Fifty Shades of Republic | Part 2: presidential (gubernatorial) veto powers

This post is part of Fifty Shades of Republic, a series reviewing US political institutions at the state level

One of the most significant aspects of any presidential system is the extent of a president’s legislative power. Despite being known as the main example of a “separation of powers system”, few presidential systems really separate the classic “powers” (judicial, executive, and legislative) – instead, as Neustadt (1960) puts it in Presidential Power and the Modern Presidents, presidentialism typically creates a separation of offices which share powers.

The US constitution features a package veto subject to a two-thirds override. ‘Package’ means that when presented with a bill or resolution passed by Congress, the President can only agree to the proposal in full or veto it in full; by contrast, many presidents around the world, and governors of many US states, possess some version of an ‘amendatory’, ‘partial’, or ‘final offer’ veto. These give presidents more active power to intervene directly in the lawmaking process. In the case of a partial veto where the president can enact parts of an assembly bill directly into law (cutting through compromises agreed to in the legislature) are even arguably akin to decree powers in their scope for active lawmaking by the executive. By comparison, package vetoes are often described as a ‘reactive’ power.

In practice, however, the difference is not necessarily so clear-cut. As Moe & Howell (1999) argue, American presidents are able to engage in a great deal of unilateral policymaking (de facto lawmaking), and their ability to do so stems in large part from their supposedly ‘reactive’ veto power. Any actions (or rule-making) a president undertakes may be opposed by Congress, but any bill or resolution Congress passes to oppose presidential actions can be vetoed by the president. Given the two-thirds threshold, overrides are unlikely to be successful absent broad bipartisan support; the only remaining recourse is the courts[1]. Executive orders are often portrayed as much more constrained than the decree powers available to other presidents (which are sometimes also formally limited to what existing legislation allows, e.g. Russia), but we should always keep in mind that such a distinction is only as good as its enforcement.

Presidential veto powers in the states

All US governors (who, as directly-elected chief executives which a fixed term, are presidents) currently possess a legislative veto. North Carolina used to be an exception, as its governor had no formal say over legislation until its constitution was amended to provide for one in 1996. All states have a package veto, which is subject to a varying override threshold[2]:

  • 37 states require a two-thirds vote to override (in 27 it’s 2/3 of the total membership, in 10 2/3 of those voting);
  • 7 states require three-fifths (of the total membership in 6, of those voting in the remaining state);
  • 6 states require an absolute majority vote (always a majority of the total membership).

Where the state legislature is bicameral, override votes require the threshold to be reached in each house separately, with the exception of Alaska, where override votes are held in a joint sitting of both houses.

Many state constitutions offer the legislature some possibility of referring bills to a referendum. In at least one state (Oregon) it is fairly clear this means the legislature can bypass a governor’s veto by submitting a proposal to referendum (the standard override procedure in Iceland and de facto in Weimar Germany). However, most constitutions I have looked through are not clear on this point, as their language on ‘referendum and initiative’, present in about half the states’ constitutions, is usually ambiguous and contradictory (often in the same ways, as many states copied each other’s provisions in the early 20th century). If anyone knows more, please let me know in the comments!

Map of gubernatorial veto powers (click for full-size image)

Partial and ‘final offer’ veto power

The vast majority of states (44) grant their governors a ‘line-item veto’ – the power to enact some appropriations proposed in a bill while disallowing others (indicated on a map with a dollar sign). In 12 of those the governor can also reduce appropriations without deleting them entirely (indicated with a minus before the dollar sign). In all states, the override threshold is the same for line-item vetoes as for regular package vetoes – with the exception of Illinois, where an absolute majority is sufficient compared with the usual three-fifths.

As far as I am able to tell, no governor has the power to partially enact any other type of bill. Some states’ constitutions also clearly limit the power of deletion to items which appropriate money. In some states where the provisions are more ambiguous they have sometimes been interpreted more broadly. Infamously (and apparently uniquely), Wisconsin governors for many years successfully exploited the ambiguities in their state’s constitution to stretch their veto authority. Governors would edit bills by deleting sentences, words, digits and even letters to enact completely new legislation, with sometimes very different effects from those intended by legislature. This was mainly done to appropriations, but often also in other policy areas, since any bill with at least one appropriation item counted as an “appropriation bill”. Successive Wisconsin Supreme Courts affirmed governors’ interpretations of the rules, and the state’s partial veto was trimmed only gradually through two constitutional amendments in 1990 and 2008, and last year by a Supreme Court ruling seeming to reverse course on its previous judgements on the topic[3].

6 states add another feature to their gubernatorial veto, commonly called an “amendatory veto” in US sources (hence it is indicated on the map with an A), although it is best understood as the ability for a president to present the legislature with ‘final offer’. It means that the president can return to the bill to the assembly with some proposed amendments – the assembly can then choose to accept the bill as amended (by regular majority/majorities), in which case the amended bill becomes law, or insist on its original version of the bill, which requires whatever the usual majority or supermajority for (package) veto override is. This ‘final offer’ feature is very common across Latin America (e.g. Colombia, Mexico, Peru).

Effectively, any assembly can accept a president’s conditions for approval, even when only the package veto is allowed. The amendatory or ‘final offer’ feature formalises this possibility, but effectively also simplifies the procedure to do so, which might otherwise require restarting consideration of the bill and having to pass all three readings again before being presented to the governor. Besides anything else, therefore, this feature makes the veto procedure more forgiving of any errors in communication between president and assembly.

Veto power regarding resolutions and ‘legislative vetoes’

As I suggested above, a president’s power relative to the assembly depends in large part on the ability to veto not just bills, but also resolutions (which may not count as a “bill” or proposed legislation), specifically ones meant to counter executive action. It may also mean that whenever the legislature delegates authority to the executive branch or the bureaucracy by statute, the majority party’s ability to review executive or administrative decisions will be be limited by the president’s ability to veto such review[4].

As with the referendum, this was difficult to figure out precisely from constitutional texts. However, this much is clear: many (perhaps most) state constitutions, like the federal constitution, explicitly state that resolutions can be vetoed. Some states (e.g. Louisiana, North Carolina, Montana), on the other hand, clearly place legislative resolutions outside the reach of a gubernatorial veto. Idaho was one state constitution where I was able to find more detail about legislative delegation: the legislature can reject administrative rules, an action not subject to the governor’s veto.

Now, I almost certainly missed more examples and relevant provisions, and moreover I suspect the reality on the ground may be at least as affected by statutes and judicial interpretation as by constitutional provisions. Again, if anyone knows more I would love to hear about it in the comments!

The ‘weak governor belt’

This post is already fairly long, so I will conclude with just one observation: there is a sizable share of the states where the governor is comparatively weak, since they cannot join with a minority in the legislature to block a bill. In most of these states (indicated on the map in yellow), the governor may use the line item veto to undo a compromise she disagrees with on appropriations, but in other areas, the governor’s veto will mostly serve as a test of the legislative coalition which passed the bill. If the coalition was fragile, or if its initial success owed too much to abstentions, the override may fail, but there is no need to appease a minority for an override to succeed. In principle, legislative deadlock cannot result from divided government between president and assembly, only from things internal to the assembly or its parties.

Interestingly, these ‘weak governor states’ happen to all border each other; moreover, most of the states with a 3/5-override veto border these states as well. I haven’t really looked into the history of this geographic pattern, so I don’t know if it was the result of some manner of institutional diffusion – maybe some of our readers know more.

At any rate, what is clear is that there is meaningful variation on this point within the United States (variation which often seems to go unnoticed – multiple articles I’ve seen about a veto override in Kentucky or Arkansas failed to mention that the override takes just a majority in these states). Looking to these states’ experience with executive overreach and other consequences of the usual veto power should provide fruitful for research, and would be easier for reformers to emulate than any foreign example.


[1] Courts which are appointed by the president. Democratic and Republican presidents may disagree on many things, but they all favour increasing presidential power, which influences their choice of judges.

[2] At least two states have an override threshold of three-quarters in a few selected areas: in Alaska this applies to money bills; in Arizona this applies to some specific cases (e.g. amendments to enacted popular initiatives, emergency bills, raising taxes) where the minimum requirement is already a two-thirds majority.

[3] Although the ruling’s ambiguity (caused by the multiple separate opinions offered) and its potentially partisan motivation (it has been a fairly conservative court, and the incumbent governor is a Democrat) suggest it may not be the last word on the matter.

[4] Though this ultimately depends on what kind of review the constitution allows the legislature to write into statute (or the judiciary’s interpretation of the constitution on this point – which in the case of the US federal government has certainly been very narrow).

UK MPs “plot” to do their job

As the expected “meaningful vote” on the EU-UK withdrawal agreement looms, and the legally mandated Brexit day (29 March) draws closer, it is worth thinking clearly about what the relationship is between the House of Commons and the executive in the UK system. As it happens, this is the week in my Ph.D. seminar on party and legislative organization in which we read a couple of items specifically about this relationship. Understanding the relationship is important if for no other reason than to inoculate oneself against headlines like this one in the Sunday Times yesterday:

Revealed: Commons plot to seize control from Theresa May ahead of Brexit vote

The print version even had a headline about a “coup”. It is bad enough when the newspapers and talking heads refer to a vote within a party on the continuance (or not) of its leader as a “coup”. It is just that much worse when the possibility of elected representatives taking back power from the executive is so branded.

To be clear, when a collective body to whom a leader (or other collective body) is responsible seeks to replace or diminish the authority of the latter, it is not a coup.

The specific potential actions that got the Times and “one senior figure” quoted therein so worked up is summarized as:

At least two groups of rebel MPs are plotting to change Commons rules so motions proposed by backbenchers take precedence over government business, upending the centuries-old relationship between executive and legislature.

Let’s be clear about something, shall we? The executive in a parliamentary democracy is an agent of the assembly, not vice versa. Thus if a majority of the House of Commons seeks to clip the wings of its agent, this is a principal acting as it should.

It is a separate question as to whether existing statutory law permits a change in control over the order of business, or whether statute first would have to be changed. That is, parliament may already have delegated away some of its rights to make day-to-day changes in business. If that is the case, these “rebel MPs” may be out of luck in the short term, and given the press of time (the Brexit deadline), the short term is rather important. Yet clearly they would have the right, under the structure of the political system, to make an effort to take back powers currently given to the executive.

A second critical point here is that the claim of a “centuries-old relationship” is just plain wrong. On this point, it is indeed helpful that I have just re-read Gary W. Cox’s masterful The Efficient Secret (1987), wherein the author traces exactly the process by which backbenchers relinquished their capacity for legislative initiative (and the emergence of an electoral connection between voters and the executive). The timeline provided by Cox makes clear that there was no single watershed date on which parliamentary power of initiative was abolished. More to the point of the preceding quote from the Times, Cox shows that this process of delegation took place in the middle of the 19th century. Thus we have something less that a “centuries-old” precedent, even if it is undoubtedly true that the executive generally has dominated the agenda of the House for quite a long time.

Cox also makes clear that this relinquishing of initiative did not take place without a fight–MPs regularly resisted efforts to centralize agenda power, but ultimately gave in because it served their own collective interests.

Of course, if a delegation of authority ceases at some moment to serve the collective interests of parliament, what has been delegated can be taken back. At least in principle, as again, if it requires statutory change rather than a procedural motion, it is somewhat more difficult to pull off.

Nonetheless, the governing Conservative Party (which is in a minority in the House) is evidently worried. Today in the House proceedings, there was a series of Points of Order, including several raised by Conservative MPs about scenarios like those sketched by the Times. The exchange is worth watching, at least for those of us interested in parliamentary procedure and executive-legisaltive relations. The exchanges run just over 16 minutes, from around 18:11 (when Prime Minister May answers her last question about her earlier statement to the House) to 18:27 (the last response by the Speaker to the various Points or Order).

The Speaker indicates in one of his responses (to Charlie Elphicke) that it is indeed his understanding that a “statutory instrument” currently can be raised only by a Minister of the Crown. Nonetheless, the next MP to raise a Point of Order (Nigel Huddleston) asks the Speaker to clarify whether MPs are indeed equal, with full access to information about any changes of procedure. (This is a pretty remarkable question!) Then in response to the final Point of Order of the exchange (Matt Warman, who says his constituents have raised doubts about the role of the Speaker), the Speaker says he will defend the rights of the House against “agents of the executive branch”.

Today’s discussion comes against a backdrop of a claim by hardline Brexiteer Tories that the Speaker upended some precedent on procedures in December and again just last week. The issues in question concern what the House can do if, as widely expected, the meaningful vote results in parliamentary defeat of the withdrawal agreement.

The upshot of all this is that the House is not quite as weak as it is often portrayed, and it may be prepared to reassert itself. As Ed Miliband stated in an intervention in today’s debates, the executive works on behalf of the parliament. It may be something that gets forgotten at times, especially by journalists and taking heads. But it is a basic fact of parliamentary democracy.

It is not only journalists and talking heads who forget about the importance of parliament. It is also academics, as another book on my seminar reading list for this week notes. Meg Russel and Daniel Gover’s Legislation at Westminster (2017) offers a much welcome corrective to the mainstream understanding. They push against the “parliamentary decline thesis” and offer a rich analysis, both quantitative and qualitative, of how parliament (both chambers) actually has substantial influence on legislative output. Some of this influence is due to relatively recent changes in parliamentary organization (e.g., changes in the 1970s to institutionalize the select committee system). Again, this serves as a reminder that “precedent” that gives a dominant role to the executive comes with all sorts of caveats, and is subject to occasional rebalancing. In any case, it is not a “centuries-old” precedent, but rather more recent. And it could be that Brexit is showing that it is rather fragile, too.

We may be witnessing a reassertion by the House of its rightful role in determining what course of action its agent, the executive, shall follow.

Turkey, 2018: Unusual alliance behavior

On 24 June, Turkey has concurrent presidential and assembly elections. These will usher in the new constitution, under which Turkey becomes a presidential system. (The current system is premier-presidential, having changed from parliamentary with the adoption of direct presidential elections.)

The election was called earlier than necessary in an attempt by the president, Recep Tayyip Erdogan, to catch the opposition unprepared. However, unexpectedly, several opposition parties have assembled joint lists an alliance (see clarification below) to contest the assembly elections. Polling suggests that they could win a majority.

The coalition behavior of the opposition is unusual in that it features parties running in a pre-election coalition for assembly elections while running separately for a concurrent presidential election. I know of few cases of major parties behaving this way. It makes sense, however, in that Turkey’s 10% nationwide threshold for assembly seats makes for potentially high disproportionality (so much so that I questioned whether it was “democratic” several years before the crackdown that followed the attempted coup). On the other hand, the presidency is elected by two-round majority, meaning first-round divisions do not necessarily prevent a group of parties eventually getting one of their own elected. (See Chile 2005 for another example of such unusual alliance behavior.; also Taiwan 2012.)

The Peoples Democratic Party (HDP), which counts on Kurdish support, is running separately. It cleared the threshold in both elections of 2015 (a, b), and may do so again.

______________

Zeynep Somer-Topcu clarifies, regarding the assembly alliances:

Ballot had each party and then a larger box for the alliance. You could just stamp anywhere within the box for alliance (if no party preference). Threshold applies to alliance but each party’s MPs enter based on their parties’ vote shares once alliance passes threshold.

(via Twitter, presented here with her OK)

I think it is quite unusual for alliances to work this way, allowing vote pooling across separate lists to help drag smaller parties over a threshold.

President of South Korea announces constitutional reform proposal

South Korean President Moon Jae-in has announced his support for amending the South Korean Constitution to allow presidents to serve two four-year terms, instead of the current non-renewable five-year term. Moon, of course, came to office following the impeachment of Park Geun-hye, who became embroiled in a corruption scandal at the end of her non-renewable term: a similar fate befell her predecessor, Lee Myung-bak, who was recently arrested for a wide range of corruption charges.

Presumably, the idea behind this proposal is that it will encourage presidents to improve their behaviour at the end of their terms, given that they will be entitled to seek re-election. The proposal would also mean that members of the National Assembly would serve terms of the same lengths as the President, although elections to the two offices would not become concurrent–indeed, given that Moon’s term expires in 2022, and that the National Assembly’s term expires in 2020, it would shift South Korea to having legislative elections consistently in the middle of presidential terms.

The proposal has a number of other features. The Prime Minister will no longer be expected to act “under order of the President”, the voting age will be lowered from 19 to 18, and the President is no longer able to appoint the head of the Constitutional Court. However, there would appear to be no change in how the Prime Minister is appointed or removed: the Assembly can only pass a motion recommending that the PM or a minister may be removed, which both Samuels and Shugart (2010) and Robert Elgie have interpreted as not being sufficient for semi-presidentialism. The Prime Minister will also remain nominated only by the President (subject to Assembly confirmation).

Passage of the amendments requires approval of two-thirds of the National Assembly and majority support at a referendum with a majority turnout threshold. Moon’s Democratic Party only holds 121 seats in the 300-member assembly, and the opposition right-wing Liberty Korea Party holds 116, giving that party veto power over any potential amendment. That party appears to oppose the amendment proposal, instead apparently supporting a switch to semi-presidentialism, although the Democratic Party could block that. Moon’s proposal has greater public support, although the vast majority of the electorate support at least some change.

Bargaining failures in presidential and parliamentary systems

This is just a quick collection of thoughts, mainly due to my having seen on Twitter evidence of misconceptions about how these things work (shocking, I know).

With the US in what is technically a funding gap, colloquially known as a shutdown, some folks have pointed out that parliamentary systems have their own variant of this problem. The reference is, of course, to prolonged situations with “no government” after an election.

This is a false analogy.

Lack of a new government while negotiations are ongoing is nothing at all like a furlough of public employees or the closing of services. Nothing at all!

Failure to form a new government is not common in parliamentary systems. Usually after an election it takes anywhere from days to a couple months (shorter than US administration transitions). There are rare cases when it’s longer, such as Germany right now or the Netherlands for part of 2017.

In the interim, things keep going along as they did before the bargaining impasse (or before the election). Services are delivered, employees are paid, etc. If there is an analogy to situations in the US where bargaining over a new budget fails, it would be to a continuing resolution. The difference is that, whereas a continuing resolution requires the House, Senate, and President to agree to continue current levels of funding, the equivalent in a parliamentary context is automatic.

So does that mean that “unelected bureaucracies” get to “do as they please” while the politicians are trying to sort out their differences? (I saw someone claim that!) No, not at all. That’s the sense in which it is like a continuing resolution. The bureaucrats go on doing what they do, until such time as they have new instructions. The new instructions come in the form of a new government being agreed, which goes about implementing its program (which is generally laid out in a public “coalition agreement”).

(Related: It is also worth noting that parliamentary systems typically have nothing like “lame duck” administrations and legislative sessions. A caretaker during the transitional period, before a new government is agreed,  can’t take new initiatives.)

If the parties do not agree to form a new government, it means there is no majority in parliament that prefers some agreed new program over the status quo (the “continuing” part). If the process is protracted–or it becomes clear early that there is not such a majority–there usually can be recourse to an early election to let the voters resolve the deadlock. (If polls suggest the result would be the same, they’ll just keep on continuing till some combination of parties finds a new program it prefers, or the polling shifts enough to suggest the bargaining context would change after an election.)

Let’s go back to the point on bureaucratic agencies. Bureaucratic oversight is a different matter. US bureaucracy is indeed relatively more constrained than its counterparts in most parliamentary systems, but that does not mean that the parliamentary situation–with or without a bargaining impasse–is in any sense one of bureaucrats being powerful and unconstrained.

In many (not all!) parliamentary systems, civil servants within bureaucratic agencies can be given discretion to do their jobs precisely because it’s easier for politicians to rein them in, if necessary. There is only one political principal (again, not always), which we can think of as the parliamentary majority, although in a more immediate sense it is the cabinet. And that means either the caretaker cabinet that continues in the absence of a new government, or the electorally legitimated new government that is formed.

In the US each principal (executive, House, Senate) has to worry that the bureaucracy might follow the other. Plus it is generally harder to change law (three veto gates). So there are both incentive and capacity to bind the bureaucracy ex ante. Whether one form of bureaucratic oversight is “better” isn’t clear. It gets complicated. The main point is that the structure of agencies and the process of oversight and constraint “mirror” the wider institutional set-up and distribution of political power.

Does all this mean that parliamentary government is clearly superior because it is inherent to presidentialism that bargaining failures over spending and policy occur, with no way to resolve them? That is, because there’s no way to get a new government or go to elections? Well, that’s not so clear! A funding gap or shutdown is not actually inherent to presidentialism.

There aren’t any other presidential democracies that I know of where a funding gap could happen. Most such constitutions have either an automatic equivalent of a continuing resolution, or a reversionary point that favors the executive’s proposal.

I would tend to agree that there are lots of reasons to prefer multiparty parliamentary bargaining over the inter-branch kind the US has, or other (pure) presidential systems have. But there are lots of other models, and even the other presidential ones do not have this recurring problem, due to differences in institutional design and budgetary rules.

The Polish president’s veto

Polish President Andrzej Duda has exercised his veto against two of the government’s bills to change the appointment of judges. Media accounts are treating this action as a “surprise”, but it really should not be seen as such. Both the government (premier and cabinet) and the president (directly elected) are of the same party, Law and Justice (PiS), yet the institutional dynamics make the action unsurprising.

First of all, such a possibility was signaled by the president on 18 July. Secondly, the theory of presidentialized parties (Samuels and Shugart, 2010) should make presidential action against their own governing party’s controversial decisions the default expectation. That is, the institutions “predict” such actions, and it is politics that sometimes intervenes and prevents the president from acting on his or her independent mandate. In this case, the institutions prevailed.

Duda is not the leader of the party in the sense of who holds the formal organizational title; that would be Jarosław Kaczyński, a former premier. But that fact only makes today’s veto by the Polish president an even better case for demonstrating the power of the argument. The fundamental point of my book with Samuels is that parties face a “moral hazard” problem under presidentailism, due to separate survival (fixed terms). Once a presidential candidate has won the election (separate origin), he is no longer an agent of the party. He now has (potential) incentive to respond to his wider constituency and head-of-state obligations, even when those might conflict with the party that nominated him. He is secure in his fixed term against efforts by the party to restrain him, unlike a prime minister (who, by definition, can be dismissed by the assembly majority or by the party).

One manifestation of presidentialization of parties can be the reversal of the principal-agent relationship, such that the president redirects his own party, making it his agent, rather than the other way around. But–we point out in the book–this is only one possibility. Another is that the president and the party face conflict–an intraparty separation of powers.

The latter seems to be the case here. I heard a BBC interview earlier this morning with an official of the PiS party. He slammed the president for going against the party’s manifesto, and said that the government (which is a single party, with a majority) should be allowed to implement its promises, including judicial reform. The statement overlooks a key institutional fact: Poland is not parliamentary, but semi-presidential. The president is freed from the manifesto by virtue of his separation of origin and survival–that is, his independent election and fixed term.

Duda received significantly more votes in winning the presidency (in a two-round election) than the PiS earned in winning its parliamentary majority. The governing party’s majority is manufactured by the electoral system (details in my earlier entry), whereas Duda’s was earned in the two-candidate runoff. In addition to the electoral system, the PiS surely owes its being in the position to gain that assembly majority from Duda–or, specifically to its own election in the “honeymoon” of Duda (again, see the earlier entry for details).

I do not know if the issue of judicial reform was raised in his own election campaign, but the wider point is that it hardly matters. He has the institutional capacity to act independently, and he did. He has the constitutional power of veto, and he exercised it.

For better or worse, this is how presidentialism (including semi-) is supposed to work. As a head of state (who must deal with other governments unhappy with Polish plans) and with a wider popular constituency (with many Poles in the streets over this issue), and protected by the fixed term, the president can act against the will of the government and its own parliamentary majority.

The veto takes a three-fifths vote of parliament to override, and the PiS is far short of this threshold. Unless it can bring other parties around to this bill, the president’s veto will stand. What this might mean for Duda and his relationship with his party is not for me to predict. But, based on the theory of presidentialized parties, what has happened today is far from surprising; it is predictable.

Turkey referendum: Latin Americanization on the road to autocracy

Turkey will go to the polls on April 16th, to vote on a set of constitutional amendments which would change the country’s system of government to presidentialism. Though it seems that in Turkey, the current system is generally referred to as ‘parliamentary’, Turkey has actually been semi-presidential (specifically, premier-presidential) since the country’s first direct presidential election was held in 2014.

The amendments passed the three-fifths legislative majority necessary to put them to referendum with support from the Nationalist Movement Party (MHP). Introducing presidentialism has long been president Erdogan’s express wish. The idea has apparently been around in Turkish politics for a while before it was adopted by the Erdogan and his party, AKP. Full presidentialism seems to have been ‘plan A’, so introducing semi-presidentialism (passed in 2007, entering operation in 2014) was perhaps only ever meant as a way-station toward this goal.

The main details of the amendments are as follows:

  1. Establishing presidentialism:

As stated above the president is already elected directly, specifically using a two-round system. The president is to become both head of state and head of government, with the power to appoint and fire ministers and the vice president. There is no requirement for the Grand National Assembly to confirm appointments. Executive office is incompatible with assembly membership. Interpolation of ministers is to be removed from the constitution, leaving MPs with written questions.

  1. Legislative powers:

The president is to have veto power over legislation, subject to absolute majority override in the assembly. He is to have the power to issue decrees in “matters concerning the executive power” and regulations “to provide for the enforcement of the laws, provided they are not contrary to them”. These cannot affect fundamental rights, except under a state of emergency; an emergency can be declared by the president without confirmation by the assembly, but the latter must be notified immediately and can shorten or end it at any time. These decree powers are essentially the same as those currently held by the cabinet. The president would also dominate the budgetary process: the complete budget is to be proposed by the president and put to a straight up-or-down vote in the assembly without possibility of amendment, with failure to adopt a budget within a timeframe leading to continuation of previous arrangements.

  1. Term lengths and dissolution power:

The assembly’s term in extended to five years (from the current four) and legislative and presidential elections are to be held concurrently. If the presidency becomes vacant, fresh presidential elections must be held. If parliamentary elections are due within less than a year, then they too are held on the same day as early presidential elections; if the parliament has over a year left before its term expires, the newly elected president serves until the end of the parliamentary term, after which presidential and parliamentary election cycles are held concurrently again.

The president is to be limited to being elected twice, but there are some exceptions, the first of which is that a mid-term vacancy-filling election doesn’t count towards the total. The current presidential power to dissolve the assembly is retained, in addition to a new clause which enables the assembly to dissolve itself, by three-fifths majority vote – in either case, fresh elections are held for both president and assembly, who serve new five-year terms. Early concurrent elections triggered by the assembly can always be contested by the president.

  1. Impeachment

The president or any member of the executive is indicted by two-thirds majority in the assembly (upon which many powers, including dissolution, are suspended), which takes the decision on removal to the Supreme Court. A president which has thus been removed is ineligible for re-election.

  1. Judiciary

The acts of the president, previously protected, are now to be subject to judicial review. The structure of the judiciary will not change much – with the role of the president in appointments remaining quite strong. Of the Council of Judges and Prosecutors, the president is to appoint 6 and the assembly is to appoint 7 (4 of whom must be judges from the highest courts) – for renewable four-year terms. The Council appoints most (two-thirds to three-quarters) of the judges of each of the highest courts, with the rest being appointed by the president directly.

According to the BBC, Erdogan claims that the new system will ‘resemble those in France and the US’. There is clearly little truth to this. First of all, France is semi-presidential, specifically the premier-presidential variant. This means that the prime minister, while appointed by the president, can formally only be removed by the assembly – in other words, what Turkey has now. These amendments would outright abolish the prime ministership and parliamentary responsibility, granting the president (already in a position to play a dominant role in the country’s government) absolute control over the executive branch.

Does that mean that the new system will essentially be the same as the US? Not really. Presidential or not, the proposed system includes numerous features bearing little resemblance the American model of checks and balances. The amendments would invest the Turkish president with extensive constitutional decree powers, allow him to all but dictate the budget, but on the other hand leave him with a substantially weaker veto than the US. The absence of assembly confirmation vote for ministers, not to mention presidential dissolution power, are also alien to the US constitution. Overall, the proposed institutional framework is to bear far greater resemblance to past and present constitutions of Latin America, where assembly confirmation is non-existent, emergency and decree powers are common, while some of the other institutions in question have featured occasionally, e.g. presidential dissolution power (Ecuador, formerly Chile and Argentina) and weaker veto (Brazil, formerly Venezuela).

In any case, the proposed amendments represent an immense consolidation of power in the hands of president Erdogan. It would probably allow him to serve beyond the supposed limit of two five-year terms. Judicial appointments involve a somewhat greater degree of presidential influence over a judiciary that has already lost a great deal of independence in recent years. Judicial review, needless to say, will not amount to much. Furthermore, the requirement for judicial ratification may leave impeachment ultimately toothless even in the unlikely event that the requisite majority were achieved in the assembly. Meanwhile, the weak veto and the assembly’s own (weaker) power to call early elections is unlikely to provide much balance in practice. Though dissolution would entail new elections for both president and assembly, a president armed with the power to dissolve the assembly still seems more likely to have the upper hand in the exceptional situation his party ever lacks a majority there – exceptional because of the country’s majoritarian system, and because the president’s very power of calling early elections enables him to do so opportunistically, as Erdogan did in 2015[1].

The Venice Commission’s report characterises the proposed changes as “a dangerous step backwards” for democracy in Turkey. It certainly feels hard to disagree.


[1] One might add (as the Venice Commission does) the fact that elections will be concurrent, which is certainly true, though, as we have recently seen, it’s certainly possible (though still uncommon) for countries to elect a president in the second round that was not of the legislative majority elected concurrently with the first round (e.g. Argentina, Peru), while more generally, two-round systems cause vote fragmentation in the first round. If elections in Turkey remain competitive, it may be that the two round system will, in the long run, cause fragmentation which will spread to the assembly. Perhaps more likely is that once in a while, the concurrent elections could result in divided government as in the first scenario I mention here. A situation like that might provoke Linzian scenarios, but is probably most likely to simply result in early elections at some point, whose outcome would most likely be a reversion to the regular unified control.

Zambia Constitutional amendments

Last week, Zambia enacted a package of amendments to the constitution that has been years in the making.

Among the amendments are a number of significant changes to the presidency. In the last decade, two early presidential elections (2008 and 2015) were instigated by the incumbent’s death. In the wake of the cost and difficulty of organising these elections, there were calls for the institution of a vice-presidency elected as the president’s running mate and replacing the vice president on a permanent basis. This change was included in the amendments, replacing the previous position of vice president which was appointed by the President and only substituted him on an interim basis.

Another change was to the president’s dissolution power. Under the previous provisions, the President was able to call an early general election at any time, which would include both presidential and legislative elections. The new provisions stipulates that such a dissolution can only be effected “if the Executive cannot effectively govern the Republic due to the failure of the National Assembly to objectively and reasonably carry out its legislative function”, and must be reviewed by the Constitutional Court, which determines whether or not that is the case. This seems to me as rather ill-advised; whether or not parliament fulfils its role ‘objectively’ or ‘reasonably’, and whether or not the President is able to ‘govern effectively’, are fundamentally political questions, and getting the courts involved in that could seriously undermine their neutrality and independence.

Additionally, in response to widespread calls for such a change, the electoral system for president has been changed from plurality to two-round majority. The original draft presented to parliament several years ago also envisioned the adoption of Mixed-Member Proportional for legislative elections, but this was removed from the bill by the National Assembly.

Lastly, in what seems to be a growing trend in new or heavily-amended constitutions, the amendments introduce federalism (seeing as they include lists dividing up competences among national, provincial and local government which are entrenched along with the rest of the constitution), but call it a system of ‘devolved’ governance.

Ukraine deal

The deal signed earlier today in Ukraine calls for a return to the constitution instituted after the Orange Revolution protests (but later reversed). Those provisions significantly weakened the presidency–mainly by giving the president essentially no discretion in the choice of a prime minister, who was defined as the candidate of the legislative majority. On the other hand, the president under that constitution still retained control over key ministries, such as interior and defense, as well as a veto requiring two thirds to override. So the protesters are right to be skeptical, even if this is a big concession by President Yanukovych.

The agreement also mentions reforms to electoral laws, but does not clearly address the electoral system itself, which is obviously critical inasmuch as it determines how votes are translated into seats in empowering the very legislative majority that would appoint the PM. And, as I noted before, the current system is highly disproportional and personalistic, and these features allowed the pro-Yanukovych bloc to win a majority, counting pro-Yanukovych “independents” (bearing no party label), despite the president’s Party of Regions having barely a quarter of the votes. Of course, with the renewed mobilization of the opposition, it is less clear who would benefit from the current system’s disproportionality, but the opposition would seem to have a clear interest in a return to the party-list system used in 2006 and 2007. And that system’s proportionality would presumably offer the pro-Yanukovych forces a hedge against possible voter retributions whenever the new legislative election is held.

The agreement also only specifically refers to early presidential elections.

Obviously a situation still in flux.

More on American columnists discovering comparative politics

At Think Progress, Ian Millhiser offers another in the recent series of examples of American columnists noticing comparative politics. This is good!

Millhiser suggests we look to Chile’s current presidential democracy for models of how to prevent government shutdowns. As he notes, correctly, Chile’s president has exclusive power under the country’s constitution to propose legislation in areas relating to finance and budget, along with “urgency” provisions and restrictions on congressional authority to change executive proposals.

In other words, a presidential (separation-of-powers) model does not necessarily have to leave the executive dependent on legislative initiative to pass a budget or other financial matters.

While the recognition of other models is good, I am afraid I have to stop short of advocating the Chilean solution. If I decried the possible “Latin Americanization” of US presidentialism during the previous administration, I hardly can advocate it now.

Italian presidential selection and PD split

The Italian electoral college (made up of members of parliament and regional representatives) selected Giorgio Napolitano for a second term in the “mostly ceremonial” post of president.

Via presseurop.eu (and originally from Corriera della Sera):

Napolitano was elected on April 20 with the votes of the Democratic Party (PD), Silvio Berlusconi’s People of Freedom Party and Mario Monti’s Civic Choice. Despite having earlier ruled out the possibility of a second term, Napolitano changed his mind after Franco Marini and Romano Prodi failed to get elected due to a dramatic split in the PD that prompted its head, Pier Luigi Bersani, and the party’s entire leadership to resign.

One of the faculties that makes the Italian presidency potentially more than ceremonial is the authority to dissolve parliament when a government can’t be formed. (This power does not exist in the final phase of a president’s term, but becomes active again once Napolitano starts his second term today.)

Does this mean a grand coalition (i.e. a Berlusconi-backed government)? Or will there be a new elections (leading to who knows what?)?

Latvia’s president wants more power

The Hurriyet Daily News reports that Latvian President Valdis Zatlers has called for a constitutional amendment permitting him to dissolve Parliament without the public’s consent at referendum. According to the article, he also has called for direct presidential elections.

Further, he has asked for the power to unilaterally dismiss the chief budget and central bank officers. Zalter’s stated reason for this is to ‘depoliticize’ these appointments.

There is no mention of any proposed change to presidential survivability. Will the dissolution of Parliament also trigger a presidential election, for example?

As is no surprise to F&V readers, the net effect of the above would be the diminution of arguably wise constraints on executive power.

IMG_0516.JPG
Image of Latvian Saiemaa added by MSS

Afghanistan: Amnesty bill and party-formation updates

About two months ago, I posed the question, will Karzai veto the Jihadis’ amnesty bill? It was a reference to a bill to provide a sweeping amnesty to former fighters in Afghanistan’s decades of fighting, passed by a congress largely dominated by former fighters themselves. President Hamid Karzai opposed the amnesty, as did international aid organizations. With his office having the constitutional authority to veto legislation, it seemed unlikely that the legislators’ act would be the final word. (A veto takes two thirds to override, although my reading of the constitution is that the override vote takes place only in the lower house, notwithstanding the bicameral nature of the Afghanistani congress.)

Indeed, congress did not have the final word. But that is not to say that Karzai vetoed the bill. Instead, he recommended amendments to some provisions, and congress passed a new bill that incorporated his suggestions–or some of then; details are sketchy in the several sources I consulted. Deep within an LA Times story, it is noted:

[Karzai’s] office managed to add the provision about an individual’s right to file charges, amending what was virtually a blanket amnesty.

Separation of powers at work.

In previous discussions, I have noted how unrepresentative the Afghan congress is, given that it was elected in a purely candidate-based system (single nontransferable vote), with no party labels, and with a very high rate of wasted votes. A recent item in The Economist picks up on the theme of the party-less legislative process, and notes that parties are now forming from within the congress.

IN THE 18 months since it was elected, Afghanistan’s first democratic legislature has been in a peculiar limbo: it is a parliament without parties. Candidates were not allowed to declare party affiliations on the ballot paper. The result has been a chaotic parliament of individuals, often elected on the promise of patronage and by virtue of ethnic affiliation. The parliament has criticised the increasingly isolated president, Hamid Karzai. But its positive achievements have been few.

Now change is stirring. Several alliances with sketchy political platforms are being mooted. The first of these, the National Unity Front, was unveiled in March by a group of parliamentarians and members of the government. It proposes various constitutional reforms, including electing provincial governors directly and creating a new post of prime minister in order to curb the power of the president. The Front denies wanting to be an opposition party, promising to work alongside the government in pursuit of “national unity”. [read full article]

Both of these developments represent advances for the constitutional and legislative processes in that war-torn country.

The Ukrainian crisis: Regional dimensions

Inevitably, the crisis over President Yushchenko’s decree dissolving parliament is generating political conflict at the regional level. Itar-Tass reports:

The Odessa Regional Council, the first in Ukraine since the beginning of the political crisis, will discuss at its next meeting a vote of no confidence to Governor Ivan Plachkov, who started in the Odessa Region preparations for new parliamentary elections.

All of the oblast governors signed a statement supporting the President’s decree–not surprisingly, as under Ukraine’s centralized political structure, the governors are appointed by the President.* The councils, on the other hand, are elected. Odessa is among the regions where Prime Minister Yanukovych has his base, having won almost two thirds of the vote there in the final round of the election in which Yushchekno was elected president.

___
* In both area and population, Ukraine is one of the largest countries in the world to be both a unitary state and a democracy. (And yes, Ukraine is a democracy, albeit a troubled one at this juncture.)

Continuity

The deadlock in Ukraine continues. President Viktor Yushchenko claims that until the Constitutional Court rules, his decree calling early parliamentary elections (set for 27 May) should remain in effect. That is a remarkable claim, as it means that his decree would be presumed valid until declared otherwise, even though it takes quite an expansive reading of the constitution to find a dissolution power among the president’s unilateral capacities.

Meanwhile, the international press continues to say things like Prime Minister Viktor “Yanukovich staged a remarkable [post-Orange Revolution] comeback in Ukraine’s last parliamentary election.”

Pardon me for continuing to fail to see anything remarkable in Yanukovych’s party going from (an almost certainly inflated) 41.4% in the first round of the presidential election of 2004 (and 45.9% in the runoff) to 32.1% of the total vote, or 41.4% of the above-threshold vote, in the 2006 parliamentary election.