Constitutional Change and Upper Houses: the Italian Case

downloadOn 11 and 12 June 2018 the Constitution Unit co-hosted a workshop at Rome LUISS university, on ‘The challenges of reforming upper houses in the UK and Italy’. This is the second in a series of posts summarising the speakers’ contributions. Professor Carlo Fusaro, a leading proponent of Matteo Renzi’s failed Senate reform of 2016, reflects on why the proposals were defeated and what wider lessons can be learned from their failure.

In a previous blog, Constitution Unit Director Meg Russell set out some more general obstacles to bicameral reform. In this post, reflecting on the recent Italian experience, I argue that the challenges of reforming second chambers have changed, and grown, significantly in recent years.

Constitutional change is difficult by design. Transformation of those constitutional bodies which have a say in the decision making process of constitutional revisions is even more difficult, the most difficult of all. This is something we all have been acutely aware of for decades both in Italy and abroad.

We might say that this is an example of the ‘traditional’ or ‘conventional’ obstacles to reforming second chambers, as documented in a 2002 article by Meg Russell and Mark Sandford, which was summarised in the recent post by the former. But there are also new and different obstacles. These may apply particularly to contexts where the second chamber is directly elected, as is the case in Italy. They apply even more when the constitutional revision process entails – or may entail – a referendum. Why? Because, putting it bluntly, democracy has changed – it is no longer what it used to be. So one can say that there is a ‘before’ and an ‘after’ in the discourse on reforming second chambers: before and after what I’d call the Great Populist Upsurge (GPU), and before and after what I call the Eruption of Social Media (ESM), which certainly helped in the creation of the GPU.

Second chamber reform: the Italian case

In Italy we have had at least 35 years of failed attempts to update the Constitution, as I have previously summarised elsewhere. In this post I am primarily interested in drawing on recent developments. For a moment, let us get back to the most recent attempts to revise large parts of the Italian Constitution.

In 2001 there was a constitutional reform package with relatively limited content, which nonetheless led to a very deep change. This reform concerned the powers of the regions, moving from a position where they could legislate only on policy areas specified in the constitution, to one where the powers of the central state were spelt out, meaning that in all other areas the regions could act without Rome’s approval. This was passed narrowly by parliament, but approved in a referendum, practically without any opposition (voter turnout was 34%, which is extremely low). In any case this bill did not include any provision for changing the composition or powers of the Senate, although such a proposal was announced.

In 2006 there was a package with much wider content. This sought to improve the new relationships between Rome and the states and regions. At the same time it would have changed the Senate into something resembling a federal Senate. The Senate would have remained a directly elected body, but with its legislative powers limited to certain areas of a ‘federal’ nature, and its confidence relationship with the government abolished. The reform would also have increased the powers of the Prime Minister to appoint and dismiss ministers, and to dissolve parliament, thereby limiting the power of the President. This package again narrowly passed through parliament, this time with the support of parties of the right, rather than those of the left, but was heavily defeated at a referendum (with a significantly higher participation level of over 52%). By the time of the referendum it had been largely abandoned by those who had proposed it: parties which had just lost the most recent election. Furthermore, the sense of a ‘constitutional moment’ had passed.

The reform of 2016 covered similar topics, although the proposals were different. It was significantly more radical in relation to the second chamber, in particular. Like the previous package it went on to be decisively defeated in a referendum. Both turnout and ‘no’ votes were similar to the outcome of the referendum of ten years previously (over 65% turnout and 59% nays). Interestingly enough, Italians abroad overwhelmingly supported the proposal, with 65% of them voting for it. Both beforehand and afterwards, the dynamics of the referendum have been much analysed.

Explaining recent failures

After decades of failed attempts, proposals for second chamber reform have hence been defeated twice by the voters in ten years, despite having been formally approved by the Italian second chamber itself. The first time the transformation would have been significant but limited, the second time it would have been major. In effect the latter reform was the de facto abolition of the second chamber as it had traditionally been, and its substitution with a chamber designed to represent local and regional institutions.

However the rejection of the 2016 package appeared on the face of it to have little to do with the specific content of the reform. One month before the referendum an opinion poll by CISE (The Italian Centre for Electoral Studies at Rome LUISS university) and the newspaper Il Sole24Ore found the following results regarding different aspects included in the package of reform:

  • 53% of respondents supported restricting the power to hold a confidence vote to the first chamber only, rather than to both chambers as currently;
  • 51% agreed that the Senate should comprise regional council representatives and mayors (whereas it is currently directly elected by the public);
  • 57% agreed that most laws should require approval of the Chamber of Deputies only, rather than the approval of both chambers;
  • 52% agreed that the constitution should give central government supremacy over the regions;
  • 83% agreed that a law considered as a priority by the Cabinet should be voted upon within a specific time limit;
  • Nonetheless, although all of these items were included within the package, just 48% said that they supported the constitutional reform as a whole.

At the referendum itself on 4 December 2016 the reform’s support was even lower: as we have seen, it was backed by only 41% of voters, and rejected by 59%. Prime minister Renzi tendered his resignation immediately afterwards.

On this blog 11 days later, Roberta Damiani and Meg Russell argued that (a) the project was excessively wide-ranging and complex, making it a package which could be objected to for numerous reasons; (b) it was a major mistake by Mr Renzi to link its outcome to his own survival and that of his Cabinet; and (c) it was hard to conclude that populism was dominant in influencing the outcome.

With some reservations I can agree with (a) and (b). The reform clearly fits the description in Meg Russell’s recent blog of a large-scale (and therefore difficult) rather than small-scale (and perhaps more achievable) change. This is maybe supported by the figures above indicating that individual parts of the reform were popular but that the overall package was not, and also by the success of the more limited reform in 2001.

Nonetheless, I do not agree with part (c) of these authors’ analysis. The way that voters turned away from the reform, having appeared to support it at earlier stages, seems to be a product of our current short-term approach to politics. As in 2006, by the time the referendum arrived the constitutional moment had passed. Having initially been greatly impressed by Renzi and his agenda, the people had moved on to different issues, such as unemployment and immigration. The narrative had become: ‘Why meddle with the Constitution? What need is there to change it? It’s just Renzi and his party who want to do this for partisan reasons’.

With respect to Renzi himself, it certainly was a major mistake to in effect ask the public to participate in a gigantic direct confidence vote. But even if he hadn’t used this tactic himself, the ability of the populists to set the agenda, via social media and traditional media, would no doubt have been able to turn it into a referendum on Renzi and his Cabinet anyway. And in those circumstances Renzi would have been unlikely to survive a defeat. In my view tactical ‘mistakes’ by Renzi may have added to the scale of the defeat, but what really mattered was the fact that the populist upsurge, which had been incubating for years, had finally exploded. This happened during the course of 2015 and its effects became evident during 2016, especially after the result of some mayoral elections in the spring (when the Five-Star Movement took political control of key cities, including Rome and Turin). Renzi had very quickly gone from being a popular politician to being presented as an object of hatred and even the cause of all possible ills. The impact of social media contributed decisively to this. Meanwhile the traditional media were irresponsibly flirting with anti-system parties, primarily for circulation purposes, by uncritically giving credit to ‘fake news’ and granting identical dignity to the opinions of scholars and people with no expert knowledge whatsoever.

The aftermath

Since the failure of the referendum any discussion of constitutional reform, and particularly of second chamber reform, has been set aside. There has also been a decline in the ‘federalising’ discourse. This used to be avidly pursued by the Northern League, but its new leader, Matteo Salvini, has recast the party simply as ‘The League’ and sought a broader (right wing) base of support. Meanwhile, coalition partner the Five-Star Movement largely gets its strength from the south.

At the same time, far from the Senate becoming less political and more focused on regional matters, as the reform had envisaged, it is becoming stronger and more political. Some of the most prominent political leaders (including both Salvini and Renzi) now sit in the Senate following the 2018 general election. Ironically, the difficulties created by the Senate for the previous government have ended up increasing its political relevance. As a side effect of a recent change of its Standing Orders (in particular the rules concerning the formation of parliamentary groups), it seems to have become more strictly controlled by parties, making it virtually impossible for cross-party groupings to emerge.

Conclusions

In conclusion, the Italian case allows us to revisit some old lessons and also draw some new ones.

In some respects it seems that Meg Russell was right. It is probably better to break a reform into separate parts – at least for as long as it’s possible to retain some overall coherence. However there is no method that can guarantee success. I wouldn’t be surprised if tomorrow I discovered that opponents were capable, if confronted by small-scale reform, of successfully arguing that a project to change the Constitution must be rational and inclusive, not piecemeal.

But it also seems that our collective memory span is getting shorter and shorter: what appears essential and a consensus opinion today, can quickly become forgotten. In the spring of 2013 when parliament re-elected President Napolitano because of members’ incapability to agree on another candidate, the crisis of the political and institutional system appeared evident to a large bipartisan base and an effective reform became an option but an undisputed necessity. When the Italians voted in 2016, as I mentioned, many had started wondering whether or not the reforms had any point.

In addition, the recent populist upsurge makes it unthinkable to turn a directly elected chamber into an indirectly elected one, as Renzi’s reform proposed. This is especially the case if voters end up having a direct say through a referendum.

All this means that constitutional reform processes structured like that in Italy, based on two stages – first a decision by parliament and then a referendum – are hugely difficult, at least until this phase in history is over. In a populist culture, where everything that rightly or wrongly appears to be establishment-oriented is highly contested and unpopular, processes of this kind are very likely going to fail. Hence – at least as far as Italy is concerned – the only reforms that might succeed are those which achieve a two-thirds majority in parliament, thereby avoiding the constitutional requirement for a referendum. Perhaps this means small-scale reform is the only type possible, but most likely it just means there is no chance of any reform in the near future.

This is the second of several posts related to the LUISS events on 11 June and 12 June. The first post in the series can be found here, and the third post appears here. Follow the Unit on Twitter (@ConUnit_UCL), or subscribe to the blog in order to be notified when future posts in this series are published.

About the author

Carlo Fusaro is Professor of Comparative Constitutional Law at the University of Florence and tweets as @carlofusaro

2 thoughts on “Constitutional Change and Upper Houses: the Italian Case

  1. Pingback: The challenges of reforming the Italian Senate | The Constitution Unit Blog

  2. Pingback: The failed Senate reform in Italy: international lessons on why bicameral reforms so often (but not quite always) fail | The Constitution Unit Blog

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