The Italian Constitutional Challenge: An Overview of the Upcoming Referendum

As it is well known, Italy is in the midst of a great constitutional reform, which–if approved by the referendum that will be held on December 4th–will modify 47 Articles of the Constitution (corresponding to 33% of the whole Constitution). This reform represents the biggest and the most ambitious change of the Italian Constitution since it was approved in 1948, trying to succeed where several bicameral commissions failed: the reform of Italy’s so–called “perfect bicameralism”.

This is probably the core of the reform, together with the definition of the legislative powers of the State and the Regions, which today represents–after the failure of the “federalist turn” in 2001–one of the most controversial and conflictual chapters of the Italian system (see Morrone, 2016).

The original intent of the reform proposed by Prime Minister Renzi and by the Minister of Reforms, Maria Elena Boschi, is to correct the inefficiencies and the redundancies of the current constitutional setting, which over time has produced government instability and weakness, long legislative procedures, a higher rate of conflicts between the State and the Regions, often solved only after the intervention of the Constitutional Court.

With regard to the Italian perfect bicameralism, which represents a unicum within the comparative landscape, the reform aims to introduce an “asymmetric” bicameralism, regarding both the Senate’s composition and its functions.

The Senate will represent the territorial institutions (art. 55.1) and its 100 members (instead of the current 315) will be elected indirectly by the regional councils, in part within their members (74 Senators) and in part among the mayors of the municipalities within the Regions (21 Senators). The five remaining Senators will be appointed by the President of the Republic and their mandate will last for 7 years (exactly the same as the mandate of the President of the Republic).

We can identify three possible cleavages within the Senate: the political, the territorial and the institutional (Lupo 2016). The critics of this constitutional design contest the real “territorial representativeness” of the Senators: some scholars argue that such an electoral system will produce a “politicization” of the Senators, who will vote according to political guidelines rather than according the interests of their territories. Of course, this is a possible outcome, but the prevalence of one cleavage on the others cannot be theoretically predicted, and it will depend on how the Senators will interpret their role; we can say that it is a matter of political culture rather than of constitutional design.

What is remarkable is that the Senate will be excluded from the confidence relationship: the vote of confidence will tie the Executive only to the Chamber of Deputies, which will be the political chamber, as is the case in Germany, for example.

With regard to the legislative process, while today all bills have to be passed by both chambers with the same text, this reform introduces a differentiation on the basis of the type of law at stake. We can count several different legislative processes, in which the Senate will intervene at different degrees.

We will have few bicameral laws: laws on constitutional revision, laws on linguistic minorities, on referenda, on the attribution of new and further powers to the Regions, on the functions and on the electoral legislation of municipalities and metropolitan cities, and on the Senate electoral law.

As to the other side of the reform–the proposed constitutional amendment aiming at rationalizing the relationships between the central government and the regions in the field of legislation–the main change consists in the abolition of the so–called shared competences, i.e. a long list of competences in which the central government is entitled to enact only the general principles of the matter and the regions in turn enact the details that give flesh to the principles.

This part of the present constitution–that was heavily reinforced in the previous constitutional reform of 2001–has given rise to a large number of conflicts between the State and the Regions, decided by the Constitutional Court. Those conflicts arose because of the difficulty in identifying the difference between principles (whose identification was committed to the central government) and details (committed to regional legislation). Moreover, some fields of action (such as the regulation of national energy or the decisions on interregional infrastructures) included among the shared competences are considered a clear error, made in 2001 under the political pressure to create a sort of federal state in Italy.

This proposed amendment rightly corrects those errors; it gives to the central government several new exclusive legislative competences and introduces a list of exclusive regional legislative competences, so that the tasks of the two levels of government are made clear. This change is expected to avoid–or at least to diminish–the conflicts of competences between State and Regions.

As one can see, Italy is facing a two–fold challenge: a constitutional one, due to the deep reform of the Constitution–so deep that it could probably fall into the category of “Constitutional dismemberment” (Albert, 2016)–and a political and societal one, due to the very fragmented and confrontational context in which the debate over the reform has developed.

Italian society and politics are today more divided than ever: whether or not the reform will pass, a real societal change is needed, in order to rebuild a sense of common belonging–even recognizing different, legitimate positions–as it happened to our Constituent fathers fewer than 70 years ago.