The debate ahead of the Constitutional Referendum on Sunday has been very poor, politicised, highly personalised and it did not focus on the core issues of the Renzi-Boschi proposed reform. The reasons why we stand for ‘No’, which remain the same from the beginning of our campaign, more than years ago, is based on an article-by-article assessment.
The first problem is with form. One of the most recurrent arguments of the ‘Si’ front, and overstated by the current Prime Minister, is that those in favour of the reform stand for change, the others must all be conservatives. This argument is inconsistent because change is not a value in and of itself: change can be for the better but also for the worse. This reform is a clear example of a change for the worse of our constitutional system. It is a missed opportunity to adopt more precise, humble and shared changes of the Constitution.
Constitutional reform is really a task for Parliament and it is inappropriate for a government to promote such a reform. The Constitution was adopted with 453 votes in favour and 62 against in a historical moment when the ´convention ad excludendum´ was already in use and, thus, there were already strong divisions within the government. Nonetheless, as further evidence that we are dealing with fundamental norms about the system of our country that everybody should be able to identify with, the Constitution was adopted with 81% of the consensus in stark contrast with Renzi-Boschi´s 56%. Moreover, at that time, De Gaspari did not interfere with the work of the Constituent, and he intervened only once as MP: this is because, as Calamandrei said, when the issue of the day is the Constitution, the seats of the government should be empty so that the parliamentary assembly can freely debate and decide.
Additionally, there have been constant abuses, including obstructions, throughout the approval process of this reform. The process was really far from the spirit of our Constitution, which calls for the widest possible majority to change norms and fundamental principles of our constitutional arrangements. Indeed, they succeeded in dividing the country on the only issue that brought this country together, something people did not question: our Constitution. Congratulations, really.
On the substance: the composition of the Senate proposed in the reform is characterised by many incredible contradictions. Firstly, we need to clarify one thing: it is not true that senators will be elected directly by citizens. Article 57.2, as amended, unequivocally provides that “Regional Councils and Councils of the Autonomous Provinces of Trento and Bolzano elect with a proportional method those senators amongst their own constituencies and for each and any one of them, amongst mayors of the municipalities within their territories”. Paragraph (5) provides, with rather vague language, that senators will be elected “according to the choices expressed by the electorate for regional councillors when there is the renewal of these organs”. This article does not envisage direct election and any new electoral law that attempts to limit the power of Regional Councils would be of doubtful constitutional legitimacy. Not to mention the absurdity of talking about a second ballot paper for the Senate as the one the Chiti-Fornaro proposal envisages. We can see that this is absurd from a mere logical viewpoint. This proposal, according to its promoters, would provide for a second ballot paper to indicate regional councillors that would become also senators, with only one candidate in each list, each constituency and as many constituencies as there are senators to elect in any given region. Let´s consider, for example, the eight Regions and the two Autonomous Provinces that would elect one regional councillor as senator: what happens if the candidate chosen by the party in that region to seat also as senator were not elected with the first ballot paper because he fails to obtain enough votes? Puff. This is the end of the Chiti-Fornaro. Either they provide by law prophetic powers to foresee which councillors will obtain more votes on election day or the second ballot paper is impracticable.
At a time of severe crisis of our democracy and political representation, instead of focusing on how to re-establish ties with those citizens who do not feel represented, this reform seems to be going in the opposite direction as it further increases democratic deficit. The way they act suggests that, since there is growing abstention and people do not turn out to vote, Government can take away this right from us. One of the recurrent arguments is about cost reduction: the cut would amount to 58b million each year, according to the Department of General Accounts (an agency that depends on the government). This amounts to the cost of one coffee per year for each citizen, at the expense of the right of our citizens to elect their own representatives. Our country spends 50 million every day for the military. This is just to give an idea about the costs that we could cut immediately, by law, without damaging that delicate balance of powers every Constitution should ensure.
The number of members of Parliament can certainly be reduced, this is not a taboo, but this ought to be done ensuring a balance between the Chamber of Deputies and the Senate. For example, with Civati´s proposal, we were calling for a reduction up to one third of members in both Houses. Differently, the reform we are discussing here does not affect the 630 members sitting in Parliament today. The imbalance between a Chamber of 630 members with a supermajority (the Italicum accords 55% of the seats to the first party) and a Senate of 100, there is the risk of giving too much power to the majority governing party when important appointments are made (e.g. the election of the President of the Republic, lay members of the Superior Council of Magistracy and constitutional judges).
Another lie that was told about this this reform is that it strengthens Autonomous Regions and Provinces. There is nothing in the reform that ensures that individuals elected as senators will truly represent the interests of the local authorities they belong to. People make a comparison with the German Bundesrat. However, this body is substantially different from the one proposed by this reform in at least two ways. Firstly, the representatives of the Laender have a clear binding mandate that ensures that they represent the interests of the Land in which they were elected. They cannot depart from this. Secondly, in federal senates, regions tend to be represented on equal footing because the purpose behind this system is to create a chamber that compensates for the differences between regions and enables them to discuss on an equal basis (see, for instance, the American Senate or Switzerland). In our case, there would be proportional representation according to the size of the population: the 8 autonomous regions and the 2 autonomous provinces would have 2 seats (Trentino Alto-Adige with a 1 million population size would have 4 and, inexplicably, Liguria, with 1.5 million inhabitants, would only have 2), Lombardia 14, Veneto and Piemonte7 each. Clearly, this system would accentuate and crystallise differences amongst Regions, not reduce them.
Additionally, is yet another distortive element: having a Senate with a changing composition. Senators´ mandates would be tied to their mandates as regional councillors or mayors, with elections for theses posts taking place at different times. It is estimated that, in 2019, 26 senators will already have changed, and, in 2012, 26. Indeed, those who champion governability at all costs have succeeded in designing a permanent Senate, which cannot be dissolved by the President of the Republic, with a variable majority which will be able to block important bills. These bills, as provided by the first section of Art. 70 include constitutional bills and other bills dealing with important questions, including those linked to the implementation of the European norm) that will remain within the system of “perfect” bicameralism.
Not least, it is also absurd to have 5 senators, appointed by the President of the Republic, for a 7-year term who no longer represent our country nor local authorities. One might ask: whom do they represent? Themselves? The President of the Republic? Moreover, in a Senate with 100 seats, they would count as a political party with a 5% share – this is not joke.
The Renzi-Boschi reform has also dramatically failed to simplify things. This reform does not simplify the legislative process; rather, it complicates it. In fact, it foresees a variety of different and undefined processes for different categories of issues. This will inevitably lead to persistent disputes on the question of responsibility before the Constitutional Court. This is because the reform provides that the Presidents of the two Chambers decide together on the legislative procedure that is applicable to any given matter, should there be a disagreement between the two Chambers of Parliament. What if the two Presidents, with opposing interests, cannot agree? The reform does not give a solution. Well, we would end up before the Court with a new dispute on the matter of competence between the two Chambers. This would inevitably slow and complicate the legislative process.
Furthermore, the new procedures – with an exception of the system of bicameralism that applies to certain cases – would enable the Chamber of Deputies to overcome any amendment proposal by the Senate with a simple majority (or absolute majority, in certain circumstances). The point is that the first party in the Chamber will have an absolute majority by default under the current electoral law. Consequently, on all questions relating to the Regions and on amendments by the Senate, the Chamber can simply shrug its shoulders and carry on. The proposed new functions of the Senate are so vague that its powers look like a joke. What does it mean to provide that the new Senate “concurs to express opinions on appointments which the Government is responsible for” without specifying with whom the Senate should concur? In addition, the text does not explain what the consequences of these opinions are, whether they are binding or they can simply be passed upon with a shrug.
It is totally acceptable to talk about overcoming perfect bicameralism. But the question is: to achieve what? This reform is simply a mess. For example, it would have been possible to imagine a strong Senate that would exercise control over the Government, control that this reform affords to the Chamber that is itself controlled by the same majority that supports the Government. We end up with those who control being of the same party of those who are controlled – a masterpiece, indeed. The alternative was to create a real Senate of the Regions, which, as I explained before, is something completely different. Moving from a perfect bicameralism to a poorly executed bicameralism would create many more problems than it would solve. No, thank you.
The push towards a more centralised system that further weakens the autonomy of the Regions and Provinces is at the core of the review of Title V. This involves not only concentrating important competences (e.g. foreign trade and the production and distribution of national resources), but also the introduction of a clause on supremacy. According to this new clause, it would be sufficient for the Government to invoke an undefined and vague national interest to take for itself potentially any competency belonging to the Regions. This would initiate a bicameral procedure. The Regions, however, would certainly not welcome the idea of losing their own competences. The reform of Title V would not apply to Special Statute Regions until they are not themselves reviewed. However, these regions too have something to worry about. According to some experts, the framework of Special Statute Regions needs review even in order to have representatives in the new Senate due to the incompatibility of the post as regional councillor with that of Member of Parliament.
Finally, this reform merely constitutionalises hopes: it is untrue that it strengthens popular initiative. It certainly increases the number of signatures required (from 50.000 to 150.000) to table these laws. Meanwhile, with regard to the form and the limits of discussion and approval, it simply refers this to a future review of Parliament regulations. Similarly, it refers to a constitutional law the establishment of proposed referenda eventually. Potentially, we could wait for 22 years for this law as well as for the one implementing abrogative referenda. It is not even true that it would strengthen these referenda: the quorum is lowered only for those proposals backed by more than 800.000 signatures. However, as an example, the Democratic Party only had 504.000 signatures in this referendum. This threshold is hard to meet, with the exception of those proposals supported by large intermediate bodies. This instrument should rather be for the citizens. If they really intended to strengthen these laws, it would have sufficed, as we proposed, to make provisions to include electronic signatures. This is already used for European Citizens´ Initiatives.
Indeed, this reform encourages power centralisation mainly in two ways. Firstly, it transfers powers from the legislative to the executive branch. To do so, it does not need to change any norm on the powers of Government. In fact, it is enough to weaken checks and balances, and to have a strong majority of the governing party in the Chamber of Deputies. Secondly, it transfers powers from the Regions to the State. Moreover, the target of the reforms is wrong. “Yes” supporters believe that we need to speed up things to keep up with the present. Yet, during this legislature, 180 laws out of the 224 that have been approved after the first reading in the two Chambers. 39 had a third reading and only 4 were caught in the ´Ping-Pong´ situation with two readings in both Chambers of Parliament. Italy produces the second largest number of laws each year in Europe, well above the European average and only after Germany. When there was the political will to make a law, it was possible to do so in 20 days (see “Fornero” law). Frankly, I do not believe that there is a problem with making more laws or making them more quickly. The issue is to make better legislation in an optimal and rational manner. It is really a paradox to hear members of Government say that legislation our country needs is blocked by the Senate. So are you really telling us that, in the cases of the legislation on soil consumption and against homophobia, blocked by the Senate, it is the Constitution that is halting the process? Isn´t it the case that there are individuals within the governing majority who simply do not want to pass those laws? They are the ones slowing themselves down. Instead of taking their own responsibilities seriously, they prefer to point to the finger at the constitutional framework. In reality, the problem is de facto political.
I think that there are numerous reasons on the merits, which I have tried to list here, that demonstrate that simply by reading the text of the reform it is possible to be convinced to vote against it. “#justreadit”
For those who accept the political argument that the “No” voters vote like Casapound, I would like to remind them that also in 2011 we voted like Forza Nuova and CasaPound on the issue of public water and against illegitimate impediment. And when, in 2006, we voted against Berlusconi´s reform just as Italian Social Movement did. Nobody at the time seemed shocked by this and people have not changed their mind on the question of public water. Indeed, this reform touches upon 47 Articles of the Constitution (almost 1/3 of the total) and there are different reasons to be against it. Honestly, I do not care about Berlusconi´s or Salvini´s reasons to vote “No”. I am interested about our reasons, based on an assessment of the real changes that the reform would bring about. I hope I have explained them here with sufficient clarity. Sunday we vote on the Constitution. Our Constitution was made to last for generations. It would be a huge mistake, impacting also those who will come after us, to make our vote depend on today´s political situation rather than on the text of this reform.
Some argue that we should approve this reform now to improve it later, otherwise nothing changes. I want to say that the change proposed here makes the situation worse and, if we approve it, it will last for who knows how long. This is also due to the fact that it would become much more difficult to modify our Constitution with a Senate with a variable majority. On the contrary, we already have a majority across parties to make some timely, humble and shared changes to our Constitution. For instance, in 2013 we tabled certain reforms based on the programmes of major political parties, later resumed in this document written by some constitutionalists. For example, we proposed a Senate could that not give a vote of confidence, but that would still have strong powers to check the Government. We called for a balanced reduction both of the number of Members of Parliament and of their indemnities. We proposed the establishment of a Joint Committee to facilitate agreement between the two Chambers. We also wanted to strengthen those tools of direct democracy. Change is possible, but it ought to be for the better, not the worse.