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

by Harvard International Law Journal

[David Schleicher, author of What If Europe Held an Election and No One Cared?, responds to Erin F. Delaney and Samuel Issacharoff]

I would like to again thank Erin Delaney and Samuel Issacharoff for their kind if skeptical response to my paper. Their praise is particularly appreciated as Professor Issacharoff’s brilliant work on election law has been, and remains, an inspiration for my own scholarship. And their criticisms are well taken, even if I disagree with some of them.

They make three basic points, which I’ll address in turn. First, they argue that the European Parliament (EP) is not the only repository of democratic responsiveness in the European Union (EU), and that my claim that pan-European electoral competition in EP elections is necessary for the EU to achieve the balance between elite, national and democratic power called for in its institutional set-up is overstated. Delaney and Issacharoff point to new powers given to national parliaments as evidence that key figures in the EU might not really want – or are least unsure about the value of – real political competition at the European level, and have turned to other tools for solving the democratic deficit. It is certainly true that there are lots of forms of democratic engagement inside the ever-more complicated EU policy-making apparatus. So there is something to this point. However, EU treaties have continuously increased the power of the EP, and the rise of the EP, along with the introduction of qualified majority voting in the Council, have been the two most important institutional changes in the EU over the last 20 or so years. In light of this, European interest in making the EP work should not be understated either. And for the EP to play its institutional role, it has to provide a mechanism for voters to provide direct feedback at the EU level, which pretty much requires party competition at the EU level or the development of differentiated party brands on EU issues. (Or as E.E. Schattschneider put it, “modern democracy is unthinkable save for parties.”) If the EU is committed to the EP – and it seems to be – its leaders at least should consider legal changes that would make its institutional commitment work.

However, Delaney and Issacharoff may be right that there is little appetite for proposals radically revising the terms of EU politics or reducing the power of national parliaments or politics. But my proposal – unlike, say, Simon Hix’s fascinating but more radical argument for having all EU institutions become the subject of pan-European political competition – is not inconsistent with a desire to maintain a role for domestic parliaments in the EU. The goal behind adding a distribution requirement to EP elections is to separate the party system that functions in these elections from ordinary national elections. If it works – more on this in a minute – it would create a political system that fits the institutional structure called for in the EU treaties, where power is divided between European and national entities. The idea is to tailor the form electoral competition takes to the commitments already made in the EU’s current institutional arrangements. But it certainly would be an experiment with costs and risks, so I can understand skepticism, either on Delaney and Issacharoff’s part or on the part of European policy-makers.

Second, Delaney and Issacharoff argue that it is the EP’s lack of power and particularly its inability to initiate legislation that has rendered the EP too unimportant for voters to care about. In their choice phrase, the “Parliament is boring by design,” and thus changes in election laws may be ineffective in making EP campaigns truly about EU politics. I’m unconvinced by this. If voter interest in the EP depended on the power of the institution, the very large increases in power that the EP has seen over the last 30 years should have had at least some marginal effect in increasing voter engagement. However, despite radical changes in the institution, voters in EP elections ignored EU issues just as much in 2009 as they did in 1979. It is possible that another change – like giving it the power to propose legislation as opposed to just the power to amend or reject legislation – might be the crucial factor for getting voters to care. But I don’t think so. Rather than looking at the institutional set-up, the election law system seems like a far more important variable in making voters use EP elections to comment directly on EU policy. (Further, given the vast increases in power the EP has seen, I’m not sure that the decision by EU leaders to not yet give it the power to initiate legislation should be read as a sign of hesitation about their commitment to the EP or their belief that European elections provide at least part of the answer to the democratic deficit.)

Delaney and Issacharoff’s final point is that – following Habermas and others – the lack of a pan-European “demos” will make any effort to encourage pan-European political parties, or even competition on EU policies, difficult or impossible. This is a major challenge, and not one that is easily overcome. However, electoral engineering, and distribution requirements in particular, can be quite powerful, effectively requiring competition to take place at the national (or in this case, supra-national) level. And distribution requirements have had successes in places where the existence of a demos is, at the very least, questionable, like post-Biafran War Nigeria. But Issacharoff and Delaney are certainly right that it by no means is a sure thing that a formal change like the distribution requirement I suggest will have an effect on the ground in a divided Europe. Even if I’m wrong, I think my proposal would have good effects, like limiting beggar-thy-neighbor national campaigning, and would provide informational content to some voters. But, when they say, “don’t expect overnight success,” I suppose my response is that I would be happy – and I think the EU should be happy – with any success at all on this front.

At any rate, thanks to Sam and Erin, to the Harvard International Law Journal, and to Opinio Juris. It’s been fun!

http://opiniojuris.org/2011/02/08/hilj_schleicher-responds-to-delaney-issacharoff/

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