Theme Four: Existing constitutional responses to oligarchic democracy.
The purpose of this thematic enquiry to examine what constitutional responses to oligarchic democracy exist currently and to what extent, if any, these constitutional responses are effective. The constitution for these purposes is defined as a written legal and political text that is a paramount source of law, can by changed only by a higher law-making procedure that is more rigid than ordinary statute law and that organizes institutions, distributes powers, defines rights, and proclaims the identity and purposes of the state.
As a preliminary scoping enquiry, we have examined seven constitutional texts: Kenya, Ecuador, Bolivia, South Africa, Ireland, India, and Mexico. The choice of these particular seven constitutions stems from their transformative intent; these are either post-colonial constitutions (Ireland, India), revolutionary constitutions intended to establish a new and more democratic political order (Mexico, Kenya, South Africa) or constitutions emerging from neo-populist rejections of neo-liberalism (Ecuador, Bolivia). The purpose of this initial survey was simply to identify existing constitutional provisions that are potentially relevant to anti-oligarchic constitutionalism, in the sense that their effective inclusion in the constitution may either strengthen the power, voice and inclusion of the non-rich or restrain the rich in their ability to dominate the state.
Firstly, there are provisions relating to voting rights and ballot access. In some countries, difficulties in voting or in voter registration may disproportionately disadvantage the poor. Voting turnout is generally less in lower income groups. Constitutional provisions such as an explicit right to vote (which may prevent, for example, the systematic disenfranchisement of former felons), automatic voter registration rules, and compulsory voting may help to empower those who might otherwise be excluded. Likewise, provisions which ensure that polling places are easily accessible even to those who do not have their own transport, and that election days are public holidays, may help to encourage poorer citizens to vote.
Secondly, there are provisions relating to the funding of political parties and election campaigns. These include spending limits, public funding for political parties, restrictions on donations, transparency and disclosure provisions, restrictions on ‘soft’ spending, and rules on the internal democracy and auditing of political parties. Such rules may limit the extent to which rich donors can determine election results and indirectly influence the policy-choices of incumbents. While many of these rules exist, and will be discussed, under the fourth thematic heading, the role of formal constitutional entrenchment cannot be ignored. In the USA, for example, the lack of constitutional provisions as made it easier for the Supreme Court to attack legislation designed to reduce the power of the rich and augment that of the non-rich:
‘The thrust of recent Supreme Court decisions in cases such as Citizens United, Arizona Free Enterprise, and McCutcheon v. FEC has been the wholesale rejection of statutory efforts to in any way equalize political influence – among donors, among candidates, among citizens.’ (Fishkin & Forbath, 2014: 696.)
Thirdly, there are provisions regulating the use of media for political campaigning. Disproportionate access to the media, driven by market forces, can be an important source of power for the rich. Some constitutions seek to counteract this by the provision of impartial public service broadcasting services, or by restrictions on the use of the broadcast media for electoral purposes. The Kenyan Constitution for example provides parties with access to the media, requiring Parliament to enact laws for the ‘the reasonable and equitable allocation of airtime, by State owned and other mentioned categories of broadcasting media, to political parties either generally or during election campaigns’ (Article 92). The Mexican Constitution likewise directly addresses the electoral process: ‘No private individual or legal entity can buy airtime on television or radio to influence political preference, or to promote or attack certain candidate or party.’ (Article 41). Such provisions should in principle moderate oligarchic power by ensuring that poorer, weaker parties can still be heard by the general public.
Fourthly, constitutions may contain provisions intended to prevent incumbents (who may be presumed to mostly be drawn from the relatively rich) from pursuing goals that are contrary to the public interest, and from abusing their power for their own benefit. Such provisions could include bans on commercial activity while in office, mandatory disclosure of financial assets or liabilities, or ‘revolving door’ provisions that prohibit the circulation of the same persons between the commercial and political spheres. For example, the Indian, Bolivian, and South African constitutions all place restrictions on the ability to be elected to public office if one has commercial stakes in State business. Constitutions may also include provisions aimed at preventing abuses of power, such as general anti-corruption measures, auditing of public offices, or penalties for abuse of power or official immunity. General anti-corruption measures, auditing provisions, and penalties for abuse of immunity may also be considered under this heading, although the precise relationship between measures intendent to reduce corruption generally and those targeted at reducing the influence of oligarchic power in particular remains to be seen.
Fifthly, we find provisions for direct democracy in many current constitutions. In principle, direct democratic institutions – referendums and initiatives – have the potential to empower ordinary citizens and reclaim decision-making from elites, including economic elites. However, in practice, they can be used by elites to further their own interest: not mitigating oligarchy, but simply making it more populist in tone. The state of California serves as a good example. In California, citizen initiatives and referendums are constitutionalized direct democracy processes; Californian citizens can both initiate legislation and vote on proposed legislation through public referendums. However, many citizens feel that the legislation passed through these methods reflects the will of special interests rather than that of the average citizen. A perceived cause of special interest influence relates to signature gathering. As special interests have better access to funds, these groups are capable of paying persons to gather signatures for so-called citizen initiatives. In contrast, non-elite groups often lack the resources to gather enough signatures within enough time to put an issue on the ballot. The intricate details of direct democracy mechanisms (who can call referendums, when, on which subjects, under what safeguards and protections, who sets the question, how are they funded, how is campaigning organised, whether they are advisory or binding), may be crucial in determining the effectiveness of these mechanisms from an anti-oligarchic perspective.
Sixthly, some constitutions provide for mechanisms of ‘functional’ representation, by which the economic interests of society (and perhaps various non-economic civil society interests) are included in the representative and decision-making processes. Such bodies are largely a product of Catholic political thought, and were found – either constitutionally or on a sub- or para- constitutional level – in several European countries that were influenced by Catholic thought or in which Christian Democratic parties were electorally dominant: the composition of the Irish Senate, the French ‘Economic and Social Council’, created by the Constitution of the Fourth Republic in 1946, and the Italian ‘National Council for Economics and Labour’, created by the Constitution of the 1947, as well as similar institutions in the Netherlands and elsewhere. These bodies give trade unions and other economic interests a guaranteed, institutionalised voice in decisions concerning economic and social affairs, mainly in the form of a consultative role in legislation. In principle, this should have an anti-oligarchic potential, in the sense of preventing business and financial interests from dominating the policy-making process unchallenged by representatives of workers. However, we are interested in papers critically examining the effectiveness of these bodies in practice, particularly evaluating them from an anti-oligarchic perspective and considering, where they are weak or ineffective, means by which they could perhaps be strengthened.
During the pilot study, we identified interesting institutions in Ecuador, in the form of the Council for Public Participation and Social Control (CPPSC), and in Mexico in the form of the National Council for the Social Development Policy (CONEVAL). These are different from the institutions of functional representation discussed above in that they have a smaller, appointed, more technocratic membership – more akin, perhaps, to a ‘Fourth Branch’ institution. Ecuador’s CPPSC has a very wide remit, with the authority to ‘promote public participation, encourage public deliberation processes and foster citizenship training, values, transparency, and the fight against corruption’, an anti-corruption oversight function, an ombudsman-like function in investigating state actions, and a role in the selection and appointment of certain important public officials, including members of the Attorney-General’s Office, National Electoral Council, the Electoral Dispute Settlement Court, and the Judiciary Council (Constitution of Ecuador, Arts. 207-208). While portrayed as a mechanism for encouraging public participation – and so, presumably, of allowing the non-rich majority to have a greater influence on public policy – the real effect of the CPPSC may be limited by the presidential dominance built into the Ecuadorian system of government. [1]
In contrast, the Mexican CONEVAL has a narrower remit. Its principal function is to monitor the performance of the state, specifically in terms of the measurement of poverty and ‘the evaluation of programs, objectives, goals, actions of the policies related to social development’, in order to provide the general public with a reliable and robust source of information. The Independent Evaluation Group (IEG) argues that CONEVAL has been effective in increasing transparency with regards to poverty estimation and social program evaluation. It may be a promising example of an anti-oligarchic institution which by empowering citizens with knowledge, and by monitoring outcomes in a systematic way, induces the government to be more attentive to the needs of the non-rich and poor. This is just one, however, of a series of monitoring and transparency institutions established by the Mexican Constitution – which also includes the National Transparency Agency, the National Hydrocarbons Commission, the Energy Regulatory Commission, the Federal Economic Competition Commission, the National Electoral Institute, the National Commission for Human Rights, the Citizen Participation Committee of the National Anticorruption System, and the Commission for Conciliation and Arbitration, composed of an equal number of workers and employers (which shall mediate disputes between these groups). In placing such reliance on these specialist commissions, the Mexican Constitutions seems to reveal a very low level of trust in elected institutions to carry out the functions of monitoring and policy scrutiny. We are interested not only in the Mexican experience, but more generally in the strengths and limitations of this approach from an anti-oligarchic perspective. Do these fourth branch monitoring institutions provide an additional means for controlling and limiting the power of the rich, and in forcing the state to pay attention to the wants and needs of the non-rich? Or do they simply perpetuate oligarchic rule, or even worsen it because power shifts away from elected into the hands of unelected institutions?
Seventhly, constitutions may seek to encourage participation from marginalized socio-economic groups by means of quotas or the reservation of seats. We are familiar with such techniques in respect of gender, but using them expressly for economically excluded groups – and in particular the non-rich majority – would be something of an innovation. Nevertheless, we can see living examples of similar provisions in the case of the Indian Constitution, which reserves seats for ‘Scheduled Castes and Tribes’. These are sections of society who have traditionally been marginalized, both by social stigma and by poverty. There is of course an on-going debate about the rational for these reservations, their effects, and whether they actually empower and protect the marginalized or whether they simply allow a small minority from those marginalized groups to rise to the elite – the so called ‘creamy layer’ problem (Tushnet, 2004).[2] Of greater interest for our purposes, however, is the question of whether similar types of provisions could be adopted specifically addressing the economic dimension of representation: for example, if 99% of the population are non-millionaires, should 99% of parliamentary seats be reserved for candidates who are not millionaires? What would be the theoretical arguments surrounding such a scheme, what would be the practical challenges to be overcome in adopting it, and what would the likely effects be?
Another consideration is whether the overall shape of the constitution makes a difference to the susceptibility of a polity to oligarchic capture, or, conversely, whether certain institutional structures make it easier for popular movements to wrestle control away from oligarchs. It may reasonably be hypothesized that unitary states, unicameral parliaments, parliamentary systems, and above all proportional electoral systems, might provide greater resilience to oligarchy (because of fewer opportunities for oligarchic spoilers) and more opportunities for responsive, inclusive and joined-up government than those which are federal, bicameral, presidential and majoritarian. This links back to the point about radical constitutional traditions discussed in Theme Two.
This list is not exhaustive. We have focused only on those aspects of the constitution that concern the representative-participatory-decisional aspects (what might be regarded as the ‘political constitution’), as opposed to those aspects of the constitution that are concerned with substantive rights or distributive outcomes. In this discussion document, we have sought to show that constitutions can and do take various measures to increase the representation, participation and political weight of the non-rich, and to reduce the opportunities by the rich to dominate the political system. However, it seems that such measures are piecemeal and, perhaps, mostly ineffective. Papers critically examining the effect and effectiveness of such constitutional provisions, whether in the countries included in our initial pilot survey or elsewhere, are welcomed, especially if they examine the ways in which the anti-oligarchic potential of such institutions might be increased.
Possible Questions to Consider:
- How effective are the measures taken to protect against oligarchy in existing constitutions? (We welcome papers examining particular institutions in depth as a single case study and those examining sets of similar institutions across countries).
- Does constitutionalising them make a difference, either in securing their legal effect or in raising public awareness?
- Constitutions have also sought to reduce political inequality in respect of gender and, to a lesser extent, ethnicity and disability. Would it be advisable, and desirable, for these measures, such as reserved seats and candidate quotas, to be applied to the non-rich as a class?
- What existing practices, perhaps pioneered in one or a few jurisdictions, could be more widely adopted?
[1] Andrés Martínez Moscoso, A new concept of the separation of powers. The fifth power: Transparency and
Citizen Participation. A new proposal of new Latin American constitutionalism the case of
Ecuador
[2] Mark Tushnet, Interpreting Constitutions Comparatively: Some Cautionary Notes, with Reference to Affirmative Action, 36 CT L. Rev 649, 655 (2004).
Find other thematic areas of investigation:
- Theme One: The nature, extent and consequences of oligarchic democracy.
- Theme Two: Oligarchic democracy in the history and theory of constitutional design.
- Theme Three: Sub-, extra- and para- constitutional responses to oligarchic democracy.
- Theme Four: Existing constitutional responses to oligarchic democracy.
- Theme Five: Potential constitutional responses to oligarchic democracy.