For the first time since its inception, the Five Star Movement finds itself in government, with the stated intention of increasing the use of direct democracy by increasing the circumstances in which a national referendum can be held. Carlo Fusaro examines the proposals and their potential impact on Italian democracy. 

This post intends to report on the most recent initiatives concerning referendums by the new populist majority in Italy, as represented in the government formed by the Five Star Movement (M5S) and by the League (formerly known as the Northern League), following the 4 March 2018 elections.

The proposals

While the two vice-premiers Matteo Salvini and Luigi di Maio have been making headlines in other areas, Riccardo Fraccaro, a University of Trento graduate in international environmental law who serves as the “minister for relations with parliament and direct democracy”, has recently announced the constitutional reform strategy of the Cabinet.

Since the Conte Cabinet was formed on 1 June 2018, the denomination of Mr Fraccaro’s ministerial assignment was intended to symbolise the M5S preference for direct democracy. The M5S claims to be a ‘non party’ (therefore a ‘movement’), based on the apparently bottom-up organisation of the followers of comedian Beppe Grillo’s blog. In fact it has been entirely created via the internet and factually set up by a web marketing company (Casaleggio Associati) whose present owner, Davide Casaleggio, holds full and personal control of the movement’s official internet platform (and the related big data). The latter is significantly named ‘Rousseau’ after the Swiss-French theoretician of direct democracy.

Understandably neglecting the total lack of transparency of the Rousseau platform, Davide Casaleggio himself has recently theorised that parliaments might cease to exist in the near future and has emphasised the unlimited potential of people’s direct participation via the net. Mr Fraccaro himself, as a member of parliament, introduced a private member’s bill in 2015 that was meant to strengthen and multiply the instruments of direct democracy already present in the Italian Constitution. It was not enacted.

Before any text had been submitted this time around, Mr Fraccaro (in parliamentary hearings on 12 and 26 July 2018) and his chief adviser on constitutional reforms, Professor Lorenzo Spadacini (in a password-protected article for the think-thank Astrid), had presented sufficiently detailed descriptions of the reform package they have in mind.

It is a relatively prudent set of proposals which would be difficult to describe as revolutionary, but which must be framed within the extraordinary conditions in which Italian democracy is struggling these days. The package is based upon the premise that any ambition of comprehensive reform even only of part II of the Italian Constitution should be set aside: this approach, it is claimed, is more in line with a full compliance of article 138 of the Italian Constitution (which regulates the constitutional amendment procedure). This said, the government (not without some hypocrisy) refrained from directly submitting proposals: but has in fact offered a detailed strategy, expecting parliamentary groups to introduce one single bill for each reform along the same lines. The novelty is that the voters will be allowed to cherry-pick among a series of single texts, one for each item. This might be justified by the fact that the announced amendments are in fact punctual and allow such an approach.

Here is the list of proposals:

1. A significant cut in the number of MPs (while not touching the powers of each chamber which in Italy are the duplicate of the other): to 400 MPs for the Chamber of Deputies and 200 for the Senate (a reduction in size similar to that proposed by former premier Matteo Renzi in 2014);

2. Removing the National Council for Economy and Labour from the Constitution (without necessarily abolishing it);

3. Introducing an appeal to the Constitutional Court against parliamentary decisions concerning electoral complaints (today, according to Article 66 of the Constitution each chamber shall verify the credentials of its members and the causes of ineligibility and incompatibility that may arise at a later stage). This is an innovation often proposed in the past;

4. A set of innovations concerning referendums, which constitute the bulk of the proposed changes.

The Italian Constitution currently provides for three kind of referendums:

1. A referendum may be requested under Article 138 of the Constitution after parliament has passed a constitutional amendment, in cases where such approval was by less than two-thirds of the total number of the members of each chamber;
2. A referendum on the institution of new regions or on the merger of two or more regions, in line with Article 132 of the Constitution;
3. And, by far most importantly, revocatory referendums, by which 500,000 voters or five Regional Councils may request a public vote in order to repeal an existing law (or single provisions within it), under Article 75 of the Constitution.

Since 1948 there has been no referendum in line with Article 132; there have been three referendums under Article 138 and 67 referendums triggered as a result of Article 75. The latter procedure cannot be used in all circumstances: the Constitution lists matters in relation to which a referendum may not be requested (international treaties, budgetary and fiscal provisions, amnesties and pardons). The Constitutional Court is in charge of evaluating if a request for a referendum is valid and its jurisprudence has introduced additional pre-requisites, regarding how the question submitted to the voters must be formulated (it has to be intelligible and internally consistent). Just as importantly, there is a turnout threshold of 50%+1 — if the threshold is not reached, the result is declared null and void regardless of the size of the winning side’s majority. Finally, parliament may choose to radically change the law on which a request has been introduced or to repeal it: in this case, the referendum is not held.

All this explains why just 82 of the 159 referendum requests since 1970 have been accepted. Of those, only 67 resulted in a referendum actually being held; 39 have been considered valid, and the yes campaigns have prevailed in 23 cases (out of the initial 159, this is a success rate of less than 15%).

How does the populist alliance propose to change the Constitution in relation to referendums?

Firstly, it intends to abolish the validity threshold created by Article 75 of the Constitution. Secondly, it plans to introduce a strengthened popular initiative process. Under the new system, a bill proposed by 500,000 voters would have to be discussed and passed by parliament within 18 months; if this does not happen, it would be submitted to a referendum.

The promoters of the initiative would be entitled to renounce it in case of agreement (assumedly with parliament) on a different proposal; otherwise both the initiative and the parliamentary text would be submitted to the voters who could choose their second best option. Express reference is made to the Swiss model: although the Italian prototype would exclude constitutional amendments, and the initiative would have to respect principles and fundamental rights guaranteed by the Constitution as well as European Union and other international obligations. This is very relevant because in the past the two parties of the majority have mentioned the possibility of a referendum to decide Italy’s continuing participation in the EU. Unfunded initiatives would also be excluded and it would be for the Constitutional Court to decide whether an initiative could be admitted or not.

All in all these proposals are by no means subversive. The 2007 Code of good practice on referendums by the Council of Europe suggests the abolition of validity thresholds. The argument is that it offers the upper hand to those who oppose a referendum request (it is easier to convince 5-10% of voters to abstain rather than more than 50% of those who vote to say no: the Italian experience since 1990 proves this, with 28 invalid referendums out of 67). The need to intervene has been previously acknowledged in the form of the Renzi proposal of 2014, which would have maintained the threshold, but proposed lowering it to 50% of the turnout of the last elections. The popular initiative as imagined would also not be a scandal in itself, if properly regulated.

The problem, unfortunately, is upstream: I refer to the Wild West of the internet and in particular of social media where in different ways disinformation has altered the level playing field among parties, candidates, and referendum committees. Italy is a showcase of to what extent disinformation may impact voters’ opinions and choices: it is the sole country where a tech company has been able to generate a social movement exclusively using the internet, and transform it within a decade into the most voted-for party in the country thanks to the shrewd use of disinformation in all its forms (character assassinations, use of ‘fake news’, extensive employment of trolls and bots, manipulation of internet consultations, and so on).

Conclusion

Until disinformation is tamed at least in part and the public made more aware of the threat it poses, it seems hazardous to rely on more direct democracy than that provided in the already very permissive Italian Constitution. As a zero-sum decision making procedure, a referendum is particularly at risk of being influenced by emotional arguments and deliberately misleading information. Brexit is proof of this, despite it being approved by a constituency much more literate and less likely to be deceived by false perceptions than Italy. The fact that the country’s most popular ‘party’ is directed from above by a private company, and not the product of a grassroots movement, shows how much of an illusion the concept of direct democracy can be.

About the author

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