A correspondent asked me recently if I thought the refusal of Israeli opposition leaders to hold talks on the government’s proposed judicial overhaul, unless the government first pulled the bills from currently scheduled committee consideration, was “legitimate.” She did not think so, and her reason was sensible enough and certainly not something I can disagree with: Committees are where the details of legislation are worked out, after all, and the final version could be quite different from the initial draft.
My response was that I did not think there was anything illegitimate about the opposition’s stance. Basically, that anything that is not illegal is fair game in a democracy, because of what the title of this post says. It is all about bargaining.
What I mean is that the opposition has a weak hand in the legislature and its committees–the government has a majority of the Knesset and the key committees. Israel has no entrenched constitution (aside from a few specific provisions of some Basic Laws), and a majority of members present and voting can change just about anything it wants. That is, the ruling coalition of Likud, Haredi (ultra-orthodox) parties, and nationalists can implement institutional reform without compromising with non-coalition parties or societal actors–provided it remains united. I see the range of opposition tactics–including the protests and various letters from a wide range of actors in society as well as the insistence on a pause in the process before talks–as an effort to exacerbate and expose fissures within the coalition. It may even be working and a possible compromise has been floated via a process outside the Knesset committees. But whether it works or not, and whether it is really their best strategy or not, I think it should be seen as precisely a means of driving wedges in the coalition. At the end of the day, only members of the coalition can decide whether they either want to meet some opposition demands to calm the situation, or simply pass what they are currently proposing. The lack of a super-majority requirement for constitutional matters means everyone playing this game knows the government can do what it wants–unless sufficient members within it refuse to go along.
Another interlocutor said that the proposals should be seen as just an opening gambit, meant to stake out a position that will be compromised later. While such an understanding is consistent with a bargaining game, I have my doubts regarding the inferred intention. If a government is committed to the rule of law, it does not lead with proposals that would subordinate the judiciary to the government and its parliamentary majority. Whatever the governing parties’ “true” intentions, I can certainly understand why the opposition has seen these proposals as a mortal threat to the rule of law and refused to negotiate when the government could, at almost any moment, just put its preferred version into law. (Even while I think claims that this would be the end of democracy are over the top.)
A bigger point is that the entire episode has made me question just a little my basic understanding of what form of democracy is best. I would always answer such a question with “unicameral parliamentary system with proportional representation” (PR). This is, of course, what Israel has.1 As a student of elections, legislatures, and executives, I tend to give short shrift to judiciaries. I tend even to have my doubts about judicial review, because it may serve for a minority veto, and my premise in favor of unicameral PR-parliamentarism is that majority coalitions of multiple parties are the surest preserver of democratic liberty. The idea being that if one party in a coalition demands too much, it can be replaced by a different party. This of course “works” theoretically, and presumably empirically, to the extent that shifting majority coalitions are possible (whether changes in cabinet or simply changes in the complexion of coalitions passing different legislation). If you get a situation where parties comprising a narrow majority can govern and there are no opposition parties available to replace high-demanders in the current coalition, the result might be unbridled majoritarianism if there is no court (or other body) to check it. As I have written in recent plantings about current Israeli politics, the country seems to be in precisely such a situation now–indeed, with a narrow majority coalition whose component parties did not even win a majority of the vote. In that context, preserving a judicial check–in some way–seems essential. So, yes, PR-parliamentary remains my clear choice for “best” form of democracy, but don’t forget about the judiciary.2
Finally, what are some examples of constitutional reforms on any fundamental institutional provisions that were put forth in such extreme initial form? I ask this with a limitation of the sample of possible cases to countries we would recognize as long-standing and well established democracies. I can’t think of many good parallels–maybe the recent measures in Hungary and Poland (depending on what “long-standing” means). I would think that governments with ambitious agendas of changing fundamental institutional balances would tend to seek consensus from the start, and not as part of a bargaining game after introduction of radical proposals. But I may be overlooking good historical examples, or it may simply be that elsewhere such proposals typically need larger-than-bare majorities to be enacted, which then constrains what gets proposed at the outset. Electoral system reforms in majoritarian systems come to mind as offering possible examples. It is something I have written on, and generally processes contemplating reform to PR are set up with broader consultation and a referendum even though there is often no constitutional constraint requiring pro-reform governments to do so. And that’s with reforms that would restrain the majoritarianism of future governments, not empower them, as the Israeli government’s judicial proposals would do. So, for various reasons, I think that what we are seeing is quite exceptional, and in this light I can understand why the opposition has elected to take the bargaining outside of regular channels like legislative committees. It’s bargaining all the way down, and bargaining need not be confined to the normal channels (provided it remains legal and non-violent) when the stakes are so high.
- However, I would argue that the unicameral, PR-parliamentary combo works better if the threshold is low (yes, 3.25% is too high, at least for Israel), there is districting (perhaps a two-tier PR system, introducing local representation while preserving nationwide proportionality), and/or there is some degree of preference voting within the party lists. I would never argue that nationwide-district closed-list PR is the “best” system, even though I have generally been more favorable to the Israeli electoral-system design than many commentators have been.
- What about the unicameral part? I still prefer that in principle, but I could see a case for some sort of second chamber being a good idea for Israel. The important proviso is: not anything like the US Senate! Not both malapportioned and possessing a full veto. But “to cool the coffee” as I recall from the title of a paper on bicameralism I read long ago, maybe. Israeli politics could certainly stand to have its coffee cooled a bit these days.