Faced with the regular questioning of the legitimacy of independent bodies, the economist reminds us, in an article for L'Obs, of the three reasons why we need them.
From Putin to Erdogan, from Netanyahu to Orban, autocrats who have come to power through the ballot box strive to consolidate it by progressively eradicating the checks and balances: the media and the independent branches of the state that can emancipate themselves from the powers that be. Nothing new or surprising here.
On the other hand, a symptom of a faltering democracy is the denunciation of a so-called "Republic of Judges" by political party leaders who claim to respect the Constitution but are unhappy with a particular ruling. Recently, the French Constitutional Council, whose decision on the pension reform had already been the subject of vituperation from the radical left, was accused by the right of a "coup d'état" or "democratic hold-up" for having censured a large part of the immigration law, even though it had merely read the Constitution. More generally, the legitimacy of independent bodies is regularly called into question. Should the people be sovereign?
Separation of powers requires vigilance
Let's be clear: while the independence of judges and authorities is a cornerstone of our modern democracies, it is not a panacea. Firstly, independent authorities are only as good as the quality of the selection process used to select their leaders: impeccable competence and the ability to internalize the mission by detaching oneself from ideological preconceptions (the recent decisions of the US Supreme Court show the relevance of this last criterion!). Secondly, their mission must be clear and delimited, as I argued recently [in "Socially Responsible Agencies", published in Competition Law and Policy Debate, volume 7, no. 4, April 2023, pp. 171-177]. A precise mission limits the amount of subjectivity that inevitably lends itself to criticism.
In this respect, we are concerned by the legislator's tendency to pass increasingly vague laws, encouraging judges to rule in areas that normally fall within the latter's remit, thus undermining the principle of separation of powers. Partisan politics, media strategies and unfounded amendments sometimes overshadow the less visible but infinitely more important task of working on the texts.
In the same way, we can be concerned when the executive branch abdicates its responsibility in the hope that independent bodies will take over. Cases in point are the environment and the bailouts of banks and sovereigns. The Central Banks thus had to go deeply into unconventional monetary policies to rescue the economy and (in Europe) other countries; there is also a lot of pressure on those independent actors to substitute for the faulty governments to solve the climate, inequality or other societal challenges. Yet, the independent agencies have neither the legitimacy to deputize for the executive (for example, committing public funds to help other states is a political decision), nor the capacity to fulfil such missions (independent authorities have no means of checking CO2 emissions or taxing them).
To be certain, some parts of the Constitution may be obsolete or counter-productive. While the U.S. Constitution (admittedly threatened today by the political subjugation of its judges) has proved its resilience over two and a half centuries, some of its articles, including the right to bear arms, have long been seen as questionable. No constitution is perfect. A constitution does not anticipate every contingency. The drafting of a constitution faces a dilemma between precision that limits future flexibility and a statement of broad principles that are reasonnable but vague, leaving much discretion as to their interpretation when specific problems arise.
What's more, a Constitution is never conceived behind a veil of ignorance: its promoters can put forward their own objectives. The Founding Fathers of the American Constitution, while generally humanistic, did nothing about the slavery from which most of them benefited. We should also remember that the purpose of the 1958 French Constitution was not, at the outset, to create checks and balances, but to protect the executive from the legislature.
A formidable narrative
A good narrative wins immediate acceptance: its message is "self-evident". As such, it prevents or discourages us from reflecting on its consequences. The archetypal narrative is "the people are sovereign". How can a true democrat object to this narrative, or even have reservations about it? (Let's forget the next step here, the implicit corollary of politicians holding this discourse: "we are the people", which should alert us).
There's a groundswell among our politicians, intellectuals and communicators today. Turn on your radio or TV, and you'll hear the speaker say that the current political malaise stems from the absence of true democracy, that the elites (from whom the speaker temporarily excludes themself!) are out of touch and govern the country without any knowledge of the terrain... Of course, there's a grain of truth in this discourse, which establishes its legitimacy. But the point is not to judge the system in absolute terms, but to compare it with the alternatives. And that's where the problem lies.
So all we need to do is organize citizen-initiated referendums or citizens' conventions, clamp down on the independence of judges, the Supreme Court, and independent authorities, and “at last” let the people express themselves (essentially on subjects on which they agree with the speaker, of course)?
The fact that liberal democracies the world over (including Switzerland and California, the poster states for deliberative democracy) are built around representative democracy institutions should give us pause for thought.
When people work against themselves
Were the people right to vote for the Nazis? To turn a blind eye to the persecution of Jews and other minorities? To vote for Brexit? Will they be right to re-elect Trump in November? To reinstate the death penalty in countries where it has been abrogated? To proclaim national preference? To vote opportunistically for a repudiation of the State's commitments (for example, by discriminating against foreigners, by refusing to obey Europe’s binding decisions on member states, or by repudiating the State's debt)?
There are basically three reasons why, in their own interest, people need counter-powers: lack of information, protection of minorities and fundamental rights, and short-termism.
- The lack of skills and information is clear. Since our individual vote will never change the outcome of a referendum, we all free-ride and don't acquire enough information to mitigate our prejudices and understand the real stakes of a decision. More generally, the sovereignty of the people does not guarantee their accountability; votes in referendums are often determined as much by personal support or opposition to the government in power as by the question being asked. What's more, the exact wording of the question, its framing has a decisive impact on the outcome.
For centuries, representative democracy has been the preferred approach to remedying (but not eliminating) the information problem. Our representatives have far more time to devote to public affairs than we do, and can avail of a staff to assess the consequences of alternative policies. Of course, nothing is perfect: for example, France has far too many representatives (nearly a thousand, even though it is a small country) and far too many layers at decentralized level. And we can regret the lack of intellectual depth and disrespect for others in debates within the parliament.
- The need to protect minorities requires no argument. The only solution is, of course, to entrust it to an independent authority, in no way dependent on majority opinion. As the President of the French Conseil constitutionnel, Laurent Fabius, recently reminded us when commenting on its decision regarding the immigration law: "We have not been guided by public opinion... Otherwise, we'd have to put the director of Sofres (a polling company) at the head of the Constitutional Council."
- Perhaps less intuitive is the importance of independent judges and authorities against the short-termism of the majority and their political representatives. Take the example of "expropriating" foreign investors. We can tax foreign companies more, or pass biased judgments in disputes concerning them, once they have made non-recoverable investments in our country; we can repudiate public debt when it is held abroad. In the short term, and forgetting all ethical considerations (the "sanctity of contracts"), expropriation benefits the people; in the longer term, the country isolates itself, faces retaliatory measures, and may even get used to easy money; it simply compromises its future.
All too often, populists fuel our propensity for short-termism. Conversely, institutions such as, in France, the Cour des Comptes, the Conseil d'Etat and the Conseil Constitutionnel[1] are the last bulwarks against such demagoguery. And it is precisely the presence of these independent authorities that makes foreign investors trust our country.
The demand for more democracy
So are the many calls for deliberative democracy ill-considered? The current rejection of politics begs the question, and the prospect of reasoned, respectful debate between citizens is appealing. Intellectual exchange on topical issues would strengthen democracy and ward off conspiracy theories. But it needs to be well organized.
- The purely deliberative. It's worth noting that governments, whether French or foreign, have not waited for citizens' conventions or deliberative commissions to gather the opinions and feelings of their citizens. Public hearings are a basic mechanism of administrative practice, complementing expert reports, so that recriminations such as "They don't listen to us" can sometimes be translated into "We didn't get our way", which is quite different. Listening is obviously crucial and can undoubtedly be reinforced.
However, such institutions should remain deliberative, not decision-making, and should not replace Parliament. First of all, it's difficult to have a representative commission, even if its members are chosen by lot. Effective participation requires long weekends of exchange and deliberations, perhaps in another city, and substantial additional reading; no doubt those who take on this responsibility will be more inclined to accept the sacrifice if they have a bone to gnaw (and are therefore not representative), all the more so as the body is only consultative. Secondly, the choice of chair and qualified personalities is decisive, as they will play an important role in ensuring that convention members have access to information. Finally, and the French Citizens' Climate Convention (2020) is a good counter-example, participants need to envision a realistic environment. The National Assembly is subject to a budgetary exercise; any proposed measure must be costed and financed by a tax increase, a reduction in public services or social transfers. This is not generally the case with citizen conventions, with the risk that recommendations will be limited to a more or less consensual wish list, which plenty of unfinanced subsidies.
- Decision-making. In contrast with citizen conventions, and subject to constitutionality checks, referendums bypass the legislature and the executive to "give" decision-making power to the people. Referendums are often initiated by the powers that be, or even by a statesman seeking personal power; alternatively, they may be generated by a popular initiative following a petition. In all cases, the ease with which the outcome can be affected by the wording of the question and the choice of timing, and the reasons already given why the people should not always be sovereign, suggest proceeding with caution.
Some decisions are better suited to a referendum than others. Firstly, depending on the technicality and information available to citizens: a referendum on highly technical, scientific or economic subjects is unwise (especially in the current anti-science climate!). Secondly, the exact question must be controlled by a competent and independent authority, as is the case today with the control of conformity with the Constitution, which notably protects minorities. Finally, the relevance of a referendum depends on the will to ask a precise, unambiguous question, and not a vague, ambiguous one that opens the door to plebiscitary democracy and populism.
Then there's the thousand-euro question: how did Switzerland manage to make acceptable use of referendums? It voted "no" to many demagogic proposals (though not always, as shown by the 2009 vote against the construction of minarets and the 2014 vote on residence permits for foreigners, which ran counter to agreements between Switzerland and the European Union). Is there a chicken-and-egg problem? Have the Swiss shown themselves to be mature because they are trusted, or have they been trusted because they have shown themselves worthy? Returning to the question of the depth of personal reflection, what part can be attributed to the organization of these referendums and the consultation that preceded them? So, while we shouldn't make too rigid an equation between referendums and populism, let's avoid cookie-cutter formulas and imagined nostalgia for true democracy. By pretending to ignore the fact that the devil is in the detail, it is the appeal to the people that represents the real coup d'état.
[1] General Accounting Office, Council of State and Constitutional Council.
Article published on February 10, 2024 in L'Obs
Picture comes from: https://www.elections.interieur.gouv.fr/comprendre-elections/pourquoi-je-vote/institutions-democratiques, consulted on February 15, 2024.
