The Italian Parliament is presently involved in an effort to thoroughly revise the design and powers of the Senate. Carlo Fusaro outlines the background to the ‘perfect bicameralism’ that has existed in Italy until now and the nature of the current reforms. He argues that diversification of the two chambers is long overdue, and addresses concerns raised by those who oppose reform.
On 22 December 1947, minutes before the final vote on the new Italian Constitution, Meuccio Ruini, the Rapporteur, adamantly stated that the design of the bicameral parliament was not satisfactory. Supporters of the unicameral and the bicameral solutions had battled hard. The latter prevailed, but they were divided among those who envisioned a second chamber as the representative body of the new regions, those who wanted social interests to be represented and those who wanted a second chamber to restrict any revolutionary tendency in the other house. As a concession, the champions of unicameralism obtained universal suffrage and the direct election of both Houses. The notion of a Senate as the place where the new regions would be represented was set aside.
As a result, the two chambers that were established varied in (a) number of members; (b) duration (five versus six years); (c) voters’ age (only citizens over 25 elect the Senate); (d) a handful of senators for life. Beyond this, the idea of a strict functional equality (including equal powers over legislation) was reaffirmed and Italy’s uniquely undifferentiated bicameral parliament was born. The bicameral principle was therefore implemented but stripped of its original purpose. An Italian scholar defined it ‘an absurd and cumbersome bicameralism’ (Crisafulli, 1973), an American one, a system ‘looking for trouble’ (Wheare, 1963).
What is more, the major political parties promptly acted to remove residual elements distinguishing the two chambers. Before the Senate was even born, a law was passed to safeguard the political uniformity of the two Houses by assimilating their electoral formulas originally meant to be different. Later, in 1953 and in 1958, the Senate was dissolved in advance, artificially reducing the six-year term to match the lower chamber. The Const. Law 9 February 1963, no. 2 then formally amended the Constitution to make the Senate term five years. Since then the constitutional provisions concerning the Italian Parliament have not changed, although it has been influenced by ordinary legislation. For example, the decision to lower the voting age to 18 for the Chamber in 1974 means that four million fewer voters are eligible to vote for the Senate. Electoral reforms in 1993 and 2005 also made the election outcomes in the two Chambers less uniform: problematic for any bicameral system, but a nightmare if the Cabinet is expected – as is the case under Italy’s ‘perfect’ bicameralism – to command a majority in both Chambers!
Not surprisingly, the reform of bicameralism has been on the agenda for decades. The 2013 election result worsened Italy’s political and institutional problems as two Houses with different majorities emerged. Re-elected President Giorgio Napolitano, already 88 years old, accepted a second term but under the condition that parliamentary groups would make a serious effort to pass major constitutional revisions, starting from the reform of Parliament.
By the end of 2013 the Constitutional court had struck down the most significant provisions of the 2005 electoral law (the additional majority-assuring seats and the unavailability of individual preference votes). In March 2014 the newly-elected leader of the Democratic party Mr Matteo Renzi, former mayor of Florence, himself not an MP, launched a new effort to change the electoral law and the Constitution in collaboration with the leader of the major center-right party, former Prime Minister Silvio Berlusconi.
The proposed constitutional reform was approved by the Senate (August 2014) and by the Chamber in February 2015. The text submitted by the Cabinet was amended by both Houses, but the main options put forward were preserved, namely:
- The two Chambers shall be significantly diversified (only the Chamber would have no-confidence powers; the Chamber would hold final say in most legislative decisions);
- The Senate would become an indirectly elected body made of regional councillors and mayors; the size of its membership would be reduced by two thirds;
- The Italian institutional structure would be simplified, by abolishing eighty Provinces and suppressing the Economy and Labour Council;
- Legislative powers of both Parliament and regional councils would be redesigned
- Citizens’ initiatives would be reinforced.
This project affects 44 articles of part II of the Italian Constitution. The Senate would be composed by 95 elected members (as opposed to today’s 315) plus up to five senators chosen by the President. The new Senate would be linked to the regional council election cycle as its main function would be to represent regional and local entities. Each regional council would elect one mayor and one or more of its members to represent the region in the new Senate. The number of senators allotted to each region (beyond the two granted to each region including the smallest) depends on the population. None of the proposed changes would directly affect the lower Chamber.
The Senate’s remit would be more limited than now, dealing specifically with areas such as EU relations, and the evaluation of public policies. It would participate in the election (i) of the President of the Republic, (ii) of the justices of the Constitutional court and (iii) of the members of the Superior council of the judiciary. However, the Chamber of Deputies alone would have the power to dismiss the Cabinet, to declare war, to authorise the ratification of major treaties, to indict the Prime Minister and members of the Cabinet. And only the Chamber could be dissolved by the President.
Laws would be divided into three categories:
- Fully bicameral laws (constitutional laws, basic laws regulating local entities, laws regulating the election of senators, laws authorizing the ratification of EU treaties, laws dictating the basic regulations concerning the regions)
- Laws concerning the application of the supremacy clause, meant to limit regions’ legislative powers (amendments passed by the Senate would be overruled by the Chamber only by an absolute majority of its members);
- All other laws: passed by the Chamber, the Senate would have thirty days to propose amendments; then the Chamber would give its final vote (by simple majority).
Opponents of reform raise several concerns. They argue that (1) turning the Senate in an indirectly elected body would impoverish democracy; (2) assigning limited legislative powers to the Senate would endanger the checks and balances of the Italian constitutional system, expecially considering the new electoral law for the Chamber; (3) the indirect election of members of the Senate would not ensure that they will represent regional interests rather than party affiliations; (4) as the new senators would still be members of the regional assembly (or mayors) this would not allow them to perform their job efficiently; (5) to reproduce the German system (where the Bundesrat represents the Governments of the Länder) would have been better; (6) the new legislative process is too complicated.
I would respond to these criticisms first by highlighting Italy is a polyarchy: democracy exists through a variety of elected and non-elected bodies. The decision to turn one Chamber into an indirectly elected body is to be welcomed, and will by no means make the country less democratic. Checks and balances must be preserved, possibly increased, but the current inefficient duplicate of the Chamber does not offer an effective system of checks and balances. The German model could have been followed more closely, indeed, but this proposal, although submitted, was never considered seriously.
The Italian bicameral system is an oddity among modern constitutions and it makes sense to diversify the two Chambers. Each chamber must represent something different and the political (lower) Chamber must be ensured a clear supremacy to enable better governance. What the indirectly elected members of the new Senate will truly represent is to be seen; a lot will depend on whom the Regional Parliaments will elect: backbenchers or leaders? The fact that the new senators will keep their original mandates will also be an issue to cope with; the Senate as a chamber which sits eleven months a year, twenty or more days a month will have to change and an effective cooperation between this Senate and the Regional Assemblies will have to be developed.
The new legislative process will need experimentation; novelties like a new division of legislative competencies require time, trial and error, adaptations, before they work properly. The old system is obviously simpler: both Chamber and Senate have full competencies on everything! Any new partition of powers will raise difficulties and provoke arm-twisting. But it is still undoubtedly worth a try.
About the Author
Carlo Fusaro is Professor in the Department of Laws at the University of Florence, Italy.