The Italian Constitutional Court judgement on the ‘Italicum’ electoral law: another new reform for Italy?

Last month the Italian Constitutional Court declared several crucial elements of the ‘Italicum’ electoral system for the Chamber of Deputies, approved by parliament in 2015, to be unconstitutional. Further electoral reform is therefore now being discussed, ahead of an election that must take place by next spring at the latest. Roberta Damiani explains the background to the judgement and its implications.

On 25 January the Italian Constitutional Court announced its judgement on the latest electoral law for the lower chamber of Parliament (the Chamber of Deputies), promulgated by Matteo Renzi’s government and approved in 2015, known as the ‘Italicum’. While retaining some of its features, the Court declared that several of the Italicum’s most crucial elements are unconstitutional, and modified them accordingly. It effectively turned what would have been a majoritarian system into a proportional one.

Before examining this judgement in detail, we need to understand how it fitted into broader debates about the appropriate constitutional structure for Italy.

The Constitution of the Italian Republic, founded in 1946 in the wake of the experience of fascism, was based on the principle that power should be dispersed, in order to prevent the rise of another dictatorship. This was achieved through the creation of two coequal parliamentary chambers: not only did both have to agree all legislation; in addition, either could dismiss the government through a vote of no confidence. Some level of governability was achieved only by the fact that both chambers were directly elected through proportional representation: their compositions were almost identical, such that they rarely disagreed sharply with each other.

Nevertheless, by the 1980s there was a widespread perception that the dispersion of power had gone too far. The need for fundamental reforms became particularly acute after a major corruption scandal, known as ‘Tangentopoli’, that was uncovered in 1992 and led to an almost complete breakdown of the party system. In response, a new electoral system – the so-called ‘Mattarellum’ – was introduced in 1993, which reduced electoral proportionality in both chambers.

In 2005, the government of Silvio Berlusconi sought to go further: it adopted another electoral system (the ‘Porcellum’), maintaining the semi-proportionality of the 1993 system while changing other features; it also sought to cut the powers of the Senate. The Senate reform was, however, blocked in a referendum in 2006. Furthermore, Constitutional Court rulings meant that divergence was introduced between the electoral systems for the two chambers. Then, in December 2013, a further Constitutional Court ruling altered the 2005 system fundamentally. That system had allocated a bonus of seats to the largest party or coalition, guaranteeing it a majority in the Chamber of Deputies. The Court ruled that such a plurality bonus, allocated automatically without the need to reach any threshold, was unconstitutional. It thus abolished the bonus, creating a pure proportional system that came to be known as the ‘Consultellum’.

It was shortly after this court ruling that Matteo Renzi became Prime Minister, promising major constitutional change. As explained in a previous post, he sought to reintroduce an electoral system for the Chamber with a substantial majoritarian element and to weaken the Senate very considerably. The new Chamber electoral system – known as the Italicum – was designed to circumvent the Constitutional Court’s 2013 ruling regarding the unconstitutionality of an unconditional plurality bonus. It would ensure a majority for one party, but through one of two mechanisms. First, if a party won at least 40 per cent of the vote, it would be attributed a plurality bonus giving it 55 per cent of the seats; the remaining seats would be distributed to the other parties in a proportional way. Second, if no party or coalition reached 40 per cent, there would be a second round where electors would decide which of the two parties that got the highest shares would win the bonus. The Renzi reforms to the Senate, meanwhile, would have weakened the second chamber both by diminishing its formal powers and making it indirectly elected.

Table 1: Electoral laws in post-war Italy

Both parts of this reform package have now been substantially unpicked. The Senate reforms were defeated in a referendum in December 2016, leading to Renzi’s resignation as Prime Minister. The Constitutional Court’s January ruling, meanwhile, rendered the Italicum’s bonus provision largely null. The Court deemed the two-round system unconstitutional: it would allow a party to get to the second ballot without meeting any threshold; hence, it would distort the will of the electors by having the same effect of a plurality bonus allocated without any minimum requirement. The Court maintained the plurality bonus for a party reaching 40 per cent of the vote as, unlike the 2005 law, this prescribes a minimum threshold for the bonus to apply. However, it is extremely unlikely that a party will reach 40 per cent: Italy’s largest parties – the Democratic Party and Five Star Movement currently score around 30 per cent in the opinion polls, and the 40 per cent level has very rarely been reached by Italian parties in recent decades.

This means that the law as it now stands would work essentially as a pure proportional system. A parallel can be drawn with the so-called ‘legge truffa’ (swindle law), that was approved in 1953, which would have assigned 65 per cent of seats to a party reaching an absolute majority of the national vote. The Christian Democrat coalition expected to surpass this threshold in the 1953 election, however that was not the case, and hence seats were allocated according to pure PR. The swindle law was repealed in 1954, reverting to the old proportional system.

A similar dynamic in terms of what the Court would allow applied to party lists. The 2005 law had closed lists; moreover, the names of the candidates did not appear anywhere on the ballot. In the 2013 judgement, the Court declared the closed lists unconstitutional, and re-introduced preference voting as it had existed before 1993.

The Italicum addressed this issue by establishing open lists except for two provisions, First, the position of the ‘capolista’ – the top candidate on the list – was fixed by the party. Second, candidates were allowed to run in more than one constituency (up to ten, to be precise), and then choose where to serve if they were elected in more than one place. This would have allowed party managers to influence which of their candidates were elected by deciding where multi-district candidates would stand down. In its January judgement, the Constitutional Court allowed the capolista provision: since this candidate is clearly identified on the ballot, it reasoned, the electors can make an informed choice. Moreover, the lists are short and electors can cast up to two preferences (as long as, when casting two, one preference goes to a male candidate and the other to a female one). But it rejected as too distortive the provision allowing multi-district candidates to choose where they will serve. Instead, a draw will be held to assign a district to these candidates.

In one sense, the Constitutional Court’s judgement allows Italy to dodge a bullet. Had the Italicum remained unaltered after the Senate reforms were rejected in last December’s referendum, a potentially unstable governing arrangement – with a powerful majoritarian Chamber operating alongside an equally powerful but proportional Senate – would have existed. The Court’s judgement resolves that inconsistency. The electoral system in place for Senate elections is the proportional Consultellum of 2013, while the system for the Chamber is the modified Italicum: potentially majoritarian, but proportional in practice.

Comparison between the two electoral systems that would apply if a general election were held now. Translated from La Repubblica.

There is considerable disagreement, however, as to whether this proportional outcome is the best for Italy’s future governance. The Court itself, in explaining its judgement, said:

This Court cannot be exempted from noticing that the outcome of the constitutional referendum held in December 2016 confirmed a constitutional structure based on the equality of powers and functions of the two elected chambers.

A purely proportional system could impact negatively in terms of governability – the very issue that the Mattarellum, Porcellum and Italicum all tried to address. As a result, yet more reform is now advocated. The Constitutional Affairs Committee of the Chamber of Deputies has started to work on a new electoral law and, despite the fact that it has already received over 15 drafts, one of the options favoured by parties from both the government and the opposition is the old mixed system ‘Mattarellum’. The other option that the media increasingly mention as a compromise that might satisfy all parties is the ‘Lauricellum’, presented by a Democratic Party deputy, which would essentially extend the modified Italicum to the Senate (hence, still a proportional system), but only allowing three multiple candidacies. Nevertheless, the issue of electoral reform is now being overshadowed by the political crisis in the Democratic Party, as a new, bitter leadership contest, where Renzi is once again the front-runner, has resulted in a split: a new party group, ‘Articolo 1- Democratici e Progressisti’ was born out of disagreements with Renzi, and has already gained 37 members in the Chamber of Deputies and 14 in the Senate. Predictably, the discussion of the new electoral law has now been postponed, and will not begin until April. Therefore, while nobody wished for the current situation, two poorly drafted electoral laws (and a litigious Democratic Party) mean that the country is, in a very Italian fashion, stuck once again – and, in constitutional terms, it seems to be stuck in the early 1990s.

About the author

Roberta Damiani is a PhD candidate at the Constitution Unit. Her research is focused on the role of the Senate in the Italian legislative process.

7 thoughts on “The Italian Constitutional Court judgement on the ‘Italicum’ electoral law: another new reform for Italy?

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