Lorenzo Spadacini: "Constitutional Reform and Right-Wing Populism in Italy"

"I would like to thank the University of Leipzig for this esteemed invitation. In particular,

I want to thank Vice-Fecteur Miedel, the head of the recent globe, and Fabian Mihle, with

whom I recently collaborated on German electoral legislation and with whom the collaboration

will continue in the next months and years. But especially next month, because Fabian

is expected to come to Brescia in September. The topic I was asked to speak about combines

the issue of constitutional reforms in Italy with the characters of the type of right-wing

populism currently dominating the Italian government and it requires some preliminary

clarifications. Firstly, I would like to clarify in what sense I use the notion of right-wing

populism in this presentation. The first clarification is that I take for granted that the larger

part of the current governing majority in Italy consists of political forces that easily

fit into the category of right-wing populism, at least if you take in account their public

discourse. The attribution of the current majority in parliament to the family of the

right-wing populism is quite clear from this point of view. In particular, this is undoubtedly

the case for Lega Nord and Fratelli d'Italia, two of the major parties in government at

the moment, both advocate law and order issues and the notion that states should be inhabited

exclusively by members of the native group, the nation, and that non-native alien elements

fundamentally threaten the homogeneous nation-state. This, combined with a rhetoric that opposes

real people interests, as they say to that of perverted elites, is probably enough for

ascribing the government to right-wing populism. Indeed, these two forces combined obtained

35% of the votes in the 2022 elections. This constitutes the four-fifths of the votes obtained

by the centre-right as a whole, amounting to 45% of total votes, which translated into

about 60% of the seats in both chambers in Italy. The remaining fifth of the electorate

of the centre-right coalition is attributed to Forza Italia, the party once led by Berlusconi,

which now appears as a mainstream party but also has quite clear populist roots. However,

if one takes into account the policies actually implemented by the government led by these

political groups, their valuation becomes more ambiguous. Fratelli Italia, the party

of Giorgio Miloni, the current head of government, has a very pro-Atlantic stance on the issue

of Ukraine. The government as a whole has eased tensions with the European Union, in

particular the relations between Miloni and von der Leyen are very good, and no significant

measures have been taken on grounds as immigration, abortion, homosexuality and so on. Therefore,

as a first assessment we cannot take for granted that the governing majority in Italy can be

classified as right-wing populist. As I will try to argue, it is precisely in the realm

of the conception of the constitution and democracy that it is easier to find the elements

that allow us to classify the centre-right government in Italy within the family of populism.

In this area, in fact, proposed policies and public discourse seems to align.

The second clarification regarding the notion of right-wing populism concerns the second

part of the binomial, it is populism. I do not try to provide a precise definition of

populism. Indeed, I think it's a very complicated operation, especially for a lawyer as I am.

I would leave this task to political scientists or legal theorists who seem better equipped

on this point. Instead, I try to limit my presentation on right-wing populism to the

constitutional implications of populism in the matter of constitutional reforms. For

the sake, I start from the assertion that the themes on which populist political forces

distinguish themselves are generally three, at least according to Italian perspective.

First, as an expression of the – I'm sorry, I need to – as an expression of the antialities

nature of populist parties, often they contrast the institutions of representative democracy

with those of direct democracy. The emphasis on the use of referendums as an alternative

to legislation by parliament is sometimes a way of articulating a classic populist discourse

that opposes the true will of the people, as they say, to that of the elites who dominate

not only the economy but the institutions as well.

This kind of populist approach to constitutional issues in Italy has been typical of the Five-Star

Movement, a party that was in government in the previous legislature. When that political

force was in government, a constitutional reform project was proposed with this aim.

It provided for a form of popular legislative initiative followed by a referendum on the

Jesuit model. In my opinion, it was a quite balanced proposal that was not in opposition

to parliamentary representation. However, I must specify that although I was not part

of that movement, I work on that project within the government. Therefore, my judgment should

be taken with some caution. In any case, this kind of ultra-democratic populist approach,

which perhaps indeed belongs more to left-wing populism, is not all present in the current

right-wing populist government. Thus, it falls outside of the scope of our investigation

today. The second clarification aims to highlight

a peculiarity of Italian right-wing populism compared to that of other European countries,

such as Poland and Hungary in particular. A typical feature of populism, not just right-wing

actually, is certainly a poor relationship with the liberal aspects of constitutionalism.

It has the need to limit democratic power in general, and democratic power as well.

The typically populist need to free the people, as they say, from the constraints of constitutional

forms has often led populist governments to rid themselves of one of the typical defense

mechanisms provided by liberal constitutionalism. I am referring, namely, to constitutional

review. This is undoubtedly the case with the domestication of the constitutional courts

in Poland and Hungary. In any case, this approach to constitutional limits, which involves threatening

constitutional courts and constitutional review, does not apply to the Italian case, at least

at the moment. There are no attacks in Italy from the right-wing populist government on

the constitutional court, its role, or its appointment methods.

Third, the dissatisfaction with the liberal dimension of constitutionalism, however, does

not only take the form of criticism of constitutional review in populistic discourse. Often it takes

the form of a real intolerance for the role of parliament as the place of representation.

In this sense, right-wing populism is clearly anti-parliamentary since parliaments are places

where the mythical unitary representation of the people, which is a trope of the populist

discourse, is broken down into its pluralistic and contradictory components to be mediated

in the construction of the political will of the institutions.

And consequently, it is a way of being populist that emphasizes the role of the executive

at the expense of the parliament. The connection between populism and anti-parliamentarism

probably does not need much argumentation, at least regarding the Italian case. Consider,

for example, the experience of fascism which, at least in its early stages, it has a clearly

populist and specifically anti-parliamentary connotation. Indeed, the populist nature of

fascism, at least in its origins, is largely asserted by intellectuals like Luigi Ferraioli,

Umberto Eco, or Antonio Scuratti. Just look at the Prime Minister Mussolini's first speech

to the chamber of deputies on 1922, when the Mussolini government was still a parliamentary

government supported by a majority of liberals and members of the Catholic Party. Mussolini

in that case famously stated that, I quote, "the Italian people in its better part had

given itself a government outside, above, and against any designation of parliament."

Adding laconically, I could have made this death and great hall a bevac of squads. I

could have barred parliament and constituted a government exclusively of fascists. I could

have, but did not want to at least at this first time. This is a very famous quotation

of Mussolini at the beginning of his regime. Therefore, in essence, I limit the subject

of this discussion on right-wing populism and constitutional reforms in Italy to the

theme of anti-parliamentarism as a stream of populism that dominates the current government's

approach to reforms. Finally, having delimited the topic, a methodological specification

is needed. The theme of parliament within the constitutional system obviously pertains

to the form of government, which does not only consist of formal constitutional norms,

it implies a special role, at least for electoral provisions, which in Italy, as in Germany,

are formally legislative. Therefore, I will deal with materially constitutional provisions,

but not always formally constitutional ones. The anti-parliamentarism of the current majority

in parliament on the subject of constitutional reforms clearly emerges, in my opinion, and

I would say in the majority of Italian scholars' opinion, from the draft constitutional reform

bill on the introduction of what in Italy has been called "premierato" and its consequences

on electoral legislation. With this very un-technical expression, the premierato, we essentially

refer to a series of parliamentary form of government generally grouped because they

realize a form of prominence of the executive. In essence, in the Italian public opinion,

this category would include very different forms of government, from the UK model to

the German chancellorship. These are forms of government that would achieve greater strength

and stability for the executives, with the government being derived from a direct choice

by the voters, at least according to the conceptualization provided by political science, and then very

uncritically adopted by constitutional scholarship. In truth, the premierato is a model of government

that does not have much to do with the mentioned examples. These examples constitute variants

of the parliamentary form of government with some rationalization. Rather, the premierato

is a category that recalls the so-called neo-parliamentarianism of Maurice Duverger and has found concrete

implementation in Italy at the sub-state levels of government, as I will explain later in

the presentation. But anyway, the aim of the reform proposed, in fact, is twofold. First,

the need to make Italian governments more stable. Second, the need to allow a direct

voice of voters in the formation of government. Regarding the need to make Italian governments

more stable, there is little to say. Italy has had around 70 governments, different governments

in 80 years. It should only be noted that the governmental instability for many years

was accompanied by exceptional stability in the political formula, an expression which

means the set of parties in support of the government and the party dominating the executive,

the Christian Democrats, which led the country from 1946 until 1992. Instability became endemic

regarding majority political formulas only after the fall of the Berlin Wall. In fact,

lastly, the fall of the Iron Curtain led to the complete collapse of the so-called First

Republic's party system, the emergence of new political forces and a populist-type dominance

in the centre-right led by Silvio Berlusconi. Second, regarding the need to give voters

a direct voice in forming the government within the limits of constitutional democracy, I

think it is a completely legitimate political objective given that in Italy those political

conventions that in other countries with a parliamentary form of government have made

the leadership of the government rather predictable by the voters have never operated in Italy.

However, this political objective is pursued through a very questionable technique and,

as I will try to say, reveals the anti-parliamentary and populist nature of the majority's approach

to the constitutional form of government. It is now necessary to see how these political

objectives, allowing the voters to influence the leadership of the government and stabilising

it, are pursued. To this end, the government's proposal introduces the direct election of

the Prime Minister by the voters. It does not adopt a presidential form of government

like that of the United States of America, nor a semi-presidential form of government

like the French one. In fact, it adopts a form of government similar to that experimented

by Israel between 1992 and 1997. That form of government, with a direct election of the

head of the government, did not work in Israel mainly because, while maintaining the trust's

relationship between government and parliament, it elected a head of the government, often

unable to find a majority in the chamber. To avoid this malfunctioning of the Israeli

experiment, the Italian government's reform proposal finds a drastic solution which, as

well as we will see later, seems to be distinctively anti-parliamentary and populist. Indeed, the

reform provides that the elected president must be granted, by law, an absolute majority

of seats in both chambers for past party lists formally connected to him or her. This is

the core of the project. Moreover, to stabilise the parliamentary majority, the president

is granted the power to dissolve the chambers if they express a vote of no confidence in

him or her. It seems to me that the core of the reform reveals the anti-parliamentary

nature of the majority's approach to constitutional reforms in these terms. First, the mechanism

ensures that the composition of the chambers is no longer the direct result of the voters'

choice in an election that concerns the member of parliament. Indeed, the composition of

the chambers will be a derivative of the election of the government's head. Once the prime minister

is elected, he must be granted a majority of seats in all cases in both chambers. The

method of electing the prime minister, whether in one round or in two rounds, is not specified

in the constitutional reform. What is specified, however, is that whatever the case, the president

must be granted an absolute majority of seats in both chambers to party lists connected

to him or her. And this includes the following scenarios. He or she is assured a majority

of seats even when the coalition linked to the losing candidate has more votes than the

winning one, and even when it has an absolute majority of votes. He or she is assured a

majority even when he is linked to lists for parliament elections that have very little

support. For example, a famous person capable of attracting many votes to himself, but without

connections to traditional political forces. He could win, let's say, with 41% of the votes

as a candidate prime minister and be linked to lists, to party lists that perhaps obtain

only 10 or even 5% of the votes. These leads would have 51% of the seats in the two chambers.

And the same in case of a runoff, it could happen that the second candidate in the first

round, let's say with 39%, the first with 39% of the vote and the second with 25% of

the votes, there will be a runoff between the two candidates. The second candidate can

win the runoff, of course, and the list links to him, perhaps with 30 or even 30% of the

votes will get the prize, it asks the 51% of the seats in parliament. He or she is assured

a majority of seats in the chambers even when he wins with the decisive support of Italians

abroad. There are 5 million Italians abroad, while voters in Italy are about 50 million.

Currently, these voters elect only 12 MPs out of 600. But in the election of the prime

minister, they vote will wait as much as that of Italians in Italy, of course. And if the

president wins with the decisive contribution of Italians abroad, they could potentially

shift hundreds of seats elected in Italy, as we will see later. The political legitimacy

of the MPs elected this way will be very low. They are elected as a function of the premier

selection, not for the votes they gather of themselves. This is delegitimating for the

parliament and are uproots the possibility of reconstructing a normally structured party

system. Moreover, they will be parliamentarians significantly limited in their freedom. They

are elected with the purpose of supporting a prime minister and if they vote against

him, the prime minister can dissolve the parliament. The attribution of the proposal to populist

anti-parliamentarism naturally betrays a conception of democracy intolerant of the limits and

forms according to which it must be carried out based on the principles of liberal democratic

constitutionalism. In particular, it seems to be in clear tension with the principle

of the separation of powers, which operates even in parliamentary forms of government.

In fact, the liberal democratic forms of government defer regarding the legitimation of the executive

in presidential systems, it is direct from the people, while in parliamentary systems,

it is derived from parliament. However, comparative constitutional law does not offer examples

of the indirect derivation of parliament from the executive's election, like in the proposal

of the government. When there is direct election of the executive, as in presidential system

moreover, a greater system of checks and balances functions. Just think of the US system with

its checks and balances mechanism, which are not present in the reform proposal at all.

In the US, the houses have completely autonomous legitimacy. The president can indeed be in

the minority, not only in one, but in both houses. The House of Representatives is subject

to renewal after two years. The Senate during presidential elections is renewed only by

one third. Moreover, the president can never dissolve the houses. None of these guarantees

is present in the government project.

That said, I would like to try and offer a further consideration. While it seems clear

to me that the current majority's proposal is populist in nature, I feel I must specify

that this approach in Italy is not specifically attributable only to the right. Indeed, proposals

and implementations of such forms of government have characterized the entire constitutional

history of Italy since the 20s, reappearing now and then throughout the last century.

Similar systems are already operating in Italy at different levels of government. And third,

a good part of political forces, not only right wing, but also central left wing, have

advocated in different periods similar proposals. In essence, it seems to me that the anti-parliamentarian

approach demonstrated by the right wing populist forces currently in government is not specifically

right wing, but rather realizes a much more common and permanent populist anti-parliamentarianism

widespread in Italian political system.

I think I can try to demonstrate this assessment through some historical references capable

of showing that systems like the one proposed have been very widely cross-party in Italian

political system for a long time. These are mechanisms that in fact alter the composition

of the representative assemblies with a majority bonus for the winner, for the head of the

executive. Even when this has been provided for without an explicit legal provision for

the direct election of the executive's head, it does not change the sense of the overall

mechanism. These are mechanisms that do not present in any democracy in the world as long

as I know, with the partial exception of Greece.

Let's look at some of these examples and how do the mechanisms work.

The first example is the Acherbo Law, 1923, named after the deputy who drafted it. It

was an electoral law adopted in the 1924 Italian general election. It introduced a majority

bonus to the proportional system. It was wanted by Mussolini to ensure a solid parliamentary

majority for the National Fascist Party, but it was voted for by People's Party and Liberal

MPs. The fascists at the time had just 35 deputies out of 535 in that chamber. The new

system modified the proportional system in place but by integrating it with a fixed quote

majority bonus of two thirds of the seat of the chamber for the most voted party provided

it surpassed the 25% threshold.

The second example is the Shell Ballot and I pass through it. The third example is from

1953. The third example is the law of March 25, 1993, number 81, voted by the centre and

the left parties. It is an Italian state law that regulates the election of mayors, presidents

of the provinces and the municipal and provincial councils. It is commonly identified as the

law that introduced in Italy the direct election of the mayor by citizens. The mayor is elected

in the first round if he or she obtains more than 50% of the votes, otherwise Aranov is

held between the top two. The coalition of parties supporting the winner is granted in

any case 60% of the seats in the Assembly. I give you an example because it's an example

of what it would work a system like that which is the same the government is proposing for

national level. As you can see this is a 2012 Parma Municipality election. The mayor presented

by the Five Star Movement obtained in the first round the 20% of votes more or less.

The centre-left candidate obtained the 40% of votes more or less. So there was a run-off

between the two. The Five Star Movement got the 60% of the votes and the centre-left coalition

candidate is stuck in the 40% of votes. But as you can see the allocation of seats in

the Assembly is like that. The party with the 90% of the votes for the Assembly took

21 seats out of 33 which means two-thirds of the seats because the mayor is granted

a majority of seats for party linked to him. This is exactly the system that the government

has in its mind for national level and so more or less the same actually it works for

at regional levels. In Italy the only difference is that there are not two rounds so the most

voted president of the region got the position and the list linked to him or her awarded

the 55% or 60% of the seats in any case. And other examples are for the constitutional

proposal, a constitutional reform proposal by the centre-right coalition in 2005 was

more or less the same mechanism but it was rejected by popular referendum in 2006. But

maybe this is too small to see but this is another example is the electoral law in place

from 2005 until 2014 it was again a proportional system with a majority bonus and the winner

coalition was granted the 55% of the seats. These are the real results of 2013, there's

a mistake, the 2013 not 2014 elections, these are the results. The centre-left coalition

led by Luigi Bersani got 29.55% of the votes, the centre-right led by Silvio Berlusconi

got 29.18, it means they had just 100,000 votes of difference but because the centre-left

won the centre-left was granted 340 seats with the same votes actually as the centre-right

coalition that got 124 seats. As you can see for example the Democratic Party with 25%

of the votes which is less than the five-star movement 25.56 so they are 20 or 30,000 votes

more for the five-star movements and the five-star movements got 100 seats and the Democratic

Party got with less votes 300 seats which is the tripe actually and these are another

example on how this mechanism works in manipulating the result of the election in order to ensure

a majority of seats to the winner for another position. This electoral role was declared

unconstitutional by the Constitutional Court in 2014 after these results but anyway was

used in three elections in Italy unless it was unconstitutional. And the last example

is more or less similar to this electoral law in 2016 the Renzi government which means

the centre-left government proposed a mechanism very similar to this one with some change

management but very similar and the Constitutional Court declared it unconstitutional before

using it this time and Renzi proposed a constitutional reform another constitutional grand reform

according to this model basically and the people rejected it in a popular referendum

again. So based on what has been stated some concluding consideration on the proposed theme

can be made. The first is that the approach to constitutional reforms by the current right-wing

majority in parliament certainly belongs to the family of populism on the issues of Europe

immigration civil rights however the centre-right majority appears to display clear contradictions

between public discourse and the policies actually implemented. This is not the case

regarding constitutional reforms. Second the populism the current majority in government

in terms of constitutional reforms seems characterized by its anti-parliamentarian nature emphasizing

the power of the executive at the expense of the effectiveness of parliamentary representation

almost as if democracy could be reduced to the identification of a single monocratic

decision-maker disregarding the system of separation of powers that characterizes every

liberal constitutional order especially when the head of the executive is directly elected.

Third however the populist anti-parliamentarianism of the centre-right currently in government

in Italy does not seem typically in the Italian context of an approach exclusively attributable

to the right-wing populists. In fact over time the anti-parliamentarian approach has

been adopted not only by centre-right forces but also and not accidentally by forces attributable

to the centre-left which have therefore not been free from populist impulses on constitutional

grounds. Fourth, curiously on constitutional grounds the greatest resistance to populist

impulses in the anti-parliamentarian variant has not come allow me to some simplifications

from the elites but from the people who through the referendum instrument have rejected all

these anti-parliamentarian grand reform attempts. Regarding the current government's latest

attempt which I try to summarize today it does not seem that the centre-right can be

easily stopped in the chambers so one might ask will the people have to stop the populists

again? Thank you.

Thank you.

Thank you.

Thank you.

Thank you.

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