The following is the text of a memorial lecture I gave for Dr. Gerhard Loewenberg on the occasion of his first yarzheit. I delivered it remotely on behalf of Beth Israel Congregation in Ann Arbor; I explain how it came about in the lecture itself. The following text includes some paragraphs that I had to skip in the live session (viewable on YouTube) due to time constraints.
Comparative Legislatures: Or What America and Israel can learn from Germany
The legislature is the single most important institution of a democratic political system. Yet legislatures are puzzling in terms of how they are able to function, and they tend to be disliked, even reviled, by democratic publics everywhere. Professor Gerhard Loewenberg dedicated his professional life to advancing the comparative analysis of legislatures, and in his last book, published in 2011 (other than his highly engaging memoir from 2012), he wrote about how puzzling the legislative institution is.
On the one hand, he wrote, a legislature consists of technically equal representatives. Each one, upon being seated after having won an election, has the same status as any other. Every one has just one vote on any matter that comes before the chamber for decision. A legislature is a collective body, comprised of equal individual legislators. Yet, as we know from some of the most important studies of social science, collective decision-making is difficult and prone to failure—unless some institution or leader within the legislature is endowed with authority to set the agenda, control members’ speaking time, and otherwise manage the proceedings. Of course, as soon as someone has been given power to do these tasks, by definition the legislators are no longer equal. Some of them have been awarded additional power over the others, some will not be able to speak as much as they wish, and various rules will limit the admissibility of amendments to bills that legislators may hope to advance.
Moreover, given the complexity of decision making for a modern society, no one legislator can possibly be knowledgeable about all the issues that come before the body demanding a decision. So, legislative chambers establish committees and other means of having some legislators specialize in one set of policies while others specialize in different topics. Again, this changes them from formally equal to at least potentially having outsized influence over specific policies. For instance, members of the agriculture committee acquire more knowledge and procedural advantage than their colleagues over policy related to food supply and farm subsidies, while members of the health committee acquire more knowledge and procedural advantage over policies in that topic. And so on.
These organizational questions—agenda control and committee structure—are among the topics that have fascinated researchers in comparative legislative studies. They are also presumably the key to why voters tend to hold legislative institutions in such disdain. Crafting legislation is something of a dark art, out of the view of most voters. And when they tune in to C-Span or equivalent elsewhere, they may like what they seen even less than they’d imagined. They will often see a mostly empty chamber, or an endless series of procedural measures that make no sense to outsiders. It is all quite “mystifying” as Jerry said in his book, On Legislatures: The Puzzle of Representation.
Yet without an elected legislature, you have no democracy. Actual democracies vary in whether they have two legislative chambers or one, whether they have an elected presidency or a ceremonial one (or none at all or even a monarch), and in whether courts can overturn legislation on various grounds. But no country would be called a democracy without having at least one chamber of a legislature elected by the citizens. The legislature is the one political institution that has the greatest claim on being able to represent a microcosm of citizen preferences and interests, and advancing majority rule, the central democratic principle. How much an actual legislature fulfills this central mission is quite variable, as I shall get into in more detail later. But no one can deny the absolute centrality of a legislature, and its representative function, to democracy.
Given the importance of legislatures to democracy, then understanding these institutions is central to understanding how democracy works, and how representation and democratic policy-making can be improved. It was for the purpose of advancing such understanding that Jerry Loewenberg not only devoted his own career, but also established an entire sub-field and an important journal, Legislative Studies Quarterly, in political science devoted to the study of legislatures around the world.
In my remarks this evening, I want to use the cases mentioned in my title—the USA, Israel, and Germany—as examples of what we can learn when we compare legislatures in different countries to one another. Because it is Chanukah, which celebrates an earlier recovery of Jewish national and cultural autonomy in our ancient homeland, this season is an especially appropriate time to reflect on the institutions that maintain the Jewish people’s newly recovered sovereignty in recent times. Moreover, Chanukah is all about bringing light into the darkest of times, as well as a season when Messianic yearnings have long been heightened in our tradition. It may seem strange to say so, especially to my political-scientist friends tuning in, but I see the study of democratic institutions, and especially the promotion of reforms to improve their performance on behalf of a nation, in quasi-Messianic terms. That is, democracy as a set of institutions for governance may be flawed, because they are human-devised. It may even be “the worst of all forms of government, except for all the others” than have been tried from time to time, as Churchill famously remarked. A major theme of Jewish tradition is establishing the Kingdom of Heaven—or more specifically, of offering a challenge to governments that fail to serve the broad interests of the community, including its cultural minorities, over which they claim the right to rule. Until the Kingdom of Heaven is established some day—and whether or not it is anyway meaningful to you that it might be some day—improving democracy is an essential task for our time. Democracy in Israel and the United States has been enduring some dark times of late. It is my hope that comparative legislative studies can shed some light on how democracy works, and how it can be improved. A tikkun, a repair, is in order for democracy. How can learning about different democracies help us think about making government work better? This is my rather lofty ambition for today’s remarks.
I will focus mainly on the comparison of the US and Israel, as the two counties’ legislative structures are about as different as any two can be. I will then ask if there might be a middle ground between the extremes represented by the American and Israeli cases. And the answer may be surprising—it is the German case. Or perhaps not so surprising, given that we are here to reflect on the contributions of Gerhard Loewenberg, who emigrated from Germany with his family before the Nazi takeover, and who returned to do research on the Bundestag in the decade-and-a-half following the establishment of the postwar Federal Republic of Germany.
But before I go into the substantive topic, I want to say a little about myself and specifically how I came to be honored with the invitation to give this memorial address.
My own field is indeed comparative legislatures, although until completing a book that will be out in the spring of 2021, most of my research has not been on the internal organization of legislatures, but rather on two aspects of how legislatures are related to the wider political system: (1) the electoral system, defined as the set of rules determining how candidates become legislators; and (2) how legislatures relate to the executive, i.e., either a prime minister or an elected president (or sometimes, as in France and Poland or the pre-war Weimar Republic of Germany, both) and the cabinet.
My forthcoming book, entitled Party Personnel, is about committees of legislatures—the German and Israeli cases (but not the US) are among the cases included; the book also analyzes the committee systems of Portugal, Japan, Britain, and New Zealand. I am the lead author, and my coauthors and I ask how the electoral system shapes the ways in which individual legislators are assigned to one committee or another. The process of assigning legislators to specific committees is, in all these cases, managed by political party organizations within the legislature.
For instance, political parties might assign their legislators according to expertise developed in their pre-legislative careers (their occupational background). Or the assignments might be made according to their ability to draw votes from a district the party needs to win (assuming the electoral system consists of large number of districts where specific local candidates run, which is not always the case, as we’ll see). These two possible motivations for parties are often in tension! Those legislators who are best at winning additional votes beyond what some “generic” party nominee might win in a local district contest may be only loosely correlated—if at all—with those who have the policy expertise from their prior occupation (lawyer, healthcare worker, teacher, farmer, etc.). And the electoral system is one of the key things shaping which criteria loom largest in a party’s decision about committee assignments. Or so we say in Party Personnel.
Only recently did I purchase a used copy of Dr. Loewenberg’s first book, Parliament in the German System, published in 1967. I was amazed when I began reading it to see how much it foreshadows the kind of questions that motivate my forthcoming book. For instance, in Table 20 of the book we find a summary of the percentage of legislators who come from various occupational backgrounds—lawyers, teachers, business owners, etc.–and it is comparative. It shows not only the figures for the German Bundestag that had been elected in 1957, but also comparable summaries for the UK, France, and Italy. It tracks, for the Bundestag and by political party, the percentage who serve on occupationally related committees (i.e., where their parties are taking advantage of members’ policy expertise) and their tendency to speak in the Bundestag on matters in their speciality vs. as generalists. All this sort of thing is in our Party Personnel book, for more recent German election years and various elections in seven other countries—but we have it a lot easier, thanks to rather bigger computer data processing power than existed over fifty years ago! It is really amazing to me how far ahead of his time Jerry was in thinking about these issues of how different legislatures and political parties make use of expertise in the legislative process. Moreover, the table is itself such a work of art; I just love these fold-out pages. I normally see them in atlases or books with panoramic photos, but the presentation of statistics in this manner is such a sight to behold!
When my coauthors and I were finishing up the draft of our book to submit to a publisher for review, we got the news of Jerry’s passing. Because it is a book on comparative legislatures, and because the path the book seeks to advance is grounded firmly in Jerry’s contributions to the field, my coauthors and I immediately made the decision to dedicate our book to his memory.
But that still does not explain why I am here, speaking at a memorial hosted by Beth Israel Congregation in Ann Arbor, when I myself am in California. For that, I have Rabbi Nadav Caine to thank. And, strangely enough, the pandemic, or more precisely how the pandemic has changed Jewish community. Rabbi Caine was our rabbi back in San Diego; we have known each other for about a dozen years. One Friday night a few months ago, my wife and I played the YouTube recording of the Beth Israel Shabbat evening service, to reconnect with Rabbi Caine and his family, leading the Shabbat service from their home. And at the section where the Rabbi reads the names of those being remembered, I heard… Gerhard Loewenberg. Could it be? It must be. And so I emailed Rabbi Caine after Shabbat. And he told me about Jerry’s daughter, Deborah, being part of the Ann Arbor community. And so, here we are together, thanks to Zoom!
I now want to turn to the substantive application of some of the lessons of comparative legislative studies—the case-study section, so to speak. I want to start by sketching some of the key differences between the US and Israeli cases. Then I will bring in the German case a little later. I will mention a few other countries along the way. Hey, it is all about comparative legislatures, after all, so we need to compare, and try to learn from, the experiences of different countries!
As I said at the start, there are few pairs of long-term democracies that illustrate the extreme poles of legislative and broader institutional design than do the US and Israel.
First of all, the US is, of course, a presidential system, whereas Israel is parliamentary. As the work of comparative legislative scholarship has long recognized, this basic difference in how the executive functions creates fundamental differences in the role of the legislature. Put simply, the most important role of a legislature in a parliamentary system is to produce—and maintain in office or dismiss—the executive. By definition, the prime minister and executive cabinet in a parliamentary system must have the support of a majority of legislators—or at least not the active opposition of a majority. If the majority wants a different prime minister and cabinet, it can act to replace them, or in most cases, an early election can be called.
(The Israeli case has recently taken this to yet greater extreme, having had three elections between April 2019, and March, 2020. As we speak, it seems likely there will be an election in March, 2021, or perhaps June. The term of a Knesset is nominally four years, but it’s looking like four elections in a period of about two years! While this is obviously not an ideal situation, I hope to convince you that it is not so bad. Instead of imposing a government supported by less than a majority of the voters—as the 2016 US presidential election did—it requires the politicians to have the backing of representatives of a majority of the voters and, when political conditions prevent smooth governance, to go back to the public to renew or revise their consent to govern.)
In contrast to the parliamentary model used in Israel and most of Europe, in a presidential system, by definition the head of the government is elected separately. Legislators in presidential systems have no role in choosing the head of government, and also are unable to depose the head before the end of the constitutional term, absent a process that requires more than a simple majority (as the Trump impeachment process served to demonstrate).
So this—the executive type—is the first major difference between the American and Israeli legislatures.
A second fundamental difference is that the US Congress is, of course, bicameral. House and Senate. Not only are there these two chambers, but they are equally powerful and elected in very different manners. Israel is unicameral. Because it is unicameral and parliamentary, the only national voting choice Israeli voters make is when they are called to the polls to elect a new Knesset.
The third fundamental difference is in how the legislatures are elected—the electoral system. Here I will take the US House and the Israeli Knesset as the first point of comparison, and then bring in the US Senate afterwards. The electoral systems for the House and the Knesset are diametrically opposed in their institutional design: In the US House, every member is elected as the sole representative of his or her district. There are thus as many districts as there are members—435. (Which, by the way, is awfully small to represent a country this large, but I’ll leave that aside.)
However, in Israel there are no districts. Or more accurately, there is one district. All 120 members are elected nationwide. Whereas a US House member is the candidate who wins the most votes in a local district, the Knesset is elected according to proportional representation. Israeli voters do not vote for candidates at all. They vote for a party list. Each list is composed of candidates nominated by the party, and given a priority ranking—what political scientists call a “closed list.” (Other types of list–“open” or “flexible” allow voters to favor one or more candidates within a party’s list.)
So given the closed lists used in Israeli elections, suppose a given list has earned 10% of the votes, Then it will win approximately 12 of the 120 seats, and the winners will be the first 12 candidates on its list. There is a threshold, currently 3.25% of the votes. A list that gets less than that will have no seats. But any list that clears 3.25% will be represented. This is a system designed so as to make room for a lot of parties, and lo and behold, it does!
In fact, based on predictive models developed in one of my earlier books, we should expect Israel’s Knesset to have about 11 lists with representation, and the largest one to have about 30% of the seats, which would be 36 seats. Thirty six happens to be just one more than the number the two most popular lists tied for in April, 2019. But in elections since then, and in many over the last two decades, the leading list has had even fewer seats—sometimes not even 30 seats (which is 25%). That’s a pretty small leading party—not even half the total number of seats needed to comprise a governing majority!
Note that I have been using “list” and “party” more or less interchangeably. Nonetheless, when talking about Israeli elections and Knesset politics, these terms are distinct. Often there are lists that are presented by alliances of two or more parties. For instance, the Joint List consists of four distinct parties representing Arab citizens of Israel, the Yamina is a list of various ultra-nationalist and Religious Zionist parties, and Blue and White contested the last several elections as an alliance of three distinct centrist parties.
The key is that the electoral system works by allocating seats proportionally to lists, and is designed so as to allow many such lists to win. The most recent election, for example, resulted in just 8 lists getting seats, somewhat lower than the typical 10-12. However, the number of parties is greater, and sometimes partners in elections break up and operate separately in the Knesset. In fact, this is what happened when Benny Gantz signed his coalition deal with Benjamin Netanyahu. Gantz’s list from the election, Blue and White, split, and his election partner, Yair Lapid, became the leader of an opposition party while Gantz became part of the government.
One of the most important things to understand of all this is that, (1) under the Israeli electoral system, a vote cast anywhere in the country has the same weight as a vote cast anywhere else, and (2), whatever percentage of votes a list gets, that is its (approximate) percentage of seats in the next Knesset.
In the US, by stark contrast, most districts are “safe” for one party or the other. Thus only those voters who happen to live in districts that are closely contested really participate in determining whether control of the House will shift from one party to the other. In the US Senate, of course, there is even more variation across the country in the de-facto value of a vote. California gets the same number of Senators as Wyoming, despite about a 70:1 difference in the states’ populations. And only a few states might determine whether control of this chamber of the national legislature might shift in an election—such as the flips of the seats in Arizona and Colorado this past November, and we’ll all be watching what voters in Georgia do in early January.
So let’s pull it all together. In the US, voters elect a president and two chambers of congress separately. It is thus often the case that one of these three is held by a different party than at least one of the others, as has been the case since the 2018 election and was also the case for all but the first two years of Obama’s presidency. In the US, votes are aggregated only in local House districts or for the Senate in states of greatly varying population, rather than nationally. There are only two parties of any consequence, so one will have a majority in one or both chambers, and one will have the presidency, but again, no necessary partisan alignment across these institutions. And elections occur at fixed intervals, so if they can’t work together, we get gridlock instead of the Israeli recourse to an early election.
In Israel, there is only one national elected institution—the legislature. There are many parties, and the contest for votes and seats is fully nationwide. The prime minister and cabinet are products of bargaining among parties after an election to determine who can form a coalition capable of holding majority support in the Knesset. The cabinet might fall early, before the next scheduled election, if one or more parties decide not to continue working with their partners. And there can be an early election.
In the Israeli system, there is no local representation, except that a party might choose to place a former mayor or someone else with a local connection somewhere on their list (something they do rather rarely). Unlike in the US, Members of the Knesset have no local base in the sense of a place where voters have chosen them as an individual representative.
For all the reasons just sketched, these two systems are as extreme as they can be in terms of what legislators represent and how they relate to the executive. The question thus might arise of whether it is possible to split the difference between these extremes. I will focus on just one dimension here—how the legislators are elected.
As I pointed out earlier, in the US, every legislator is elected in a unique district. That means, his or her election depends only on voters in one geographic subset of the country—435 different ones in the case of the House. (And each state in the case of the Senate.) By contrast, in Israel, they are elected in one national district, and on closed party or alliance lists.
Each of these has some basic advantages and some disadvantages. On the one hand, the US system makes life difficult for minor parties. Now, here I need to take a little excursus and interject something that even many of my political science colleagues get wrong! We have something called “Duverger’s law”, although calling it a “law” is a sure way to trigger me!!!
I will try to spare you my long screed against it, but here is the short version. The famous French sociologist, Maurice Duverger, pointed out in the early 1950s that it is hard for parties other than two major ones to win seats when each member is elected by plurality (winner take all) in single-seat districts. This he called the “mechanical effect” because it concerns how the electoral system works to assign seats. And if it is hard for them to win seats, they don’t get many votes—voters don’t want to “waste” their votes on parties that can’t win. This is the so called psychological effect, also known as strategic voting or “lesser of two evils” voting.
The logic is sensible, but it is overstated. It certainly is not a law in the scientific sense (Duverger himself never claimed it was—he just said it was close to being a “true sociological law”). And it certainly is not a law in the sense of a binding constraint on voters or political elites. Nor should we expect it to be. In work that I have done with Rein Taagepera, we show that when there are a lot of districts—even ones electing just a single member, as in the US—there is a theoretical reason to expect parties beyond the top two to win some of those seats and to get significant vote percentages, even to the point of receiving votes in districts where they finish in a distant third place and thus are unable to win locally. And, empirically, this is true in other countries using the single-seat winner-take-all rules—Canada is multiparty, for instance. In the last Canadian election, the Liberal Party won only 33% of the votes and it was overrepresented, due to the non-proportional electoral system. But because it has 46% of the seats, short of a majority, it must take account of the views of other parties in order to govern.
The UK also has multiparty politics, albeit a lesser degree than in Canada. In 2010, a two-party coalition government formed, and after 2017, Theresa May’s government was in a minority in the House of Commons, because of the success of some smaller parties in winning seats.
So the US is a real outlier in having a rigid two-party system even given its electoral system, and even given Duverger’s so-called law. We should have more space in our congressional elections for Greens and Libertarians, and others, even without changing how members are elected. Nonetheless, it is true that it is much harder to get multiparty politics and minority representation using our electoral system than it would be if we used proportional representation.
Additionally, local representation really matters in US elections. It probably matters less than it used to, because voters are much more likely to vote straight party tickets nowadays than they were back in the 1970s and 1980s. (In those days, many districts had Democratic House members but the voters therein had favored Nixon or Reagan for president). Even with stronger party-line voting, we still see House members advertising what they have done on behalf of local communities and Senators emphasizing issues of concern to their states. They are local representatives even as they are also partisan actors. And this is a good thing! Local concerns that cross ideological and party lines need attention from policymakers as much as national policy challenges do.
So the US system makes it hard for minor parties to prosper, which is in many respects disadvantageous, particularly as the parties have become more distinct ideologically (“polarization”) in recent decades. But the US system offers local representation, which is in many respects advantageous.
In the Israeli case, there is certainly no problem with small parties getting seats! In fact, almost anyone—even a strong advocate for proportional representation and coalition governance like myself—would say in Israel the fragmentation of the choices into many small parties goes too far. It makes the formation of governments with a clear agenda for national policy challenges exceedingly difficult, and recently has resulted in three elections within eleven months because of the difficult interparty bargaining.
Yet a very big advantage of the Israeli system is that votes cast anywhere in the country contribute to the seat totals for their preferred parties (as long as they get at least 3.25% of the overall vote). So voters are equal, and the weight of my vote does not depend on the preferences of people who happen to live near me, as is the case in so much of the US where we might live in a safe state or district for one party and thus be essentially ignored at election time (even in presidential elections, given the electoral college).
And a very big disadvantage of the Israeli system is the absence of local representation. Now, of course, Israel is a much smaller country than the US. But there are still are significant differences across the territory in terms of local infrastructural or other needs, and these do not get represented well in the legislative process for a very basic reason: no legislator in Israel is in any way accountable to local voters. The closed-list system means that they win solely based on their rank on the list, and how well their party performs in the nationwide vote.
So, I asked earlier whether it might be possible to combine the advantages of these two systems without taking in the disadvantages. Yes! Enter the German system.
In Germany, the members of the Bundestag are elected in what electoral-system terminology refers to as “two tiers”. There is one tier that consists of single-seat districts, thus resembling the American system (or those of Canada and Britain) in which a legislator is elected upon winning a plurality of votes in a geographically defined district. This election method comprises about half the seats in the Bundestag.
The rest are elected in another tier from party lists, thus resembling the Israeli system. Each voters has two votes—one for a local representative (winner take all in their district) and one for a party list. The party list vote is more important for the overall composition of the legislature, but the separate district vote ensures candidates pay attention to a local area, have an incentive to become visible to voters and—crucially–that even a party that loses the local contest will tend to nurture support at the district level.
The way the two tiers are inter-related in the electoral law ensures that the overall balance of parties in the Bundestag is almost perfectly proportional to their nationwide vote shares—just as in Israel. There is a 5% threshold (thus somewhat higher than Israel’s). Under this arrangement, a party’s total number of seats is a mix of however many seats it won in the district tier, plus a number from its list needed to reach its proportional share of the total. Small parties often have only list seats, as they may not have any local wins. (I am glossing over some details here, but this is the general picture.)
The German system, often called mixed-member proportional (MMP), thus ensures that a vote cast anywhere in the territory is just as valuable as one cast anywhere else, in terms of contributing to the overall balance of partisan forces in the national legislature. In this sense, it is like Israel’s system and very unlike the US system.
At the same time, it also ensures local representation, like the US system but very unlike Israel’s.
(As an aside, I want to add that about 25 years ago New Zealand changed from single-seat plurality elections to MMP, modeled on Germany’s system. It has been a smashing success for their democracy. So electoral system reform is both possible, and beneficial. An example we could follow.)
Taking the two features together, Germany has coalition governments (as does New Zealand now), but not involving as many small and otherwise incompatible parties as we see in Israel’s coalitions. Germany also has local accountability that really matters. My own research and that of others confirms that members spend time in their districts, and often come from local roots including prior electoral offices or other ties to their communities. And, as we show in the Party Personnel book, committee assignments in the Bundestag are allocated according to a logic by which parties take advantage of expertise (occupational background), but crucially also to take advantage of local variations in party support and policy demands. (We also see this balance of representation criteria having emerged in NZ since they changed to a German-inspired MMP system.)
It has obviously worked quite well, in that Germany in the postwar period developed one of the most robust democracies and probably the strongest legislature in Europe. In fact, the development of that legislature was one of the recurring themes in Jerry’s career, from his very first book (in 1967, as I mentioned earlier) right up to his last publication, which was a remarkable essay published in a German journal (but in English) in 2018, reflecting on the choices made by both the Allied powers and the new German political class that laid the groundwork for the Bundestag’s development.
(Before I close out the section on Germany, I want to note that Germany is a federation of states, like the US, and it has a bicameral parliament. The other chamber, the Bundesrat, is a great model that Americans could learn from! Its members are chosen by state governments, and it has a veto on on legislation that directly affects the states, instead of on all national policy like the US Senate. It therefore deftly balances the state-interest and national-interest tensions inherent in federalism.)
Legislatures, as Gerhard Loewenberg showed us, are puzzling institutions. In democracies, they consist of formally equal individual representatives who somehow must organize themselves to make collective decisions on behalf of the citizens they represent. They are essential to democratic governance, yet the very procedures that they devise in order to function make them mysterious to the average voter, who is quite likely to associate the body with the worst features of politics.
We can learn a lot from comparing legislatures in different countries, as Gerhard Loewenberg’s long and distinguished career taught us. Both the US and Israel, as well as other countries, can learn from the German experience of how to balance seemingly contradictory goals of legislative and electoral institutional design. While there will never be a perfectly functioning democratic legislature for the simple reason that societies and the people who comprise them are complex, a process of scholarly and public enquiry into how different systems work can bring us towards a better understanding of how to make democracy work better, both in our own country and elsewhere.
Chag sameach; Chodesh tov. Happy Hanukkah, and a good new month. And may Dr. Gerhard Loewenberg’s memory be a blessing and an inspiration.