Attorneys General–institutions matter

Now that indictments have been announced against the (outgoing–dare I say?) Prime Minister of Israel, it is worth reviewing the institutional basis of the office of Attorney General in Israel.

I am seeing some casual takes on Twitter about why the US doesn’t have an Attorney General who takes a tougher line against law-breaking at the top of government. But the offices could hardly be more different. The US Attorney General is a cabinet appointee. The President picks who holds that position, subject only to Senate majority confirmation. Of course, Trump has had a highly compliant Senate majority throughout his presidency.

Trump could not have had occupants of the office that have been as awful for the rule of law as they have been, if the office were structured like Israel’s. So it is worth sketching how the process of appointing the Israeli Attorney General works. My source for this is Aviad Bakshi, Legal Advisers and the Government: Analysis and Recommendations, Kohelet Policy Forum, Policy Paper No. 10, February 2016.

a. There shall be formed a permanent selection committee that shall screen suitable candidates, one of which shall be appointed to the position by the government. The term of each committee shall be four years. 

b. The chairman shall be a retired justice of the Supreme Court who shall be appointed by the President (Chief Justice) of the Supreme Court upon the approval of the Minister of Justice, and the other members shall be: a retired Minister of Justice or retired Attorney General appointed by the government; a Knesset Member elected by the Constitution, Law and Justice Committee of the Knesset; a scholar elected by a forum comprising deans of law schools; an attorney elected by the Israel Bar Association. 

c. The AGI term duration shall be six years, with no extension, irrespective of the term of the government. 

d. The government may remove the AGI from his position due to specific reasons.… These reasons include, in addition to personal circumstances of the AGI, disagreements between the AGI and the government that prevent efficient cooperation. In such an event the selection committee shall convene to discuss the subject and shall submit its opinion to the government, in writing. However, the opinion of the committee is not binding, and the government may decide to remove the AGI contrary to the recommendation of the committee. The AGI shall have the right to a hearing before the government and before the committee. 

All of this makes for a reasonably independent office. Even if appointment and dismissal are still in the hands of the government, the screening and term provisions make it an arms-length relationship. The occupant of the post is obviously not a cabinet minister, as in the US, and is not a direct appointee of the head of government or the cabinet.

Worlds apart, institutionally.

And this is even before we get into the parliamentary vs. presidential distinction. A president is–for better or worse–meant to be hard to indict, let alone remove. That’s why the main tool against a potentially criminal executive in the US and many other presidential systems is lodged in the congress, through impeachment, and not in a state attorney. A prime minister in a parliamentary system, on the other hand, by definition has no presumption of a fixed term.

The normal way to get rid of a PM is, of course, a vote of no-confidence or the PM’s own party or coalition partners withdrawing support. But that’s the point–they are constitutionally not protected when the political winds, let alone the legals ones, turn against them.

In the broader institutional context of a parliamentary system, it is presumably much easier to take the step of also designing an independent Attorney General’s office that has the ability to indict a sitting head of government.

On the other hand, there is still no obvious way to remove Netanyahu from office any time soon, unless his own party rebels against him. Even though Trump’s own party will probably block the super-majority in the Senate needed to remove him from office*, the resolution of the case against Trump might happen considerably sooner than any resolution of Netanyahu’s case. Barring a rebellion by his current allies, Netanyahu may remain PM fore another 4-5 months, through a now-likely third election (since last April) and the post-election coalition bargaining process.

* Assuming the House majority impeaches him, which now looks all but inevitable.

Israel is about to have a very unusual ‘b’ election

Israel is about to hold its second election of 2019, and it will be unusual, relative to other cases of a second election within a year elsewhere. While the number of lists winning seats is likely to go down, other indicators of fragmentation are likely to go up.

Using the National Level Party Systems Dataset (Struthers, Li, and Shugart, 2018), I performed calculations to find out how the standard indicators of party-system fragmentation change from a first election that fails to produce a “stable” government or any government at all, leading to a second election. I looked at all cases in the dataset in which two elections were held in the same Gregorian calendar year, plus all cases where an election is in the second half of a year and followed by another in the first half of the next year. The first table below gives the full list, including the first and second election in each sequence. In one case in the dataset (Greece, 1989-1990) the second election was followed by yet another within a year, indicated by a “3” in the final column. Note that a country’s data sequence begins in the early post-WWII era or when a country democratized and ends in 2016, so any cases outside that timeframe are not included.

country year date mo within_yr_seq
Denmark 1953 4/21/53 4 1
Denmark 1953 9/22/53 9 2
Denmark 1987 9/8/87 9 1
Denmark 1988 5/10/88 5 2
Greece 1989 6/18/89 6 1
Greece 1989 11/5/89 11 2
Greece 1990 4/8/90 4 3
Greece 2012 5/6/12 5 1
Greece 2012 6/17/12 6 2
Greece 2015 1/25/15 1 1
Greece 2015 9/20/15 9 2
Iceland 1959 6/28/59 6 1
Iceland 1959 10/25/59 10 2
Ireland 1982 2/18/82 2 1
Ireland 1982 11/24/82 11 2
Japan 1952 10/1/52 10 1
Japan 1953 4/19/53 4 2
Japan 1979 10/7/79 10 1
Japan 1980 6/22/80 6 2
Moldova 2009 4/5/09 4 1
Moldova 2009 7/29/09 7 2
Spain 2015 12/20/15 12 1
Spain 2016 6/26/16 6 2
Sri Lanka 1960 3/19/60 3 1
Sri Lanka 1960 7/20/60 7 2
St. Lucia 1987 4/6/87 4 1
St. Lucia 1987 4/30/87 4 2
Thailand 1992 3/22/92 3 1
Thailand 1992 9/13/92 9 2
Turkey 2015 6/7/15 6 1
Turkey 2015 11/1/15 11 2
UK 1974 2/28/74 2 1
UK 1974 10/10/74 10 2

The list contains 17 cases of an election within twelve months of the preceding one. Not a large sample; fortunately, this sort of thing does not happen very often. (There are 1,025 elections in the sample.)

If elites and/or voters “learn” from the experience of bargaining failure or lack of stability from the first election in such a sequence, we would expect the second to be less fragmented. We can test this by looking at mean differences between the second election and the first. The indicators I have are the number of parties (or lists, more precisely, counting an independent as a “list” of one) that win at least one seat (NS0), the effective number of seat-winning lists (NS), the effective number of vote-earning lists (NV), the seat share of the largest party (s1), and the vote share of the largest party (v1). The first three should go down if there’s an adaptation occurring, while the second two should go up (i.e., the largest party gets bigger).

Here is what we see from the results, reporting the mean differences:

NS0: –0.215

NS: –0.098

NV: –0.469

s1: +0.010

v1: +0.0035

In terms of raw direction, all are as expected. On the other hand, the number of lists winning seats hardly budges (recall that the first number is the actual number, not “effective”), and the effective number on seats changes much less than the one on votes. The implication is that fewer votes are wasted in the second election, as we would expect. On the other hand, the seat share of the largest party–the single most important quantity because it determines whether there is a single-party majority and if not, how far from majority it is–rises by a very small amount, on average. That is partly due to most of these systems being proportional, so large shifts should be unusual. The complete list of elections and their indicators is provided in an appendix below.

As far as statistical significance is concerned, only in NV and v1 is the difference significant (NV at p<0.03; v1 at p<0.10), when comparing these “second” elections to all others. (This is not meant to be a sophisticated test; I am not comparing to a country baseline as I really should.)

We might expect that the first election in such a sequence is anomalously fragmented, hence the need for a second election to calm things down once again. That is also supported, for NV and v1 again, but also, crucially, for s1.

Now, how might the Israeli second election of 2019 compare? We can use the polling average from Knesset Jeremy (using the poll of polls from three weeks before the actual election), and compare to the actual results of 2019a (the first election in the sequence) and the previous election (2015). Also included in the Seat Product Model expectation.

measure 2019b (poll avg) 2019a actual diff 2015 diff SPM expected
NS0 9 11 –2 10 1 11
NS 6.04 5.24 0.801 6.94 –1.70 4.93
NV ? 6.33 ? 7.71 –1.38 5.24
s1 0.258 0.292 -0.034 0.25 0.042 0.3
v1 ? 0.2646 ? 0.234 0.031 0.289

For the number of lists that look likely to clear the threshold, we have the direction expected: currently there are 9 likely to win seats, compared to 11 in April. In turn, the April figure was one seat-winning list higher than in 2015. However, in terms of both NS and s1, the case is anomalous. All indications are that the largest party will be smaller than it was in April, which also will drive up the effective number. Moreover, these measures in April were less fragmented than they had been in 2015; that is, the first election of the 2019 sequence was not unusually fragmented. Quite the contrary; I called it a “normal” election at the time for a reason.

So the Israeli sequence of two elections in 2019 is unusual indeed.


Appendix

Below are two tables. One has all the “second” elections, and changes in the various measures. The second has all “first” elections. In each case, the comparison is just to the immediately preceding election (not to all other elections), so we can see how much short-term fluctuations were affecting the process in each sequence.

Elections ocurring within one year of previous, compared to previous results
country year mo diff_Ns0 diff_Ns diff_Nv diff_s1 diff_v1
Denmark 1953 9 1 -0.2199998 -0.1000001 0.014 0.009
Denmark 1988 5 -1 0.0100002 0 0.005 0.005
Greece 1989 11 1 -0.0800002 -0.1700001 0 0
Greece 1990 4 5 0.05 0.0700002 0.005 0.017
Greece 2012 6 0 -1.07 -3.75 0.07 0.108
Greece 2015 9 1 0.1490002 -1.19 -0.014 -0.008
Iceland 1959 10 0 0.24 . 0 .
Ireland 1982 11 -1 -0.01 0.03 0 0
Japan 1953 4 . 0.8099999 0.8999999 -0.088 -0.091
Japan 1980 6 -8 -0.3999999 -0.24 0.074 0.033
Moldova 2009 7 1 0.8699999 0.27 0 -0.048
Spain 2016 6 -1 -0.3700004 -0.7999997 0.04 0.043
Sri Lanka 1960 7 . -1.22 -2.52 0.166 0.032
St. Lucia 1987 4 0 0 -0.1099999 0 0.007
Thailand 1992 9 0 -0.0999999 0.0999999 0 0.017
Turkey 2015 11 . -0.322 0.03 -0.126 -0.089
UK 1974 10 -1 -0.01 -0.02 0.028 0.021
Election that is the first in a series of two within a year, compared to preceding election
country year mo diff_Ns0 diff_Ns diff_Nv diff_s1 diff_v1
Denmark 1953 4 0 -0.1300001 -0.0900002 0.013 0.008
Denmark 1987 9 0 0.27 0.5799999 -0.009 -0.023
Greece 1989 6 1 0.26 0.1400001 -0.044 -0.006
Greece 2012 5 2 2.24 5.79 -0.173 -0.25
Greece 2015 1 0 -0.6700001 -0.77 0.067 0.066
Iceland 1959 6 0 -0.28 . 0.035 .
Ireland 1982 2 -2 -0.05 -0.1699998 -0.039 0.009
Japan 1952 10 . . . . .
Japan 1979 10 -1 0.1199999 -0.2199998 -0.002 0.027
Moldova 2009 4 1 0.1400001 0.1600001 -0.079 0.035
Spain 2015 12 -3 1.93 3.23 -0.18 -0.159
Sri Lanka 1960 3 . 1.456 2.26 -0.206 -0.043
St. Lucia 1987 4 -1 0.55 -0.0800002 -0.295 -0.049
Thailand 1992 3 . . . . .
Turkey 2015 6 . 0.4320002 0 0.002 0.005
UK 1974 2 2 0.1900001 0.6900001 -0.05 -0.077

 

Marginal candidates on closed lists: Israel 2015 edition

Do party leaders use personal characteristics of candidates they recruit to their closed lists as a way to attract voters to the list? If the objective is to mobilize voters who might not otherwise have strong incentives to vote for the list, the strategy we might observe is the nomination of candidates associated with particular groups (or partnering parties) to marginal ranks–a rank at which the party is likely to be on the cusp of winning or losing. I pointed out such a strategy in the Israeli election of 2006, when Shas nominated representatives of the Ethiopian and Georgian immigrant communities to the 12th and 13th ranks. The party had won 11 seats in the 2003 election and would win 12 seats on 2006; there were indications that the party indeed received votes from the two communities.

How common are such marginal-ranks personal-vote strategies by parties? I wish I knew! I do have another data point from Israel, however: this year’s Zionist Union list.

The Zionist Union (or Zionist Camp) list was formed by the merger, for purposes of this election, of Labor and Tzipi Livni’s HaTnua party. Although Labor holds a member primary, the joint-list agreement gave Livni the right to nominate candidates to various positions on the list. One of these was position #24.

On January 25, it was reported that the 24th spot would go to Yael Cohen Paran, “one of Israel’s leading environmentalists for the past two decades”. She is one of the leaders of the Green Movement party.

By nominating Cohen Paran, Livni has maintained her agreement with the Green Movement, whose leader Alon Tal was given the 13th rank on Livni’s HaTnau list for the 2013 election. The list won only six seats, so Tal was not close to winning, but Livni’s manifesto commitment to focus on the environment was upheld in various ways, most prominently by claiming the Environment Ministry for one of her MKs, Amir Peretz.

Of course, I can’t prove that Cohen Paran received this specific list rank for this campaign because of her ability to bring additional votes. It is possible, however, given the past record of Livin-Green cooperation. It is especially noteworthy that in the week immediately prior to the announcement, the Labor-HaTnua list was averaging just about 24 seats in the polls, meaning Livni controlled what could be the most marginal rank on the list. If there is a bloc of potential votes, and a candidate who might appeal to such a bloc, and the nominator was strategic… let’s just say Livni behaved exactly as a hypothesis about personal votes for marginal ranks on closed lists might predict.

Labor and Livni’s HaTnua presenting a joint list, promising to rotate PM

Israeli politics never ceases to amaze! A union of Labour and Livni’s HaTnua has been widely anticipated, and several polls now have shown this combined list would win more seats than Likud. But a rotation of the premiership if the combined list is in a position to form a government? I never imagined such a deal.

As the article in Times of Israel notes, “There is a precedent for prime ministerial rotation in Israel. Labor’s Shimon Peres and Likud’s Yitzhak Shamir led the country in that format between 1984 and 1988.” But note the difference: that was two parties–still the two big ones back then–agreeing to take turns. This deal is that one party (or, here, alliance) will swap the leader it has supplied to head the government at the midterm, and it means a far weaker partner supplying the PM for half the term. Quite unusual.

Regarding list formation:

Herzog is understood to have agreed to place Livni in the second place on the joint party list, as well as giving Hatnua the 6th, 21st and 25th slots on the joint list. The 6th slot was earmarked for former environment minister [and once Labor Party leader] Amir Peretz.

Those same polls still suggest the right would be more likely to form the government. (So far, Likud is probably losing votes to Bennet’s nationalist-Orthodox party, not to the center or left.) Is this a game changer that would attract enough votes off some of the right-wing parties? I would not count on it, but that’s obviously the intent.

The ways a cabinet can be terminated

There is a literature in political science on government (cabinet) termination in parliamentary democracies. This is not a review of that literature. Rather, it is an accounting of three recent cases that illustrate different ways that a government in a parliamentary democracy can end.

We can have a party based on an electoral majority that seeks a fresh mandate. That is, a party–or bloc of parties running together in the election– that has won a majority of seats, but, for strategic reasons, decides to hold an early election. Exhibit: Japan. Prime Minister Shinzo Abe (Liberal Democratic Party) announced a snap election on 18 November, despite about two years remaining on the term and a comfortable majority won in the 2012 election. The election will be 14 December.

We can have a coalition government, formed by bargaining among multiple parties after an election, which holds a majority of seats. The parties might have a falling out over one or more policy issues, and the parties break up the government rather than resolve their differences within it. Exhibit: Israel. On 2 December, Prme Minister Benjamin Netanyahu fired two ministers, each of whom heads a party that was in his coalition: Finance Minister Yair Lapid (of the Yesh Atid party) and Justice Minister Tzipi Livni (of HaTnua). The firing, which meant the breakup of the coalition, followed weeks of rancor over the budget and a bill backed particularly by another coalition partner, the Jewish Home party, that critics (including the ceremonial president) said would elevate the state’s Jewish character over its democratic character. New elections will be 17 March.

We can have a minority cabinet, in which the party or parties holding ministerial positions do not hold a majority of parliamentary seats, with no available backing from among the non-governmental parties in parliament, and which fails to get the support needed to pass its budget. Exhibit: Sweden. On 3 December, the minority center-left government of Prime Minister Stefan Lofven lost a budget vote, 153-182, and announced there would be a snap election. The wild card here was the Sweden Democrats, a far-right or “populist” party that neither Lofven nor the center-right opposition wanted to be seen to deal with following elections that were held less than three months ago. When the center-right would not back the budget, the government effectively lost its right to continue governing. A new election is expected to be set for 22 March.

One could say that these were listed not only in chronological order, but in reverse order of “necessity”. There was no reason why Japan needed an early election–its government has a solid majority. The Israeli election call is also not exactly necessary–the parties whose leaders Netanyahu fired were not in anything like open rebellion even if they were in policy disagreement (which is, after all, natural in coalitions). It was, however, a coalition that the PM himself clearly never wanted, and was forced upon him by the election results in early 2013 and the bargaining stances of other parties (specifically, Yesh Atid and Jewish Home). Polls show the potential of a much stronger right-wing bloc in a new election. So, it is an opportunistic call, but arguably less unnecessary than Japan’s. The Swedish situation, on the other hand, is one of real deadlock.

Of all these countries, the one that has the lowest tendency towards early elections is Sweden, even though minority governments are quite common there. Usually, however, they have had a fairly reliable “outside” party to back them on budgets or other confidence matters. Israel has frequent early elections–although this one will be earlier than any in years–and usually has oversized governments (meaning containing more parties than actually needed to have a parliamentary majority–such as the just-collapsed one). Japan usually has electoral-majority governments, but has had many early elections, including the famous one of 2005, also called by a government that had a secure election-based majority, but wanted (and got) a bigger one to push through reforms blocked by intra-party resistance.

All these great examples of early elections in parliamentary systems, and it wasn’t even my teaching quarter for any of my comparative democracy courses.

“‘We refuse to recognize Israel as a Jewish state”

Well, OK, then. If the Palestinian Authority sticks to this position, the current partition talks will go nowhere (like all previous iterations). The question of recognizing the character of the state is, as Ari Shavit (a self-declared leftist, by the way) put it some years ago, “the core of the conflict.”

From Haaretz on 20 December:

According to [former PA negotiator Muhammad] Shtayyeh the declaration of Israel as a Jewish state implies the prevention of Palestinian refugees from returning to their homeland, opening the door to the expulsion of Palestinian citizens of Israel from their homes and the imposition of the Jewish narrative on the history of this country, thereby rejecting the Christian and Muslim narratives.

Yes to Shtayyeh’s first point if “homeland” means within what would become the recognized borders of Israel, but no to the second. I am not aware of any but the farthest-from-the-mainstream actually advocating expulsion of Israel’s Arab citizens. On the other hand, as best I can tell, it just assumed that Jews will be expelled from the proposed Arab state of Palestine and, of course, would have no right of return (and should not have) to the part of their homeland that becomes outside the borders of Israel.

As for Shtayyeh’s “narratives” point, as far as I know, the Christian narrative–if there can be said to be one such narrative–does not deny that the land in question is the historic homeland of the Jewish people. If there is indeed a single “Muslim narrative” that denies this historic fact, then it is not an equivalently legitimate narrative.

The idea of a partition is that each of the people with competing claims to the territory being divided gets its own state. I do not see how an agreement can be signed that does not recognize each state as the state of one of those peoples. Ideally, it should also grant protection to the minority, who would be allowed to remain within the borders of the other people’s state. However, Shtayyeh may be right about one thing: a partition could open the door to migration of Arabs out of Israel (less likely to be through “expulsion” as through choice amongst perceived-to-be bad options). Most (all?) partitions are accompanied by population transfers. And that is why a partition process is not really a “peace process”. Partitions, and especially population transfers, are not typically peaceful.

Note also that Shtayyeh’s references to narratives refers to religions. Although some tendencies within the State of Israel blur the lines, the Jewish state is not about a religion, it is about a national group’s right to sovereignty–national liberation, in other words. This is not a small semantic matter, though it gets elided regularly by all those who have an agenda against the existence of an ordinary “secular” and democratic state in the ancestral home of the Jewish people.