward. After the Supreme Court invalidated the outcome of the election, the government moved ahead to simply appoint the candidates that would have won a seat – in effect showing the courts the middle finger. And as a result the title of the blog is now outdated as the assembly is now the Constitutional Council. In a previous post I argued that this would be an unfortunate outcome, potentially undermining the authority of the constitutional assembly even though it appears unlikely that the administrative deficiencies that lead to the election being voided are highly unlikely to have affected the outcome. At least far less than the fact that some of the candidates failed to understand how the single transferable vote works.

So why the silence on the blog? Frankly, after ‘accidentally’ watching on of the meetings of the Constitutional Council online I felt, well, pretty disgusted. The meeting, ten days into the term of the Constitutional Council, was consumed by debating whether the working document for the new constitutions should consist of one or two columns (one column including the current constitution) and whether subcommittee chairs should be elected before or after easter. Not a big deal really, except for the fact that 10 days account for over 10% of the time that the council has to write a new constitution.

At any rate, after six weeks of work, the Constitutional Council has begun releasing some of its proposed amends I hope to be a little bit more active – since there is something to talk about. On its website, the Constitutional Council website maintains an ‘extensive collection’ of writings on ‘constitution’ for the council members perusal. Interestingly, those readings almost completely ignore the large literature in political science and economics on constitutions and political institutions. Most of the literature hosted on the site consists of various documents (legislative proposals, constitutions of other countries), articles by lawyers, newspaper articles, and handful of articles written by Icelandic political scientists. Overall, this list of study materials for the council is seriously wanting – with the exception of the few articles falling in the last category – there is no serious analysis of the effects of the various political institutions. If this is the extent of materials considered by the constitutional council, I have little hope that the new constitution will improve on the current one. It will certainly be based on noble ideas about how things should work but the realization of those ideals will likely be undermined by the unintended consequences that political constitutions often have. The absence of literature dealing with how politicians react strategically to institutions is worrying, which the legal literature rarely addresses. In the hopes of correcting this bias I have gather a list of ‘required readings’ – a bunch of readings, hastily assembled, that I think every constitution writer should read. It is far from complete but… it is a start.

Of course, the Constitutional Council may simply not be interested. I offered early on to assist the council with finding scholars specializing in the various institutions that might be willing to talk with the council, e.g., help its member digest the literature, which can be fairly technical. Needlessly to say, while acknowledging my offer, the council has shown no interest in seeking the advice of experts. Of course, the council may have sought expert advice through other channels although there is limited evidence of that. The only interaction with outside experts reported on the council’s website cites interviews with Belfrage and Berry but the interviews have the appearance of being related to a research project of theirs (along with one member of the Constitutional Council).


Re-electing the Assembly?

Last week the Icelandic Supreme Court ruled the election to the Constitutional Assembly null and void. One can naturally debate the reasons the Court cited (various administrative errors, e.g., ballot boxes not having locks) but I'm not particularly interested in arguing about those. The interesting question, of course, is "What now?"

One option is to simply hold the election again. Another option that has been voiced is to do without an election and having parliament simply appoint the members elected in the voided election. While the latter option has the benefit of being far cheaper, it strikes me as a bad idea. And I say that even though I think it unlikely that the flaws in the administration of the elections influenced the outcome. I think it is very likely the outcome of a new election would be very similar to the voided one. Then, why bother? The reason is that a constitution is just a piece of paper. To a large degree, constitutions only matter because people accept them as prescribing the rules of the game. This may sound strange to Icelanders where discourse about the constitution has always had a very legalistic tone - the question that is always asked is what the law (or constitution) says. This, in my opinion, is a fundamentally wrong approach to thinking about politics and how to set rules of the game. One doesn't have to look far to see why the legalistic approach falls short. According to the Icelandic constitution, the president has a legislative veto. However, article 13, "The President entrusts his authority to Ministers" and for about six decades no president exercised the veto power. But one day the president did and effectively transformed Iceland from a parliamentary system to a semi-presidentialist one. Admittedly, as the discourse about the use of the veto highlighted, this was an instance of an ambiguity in the relevant constitutional provisions rather than a political actor choosing to violate the constitution but it highlights the fact political interests, and opportunities, shape how political actors choose to interpret constitutions. Again, this was not an instance in which a political actor chose to break constitutional provisions (although some legal scholars might consider that to be the case) but one of the reasons we haven't seen that happen in Iceland is that everyone accepts that the constitution sets the, sometimes ambiguous, rules of the game.

So, the question is what would politics be like if not everyone accepted the rules of the game provided by the constitution? I don't know the answer to that but I would be inclined to err on the side of caution. And this means holding another election. If parliament decides to appoint the members elected in the voided election it would only serve to undermine the legitimacy of the constitutional assembly. It may be the case that it is a fairly small minority that really considered the administration of the election serious enough to void and even that the case was brought for political reasons but that is largely irrelevant. It is simply important to build a broad consensus about process of drawing up a new constitution. Undoubtedly there will be disagreements about the constitution that is produced in the end but it will not help if the process is seen as lacking legitimacy.Rather than seeing this as a step backwards, it should be seen as a new opportunity. Parliament will, presumably, need to write a new bill to establish a constitutional assembly and, this time, maybe they can do it right. As I have argued in previous posts, it is nothing short of ridiculous to give the constitutional assembly only two (or four, if extended) months, to come up with a new constitution. Its members need to have time to learn about how political institutions work if they are to do a decent job.


Those damn political parties!

The power of political parties has become, perhaps increasingly, a common complaint of observers and participants in Icelandic politics and many of the proposed reforms of the political system have focused on reducing the power of political parties.  For example, by introducing an element of a `personal vote’ into the electoral system (usually by adopting an open list proportional representation system) and measures to strengthen parliament vis-ŕ-vis the executive.

The election of the constitutional assembly is a useful reminder that parties do serve an important function in politics.  The constitutional assembly election saw over 500 candidates running for 25 seats – the great majority of which was unknown to most voters.  As I have discussed before, learning about what these candidates stood for was an enormous and an overwhelming task for voters.  Contrast that with a regular parliamentary election in Iceland where the number of candidates is probably of a similar magnitude.  Yet voters don’t appear to have much difficult (most of the time) figuring out how to cast their votes in parliamentary elections.  The reason is that the candidates stand for parties and the voters cast their votes for parties rather than candidates.  And importantly, the parties usually have reasonably clearly formulated party platforms – choosing among 4-6 party platforms is a far easier task than choosing among 500 candidates.  This is one of the primary roles of parties, i.e., to aggregate policy preferences and to formulate policy alternatives so that on election day voters simply face a choice among a handful of party platforms.

The downside, of course, is if the parties do a poor job of presenting voters with platforms that they would like to see.  Overall, I think Icelandic political parties do a decent job of that – at the very least, most voters see the parties as representing different interests.  Of course, it is possible to argue that while offering different policy alternatives, the political parties still fail to represent the wishes of a majority of voters – and opinions are likely to differ on that point.  Regardless of what position one takes on that issue, it seems sensible to ask what the alternative might look like if one adopts institutional reforms aimed dismantling the party system in its current form.  While  extending voters’ ability to cast a personal vote arguably increases voters’ choice, those choices may ultimately be less meaningful.  An open-list proportional representation system would increase the independence of MPs (and candidates) from their parties, allowing them to carve out their own policy platforms.  The question then is, if I vote candidate X who runs for party Y but that candidate is not elected I may end up having supported a party whose MPs support policies that I don’t like that much.  In the worst case scenario, party labels would a worthless signal about candidates policy preferences.  A more likely scenario is that the party label will still provide a rough guide to its candidates’ ideological orientation.  But it is not clear to me that it is desirable to introduce greater uncertainty into the mix.  As it stands, voters have a difficulty predicting how their votes will influence policy – I may like a certain party but it may not always be in my best interest to vote for that party because I’m unsure which coalition will form after the election.  Increasing the scope for casting personal vote would likely increase that uncertainty – now I would both be uncertain about which coalitions may form and also about who the people at the bargaining table will be.

Of course, we cannot overlook the fact that, essentially, we already have a system based on a personal vote.  All the major parties regularly hold party primaries where voters, usually, determine the order of the candidates on the party lists.  This fact points to an interesting question.  First, if an electoral system based on a personal vote is seen as conducive to producing more independent MPs and a stronger parliament, why don’t the party primaries achieve this?  Or turning things around, what is it about making the personal vote important in parliamentary elections that makes MPs more independent?  My intuition is that MPs’ independence has less to do with the electoral system than the nature of parliamentary systems – MPs are forced to support the government lest they want to risk becoming a part of the opposition, which plays to the advantage of the cabinet.  Moreover, most MPs dream of becoming ministers one day and defying the party leaders is rarely conducive to realizing that dream.

At any rate, it is not clear to me that the case for weak political parties has been made – it is easy to point at the Icelandic parties and argue that their strength limits the independence of MPs and the power of Althingi.  The solution to those problems is usually treated as obvious – make the fortunes of MPs more independent of their parties – but I think it is also important to think more carefully about what the alternative might look like, i.e., what would politics with weak parties look like?  I have already suggested that it may make voters’ choice more difficult but one might also wonder about how it would affect legislative politics.  What happens when we don’t have strong parties to usher legislation through parliament?  If I had to guess I would say it would be less efficient and more time consuming without necessarily making for better public policy – in order to cut through legislative stale mate, policy makers will be more likely to cut through legislative deadlock by catering to special interests.  But that is just a guess – and there is no need to rely on guesses, there is some evidence, and possibly a lot of data, that could be used to answer questions such as these.


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Indriði H. Indriðason
Indriði H. Indriðason
Associate Professor of Political Science, University of California - Riverside.

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