Pigs’ Dinners and Rolling Pins – the Constitutional Court Verdict on the Electoral System Referendum

Over the last week there was a crescendo of rumour and counter-rumour on the Constitutional Court’s likely verdict on whether to allow two referendums to change the Italian electoral system. The referendums were to be another moment in process of changing the whole political system. Now the Court has spoken and the answer is No. We will know the precise legal reasoning in a fortnight when they publish the sentence but in the meantime the political consequences are already being faced.

Supporters of the referendum like Antonio Di Pietro have already cried foul accusing the Court of killing Italian democracy and suggesting that the verdict was a favour to President Napolitano. Napolitano responded rapidly and curtly saying that any connection between the Court and the President was “a vulgar insinuation”. The debate on whether and how to change the present law will start now.

Electoral systems are normally less than controversial but the way the Italians elect their Parliament has generated much heat since it was passed in 2005. As the second Berlusconi government moved towards the end of its mandate due in spring 2006, it changed the existing mixed system (three quarters single member constituencies, one quarter fixed party lists) to one which was all fixed party lists and with a premium for the majority party or coalition. It was a thinly veiled attempt to hold onto power and it almost worked.

The old law was nicknamed “Mattarellum” after its proposer, Sergio Mattarella (and mattarello means rolling pin). The new one was dubbed “porcata” or pigs’ mess by its proposer, Roberto Calderoli, giving an idea of how much its own supporters supported it. This was immediately rendered into dog-Latin by Giovanni Sartori as “Porcellum”.

In practice, the Porcellum allows party leaders to decide who will be elected and who will not. Election depends on a candidate’s rank on the list not on any link with electors. As a voter, I have no say in who is elected – I might prefer Party A but not like their candidate X but I cannot vote for candidate Y. When there is a well running party organisation, then the party debates and bickers over the order and the system works tolerably well as in Israel though even there, there are complaints. In Italy where most of the parties have a weak organisation and are heavily dependent on the single leader (not just Berlusconi), the Porcellum means that each deputy is responsible to and dependent on the leader rather than the voters.

Then there is the premium. To give a winning party a premium (a higher proportion of seats than votes polled) is not such a bad idea if all accept the way the premium is given out. It allows the winner to actually govern without having to worry about a single missing deputies. All but the Lib.Dems in Britain accept that 40-45% of the vote will normally give a party 60% of the seats in the Commons – not mathematically fair but legitimated by habit. In Italy there had been half a century of proportional representation and the only attempt to change it, in 1953 was called the “swindle law” or legge truffa. So Italians are less happy about premiums.

Hence the campaign last year to gather half a million signatures to repeal the Porcellum. Instead of the minimum 500,000 Di Pietro and the organisers took 1.2 million, a very strong signal that a lot of Italians were fed up with politicians.

Those signatures were verified by the High Court and then it was up to the Constitutional Court to decide whether the referendums are legitimate. We will know for certain in two weeks but it is likely that they turned down the referendum because of the risk of having a legislative vacuum if the Porcellum was repealed. Ie there would be no law instead of reverting to the old one. They did not accept that the Mattarellum would come back into force.

Politically this is a relief for some and infuriating for others. All parties say that there must be a new law and the Constitutional Court is likely to recommend that the law be changed, but no one agrees on what exactly should replace the Porcellum. And we know that it is always easier to do nothing than to do something, especially when we can’t agree on what something to do.

No one will admit it, but of course a system which gives all power to political leaders and none to candidates and voters is attractive to the leaders, the so-called casta or caste.

We have already some fiery statements from Di Pietro and will have many more. From the other politicians and parties, there are earnest calls for dialogue and everyone will put forward worthy proposals but without the risk of having to fight a referendum campaign next spring, the heat is off. Prime Minister Monti has made it very clear that electoral reform is definitely not on his agenda so that there is even a chance that Italians will once again have a pigs’ dinner once again for their 2013 general election unless popular pressure can persuade the politicians to act quickly.