Chain Reaction: Constitutional Change Through Election Law Reform in Italy–Likely Scenarios After the Recent Reform of the Parliament Election Law

—Erik Longo (University of Macerata) and Andrea Pin (University of Padua)[1]

While many people’s eyes were on UK general elections, another European country was setting out for a decisive constitutional shift. In the past, Italians repeatedly tried to amend their bicameral structure, which is composed of the Chamber of Deputies and the Senate, but they never succeeded. Now it is different: after the recent election law changes, they have to do it. The recent election law reform is a gun to the Parliament’s head. If Deputies and Senators don’t amend the Constitution, the Parliament and the Government will be stuck.

What follows is a snapshot of the status of Italian democracy, the factors that led to this point, and the (only) way out that seems to exist.

A strongly debated Constitutional Court (ICC) decision in early 2014[2] struck down strategic pieces of the existing election law for the Italian Parliament.

Since 2005, Parliament’s two Chambers (the Chamber of Deputies and the Senate of the Republic) – sharing symmetrical powers such as electing the head of state, voting confidence to the Government, and passing bills – had been governed by a controversial majority-assuring proportional system, with a huge majority prize, broad districts that elected numerous candidates, and closed-lists of candidates, which were compiled by parties with no option left to the voters to choose their preferred candidates within the same party list.

The ICC has set aside each of these features. First, it struck down the “winner’s bonus,” which granted, in the Chamber of Deputies, that the party list or coalition of lists that scored more votes than others received no less than 340 seats out of 630, and in the Senate, that the list or coalition that won in a Region received the majority of seats that were allotted to that Region. The ICC said that, since even prevailing parties that scored small percentiles of votes gained the bonus, the election law was irrational and gave the votes for the first party too much weight, when compared with what it accorded to the others. Second, the ICC invalidated the closed-list system, as it prevented voters from choosing among each party’s candidates individually and consequently violated the constitutional freedom of the vote.

After the ICC quashed the legislation, the Parliament’s election law was automatically governed by a purely proportional system, with no majority prize; the voters could select their preferred candidates within the lists. But this turned back the clock: a pure proportional system plus preferential votes had been in force until the early 1990s, and entailed multiple, conflicting parties in both Chambers and swinging majorities. The country repeatedly had tried to leave this political dynamic behind it and establish a “governing democracy,” with a crisp and clean parliamentary majority and stable governments.[3]

On April 28^th, 2015, the Italian Parliament, per the Government’s proposal, finally approved a new election law to appoint the members of the Chamber of Deputies.

The new law, which was nicknamed Italicum, tries to address the enduring necessities of stabilizing government and speeding up the country’s painfully slow legislative process. Indeed, the reform of the election law wraps up the debate begun after the ICC’s judgment and fixes a long stalemate in Italian politics.

This new election law is really a victory for Renzi’s Government. In order to prevent the law from substantial modifications during the Parliamentary process, the Government imposed three votes of confidence at the Chamber of Deputies.

The new voting system appears to follow the ICC’s indications quite closely. The bonus seats at the Chamber of Deputies are allocated to the first party, but only if it scores at least 40% of the votes. If it does, it will gain at least 55% of the Chamber of Deputies’ seats.[4] If no party hits the target in the first round of voting, a runoff will be held between the two with the most votes. The subsequent winner of this two-party runoff would automatically receive 53% of the seats in the Chamber. The law also requires that only parties that score at least 3% of the national vote participate in the Chamber of Deputies’ seats distribution.

Under the new system, constituencies are reduced in size, increasing their total number to 100; under the law that was declared unconstitutional by the ICC there were 27. The law narrows down the “closed lists system” greatly: the head of the list is automatically elected if the party wins at least one seat in the district, but the remaining seats that a party gets in the district are allotted to the party candidates depending on the number of individual votes they receive.

The electoral change will only take effect in July 2016. If the Government falls before then, and new elections are needed, then the Parliament’s two Chambers will be renovated through the purely proportional system restored by the ICC ruling in 2014. Such a system is likely to produce another hung parliament, as already happened in the general elections of 2013.

This 14-month delay before the new election law enters into force has a simple political reason. The Government and its Parliamentary coalition envision that, by then, the Senate should not need any election law at all: a constitutional amendment should transform it from a directly elected assembly of local and regional representatives into an indirectly elected one, without the confidence power over the Government and a very secondary role in passing laws.

A one-year transition for the new election law is needed because it takes a rather extended time to amend the Constitution. The amendment process requires that each Chamber approves the bill twice at an interval of not less than three months between the two votes. At this moment, the reform has been approved in the Senate and is docketed at the Chamber of Deputies for the first approbation.

After all, the tandem electoral-Senate reform stands on top of two year-long assumptions: a) the Government doesn’t fall before Summer 2016; b) the Senate reform is accomplished through a constitutional reform before Summer 2016 as well. If the Government falls, the political landscape could change and make the constitutional amendment impossible. And, if no amendment takes place before July 2016, any time after then the Parliamentary elections will be run according to two profoundly different electoral systems, which are likely to make the formation of stable majorities impossible.

Prima facie, this situation could seem a political and institutional nightmare; but it could also become the most propelling reason to finally change the Italian constitutional structure.

Through introducing a new electoral system for half of the Parliament, and promising that there would be a radical change of the Senate, Mr. Renzi has bet the pot. He has trapped his party and his majority until 2016. He is trying to achieve a major constitutional reform using the new election law as leverage—a sort of “bottom-up” change, which obliges the Parliament to change the Senate through simply introducing a new election law for the Chamber of Deputies. Here’s how:

1. No one is likely to wreck the Government and prompt new elections between now and 2016, since this would mean carrying the unbearable responsibility of having melted the coalition that would reform the Constitution.
2. If the amendment process doesn’t succeed before July 2016, it will still be unlikely that parties will call for new elections later: if these are held, the political system will be stuck. The government would enter into a phase of political stalemate in which further action or progress seems impossible: the Chamber of Deputies would be run by the party that has won the majority prize with the Italicum, while the Senate would be elected with the proportionality system put in place by the ICC’s decision, a true puzzle. Both Chambers, however, would be needed to pass laws (including constitutional amendments) and give confidence to the Government. Parties need to amend the Constitution before going to the ballots.
3. Down the road, there is a much bigger fear that dominates Italian politics and institutions. Spring 2018 is when the Parliament’s term will expire and new elections will be held, if they aren’t before. If the constitutional amendment doesn’t take place before then, two Chambers with symmetrical powers will be composed by highly different political majorities. The July 2016 deadline is an early warning to the Parliament; but Spring 2018 is a gun to its head.

All things considered, the promise that the Senate would be disempowered has justified a) introducing a new election law only for the Chamber of Deputies and b) placing the election reform before the constitutional reform. Now the Parliament – and the people, if a referendum is held – can avoid the risk of stalemate only by approving the overhaul of the Constitution. A “rational chooser” would have but one choice available.

Suggested Citation: Erik Longo & Andrea Pin, Chain Reaction: Constitutional Change Through Election Law Reform in Italy–Likely Scenarios After the Recent Reform of the Parliament Election Law, Int’l J. Const. L. Blog, June 9, 2015, at: http://www.iconnectblog.com/2015/06/chain-reaction-constitutional-change-through-election-law-reform-in-italy

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[1] Authors wish to thank Nicola Lupo for his helpful suggestions and Francesca Genova for the great editing.

[2] See Erik Longo & Andrea Pin, “Don’t Waste Your Vote (Again!). The Italian Constitutional Court’s Decision on Election Laws: An Episode of Strict Comparative Scrutiny”, ICON·S Working Paper – Conference Proceedings Series 1, no. 10/2015. Available at http://www.irpa.eu/wp-content/uploads/2015/02/ICON-S-WP-10-2015-Longo-and-Pin.pdf; Francesco Duranti, Constitutional Dialogues in Italy, I-CONNECT (Jan. 22, 2014), http://www.iconnectblog.com/2014/01/constitutional-dialogues-in-italy

[3] Stefano Ceccanti, Constitutional Change: an Explanation, 20 Journal of Modern Italian Studies 203 (2015).

[4] There are a total of 630 seats in the Chamber of Deputies: 13 seats are excluded from the bonus seat calculation, since one seat goes to the northern autonomous region of the Aosta Valley, while 12 seats are assigned to members of Parliament elected by Italians living abroad by a purely proportional system.