A Response to David Schleicher by Erin F. Delaney and Samuel Issacharoff

by Harvard International Law Journal

[Erin F. Delaney, a Research Fellow at Columbia Law School (she holds a Ph.D. from Cambridge University and a J.D. from the NYU School of Law), & Samuel Issacharoff, the Reiss Professor of Constitutional Law at New York University School of Law, respond to David Schleicher, What If Europe Held an Election and No One Cared?]

Eurodemocracy

Multilevel democracy is difficult. Voters have limited time and even less information. Political parties provide the indispensable integrative mechanism for the polity and bring order to the chaotic political marketplace. But parties form around core political concerns, and national parties translate poorly across different levels of government. In this article, David Schleicher turns to the European Union and perceptively analyzes the failure to generate meaningful Europe-wide political parties and campaigns as symptomatic of many forms of multilevel democracy, and thus perhaps less distinctly European. He takes the analytic framework he honed with regard to the absence of robust partisan competition at the local level and directs it now to political institutions that pale beside vigorous national-level politics – specifically, the European Parliament, an institution which inspires mostly apathy and neglect in European voters. The result is a proposal to jigger the institutional prerequisites for EP representation in order to incentivize cross-European political organization and politics.

What emerges is creative and provocative. Certainly politics responds to the institutional incentives presented. The now vestigial American electoral college stimulated the emergence of national as opposed to sectional political parties precisely because of the need to win across the national stage, not just win numerical landslides in the North or the South. If Europe wishes to narrow its perceived democratic deficit, it should provide incentives for politicians to seek Europe-wide support. Conditioning representation on cross-national thresholds, a variant of qualified majorities, alters the incentives and should prompt parties to retool as organizers of EU-wide politics. With the parties forced to thus appeal to voters, presumably the voters should begin to see themselves as significantly a part of a continental polity.

Maybe. While we applaud Schleicher’s elegant proposal and think it properly introduces the structural dimension to the debates over European democracy, we present two reservations. First, we are uncertain that Schleicher quite captures the institutional structure of the EP and the presumed commitment to a continental Parliament. Second, we fear the European political will may prove to be a more contested concept than simple incentive reforms can address.

Schleicher is certainly correct that the EP’s power has been slowly but consistently increased over time, and that the Lisbon Treaty has greatly expanded the areas over which the Parliament has say through the “ordinary legislative procedure.” The role of the EP remains, however, primarily that of a responsive body, able to suggest amendments to Commission-proposed legislation and to delay or frustrate the enactment of law. Initiating legislation remains the purview of the Commission, though Parliament can and does request that legislation be presented. But the fact that Parliament cannot take an affirmative role in creating new legislation necessarily dampens voter interest. It’s not just that the parties have failed to stimulate political attention; a reactive Parliament is boring by design.

The EP adds a democratic voice to the cacophony of elite and technocratic EU institutions, and the rhetoric lauding its purpose and role is powerful. But Schleicher may overstate the extent to which the direct election of the EP represents the exclusive strategy for closing the EU’s perceived democratic deficit. The direct election of the EP is paired with a commitment to the integration of national parliaments – as democratic checks – into the European system. Democratic accountability does not come in only one form, and the EU has also defined itself in terms of the participatory power of the national constituencies. The Protocol on the Role of National Parliaments in the Lisbon Treaty is designed to “encourage greater involvement of national parliaments” and “to enhance their ability to express their views on draft legislative acts” of the EU. The system requires draft legislation, and even initiative-requests from other bodies, including the European Parliament, to be sent to national parliaments for consideration. If a sufficient number of national parliaments find the draft legislative act to violate the Union principles of subsidiarity and proportionality, they can force the Act to be reviewed and justified by the Commission. This significant albeit limited power granted to national parliaments is indicative of the tension within the EU: a desire for both a strong supranational democratic body and a set of involved democratic institutions at the nation-state level. The pressure for nation-state involvement, in the guise of national parliaments, may serve to complicate Schleicher’s story about the ability of reformed incentives to transform national political parties into proto-Europarties.

More fundamentally, there may be a deeper chasm between the subordinate role of local parties in the U.S. and continental parties in Europe. American local elections exist within a well-defined American political enterprise. Whatever the problem of stimulating party competition at the local level, the forces working against the incentives Schleicher proposes are much greater in the European context. For many EU observers, including such leading figures as Dieter Grimm, Jurgen Habermas, and Joseph Weiler, the problem of the EU democratic deficit draws from the central paradox of the attempt to forge a democracy without a demos. The absence of a shared political culture raises the barriers to effective EU-wide political campaigns. The EU has about as many languages as it does nations. And despite the EU’s efforts to support common media outlets and encourage transnational media taking a European perspective, the results have been poor. Furthermore, though elite culture is multilingual, well traveled and cosmopolitan, real politics includes those for whom the EU is primarily a threat to national identity and a local way of life. As was reflected in the referendum votes on the European Constitution, there is not a grassroots commitment to the European enterprise.

The European Union has transformed postwar European society and has become a global economic power. As a set of powerful institutions, its continued legitimacy may well depend on its democratic accountability. Schleicher’s article grounds the lofty aspirations for the democratic engagement with the EP in a concrete set of institutional incentives that may help promote a new European conception of politics. This is all to the good, and the proposal should further that ambition. But don’t expect overnight success.

http://opiniojuris.org/2011/02/08/hilj_delaney-issacharoff-response-to-schleicher-2/

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