A Professional Assessment of the Governance Bills

On October 1, 2013, in preparation for the renewal of the Knesset's deliberations on the amendments of the governance laws, Prof. Gideon Rahat submitted a professional assessment of the legislation currently under consideration to MK David Rotem, Chairman of the Knesset Constitution, Law and Justice Committee.

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October 1, 2013

To: MK David Rotem
Chairman of the Knesset Constitution, Law and Justice Committee
The Knesset
Jerusalem

RE: Basic Law: The Government (Amendment) (Increasing Governance) and The Election Bill (Amendment No. 61) (Raising the Legal Electoral Threshold and Increasing Governance)

I am writing this letter in preparation for the renewal of the Knesset's deliberations on the amendments of the governance laws and the Constitution Law and Justice Committee's preparation of the proposed legislation for second and third readings. Below you will find the IDI research team's assessment of the various elements included in the two bills, as they are formulated at present, after they passed a first reading in the Knesset.

We believe that the version that is currently under consideration is much better than the original formulations of the bills, since several proposals that we had opposed vehemently have been omitted from the legislation. These include:

1. The provision that required a special majority of 65 MKs to bring down the government by a vote of no-confidence.
2. The provision that required signatures of 61 MKs in order to present a motion of no-confidence.
3. The provision that cancelled public funding for parties that do not have representation in the Knesset, but which received more than 1% of the valid votes.

We believe that most of the provisions in the current versions of the bills—some of which are unchanged from their original formulations while others have been adapted and modified—are appropriate. However, we have reservations about two problematic components related to the legal electoral threshold and to the mechanism of the vote of no confidence, as will be described below.

Provisions that We Support

1. Limiting the Size of the Government
   A previous version of Basic Law: The Government included a limit on the number of ministers and deputy ministers, but that version was repealed in 1999. We welcome the current proposal to reinstate this limit. Reducing the number of ministers and deputy ministers is a welcome and desirable change. This provision will enhance the Government's ability to function and will "free up" coalition MKs to participate in the Knesset's important parliamentary work. It should be noted that over the years, the size of the Government has swollen and reached unprecedented levels. In relative terms (i.e., the number of ministers relative to the total number of members of parliament), Israeli governments are the largest in all established parliamentary democracies. A limit on the number of ministers can be found in the constitutions of other democracies, such as Ireland and Belgium.
2. Reducing the Number of No-Confidence Votes
   We are pleased that the original plan to require signatures of 61 MKs in order to present a motion of no-confidence—a proposal that our research group opposed—has been removed from the current formulation of the bill. The compromise proposal that limits motions of no-confidence to being brought no more than once a month strikes a proper balance between the need to retain the mechanism of no-confidence votes and the desire to reduce the constant stream of such motions, which is unparalleled in other parliamentary democracies and has degraded this most important parliamentary institution. The complimentary proposal, according to which if 61 MKs file a motion of no-confidence the debate will take place within a week of submission, contributes to the creation of an appropriate system of checks and balances between the opposition and the government.
3. Increasing the Sanctions against Splitters (Denying Financial Support for Operating Activities)
   The notion of increasing sanctions on party splits (three types of intensification are included in the proposed legislation) stems from the desire—justified, in our view—to incentivize stability in the factional structure of the Knesset throughout the Knesset term. Withdrawing public funding from a group of MKs who break away from their party is a proportional response and would create a disincentive against such splits.
4. Extending the Time Allowed for Passing the State Budget from 45 to 100 Days
   Today, the law gives the new government that is formed after the elections 45 days to approve the state budget. Experience has shown that this is an insufficient amount of time. Accordingly, the motion to extend the timeframe to 100 days is a worthy proposal. However, we believe that the existing provision in the Law that states that the Knesset will dissolve if the budget is not passed in time is unnecessary. This provision gives a great deal of power to the Knesset and weakens coalition discipline from the start of the third year of the government's term, as the debate of the state budget approaches. In the political climate of the last decade, most governments were forced to agree to early elections as a preventive measure, due to concern that the budget would not pass. This was the main reason why the last four elections (2003, 2006, 2009, and 2013) were held early in the calendar year. Automatic dissolution of the legislature because the budget does not pass is an extreme measure that does not contribute to the stability of the political system.  Moreover, we did not find any other parliamentary democracy that has such an institutional arrangement.

Problematic Provisions

1. Abruptly Raising the Electoral Threshold
   In principle, we are in favor of raising the electoral threshold. Raising the threshold to 3%–4% is likely to lead to the creation of large parties and interparty alliances and would reduce the number of factions in the Knesset. As such, it is likely that such an increase might improve governance. The goal of the change is not to deny representation to minority groups, but to have them represented by larger parties. An electoral threshold of similar magnitude can be found in a number of established democracies with proportional representation similar to that which is found in Israel. These include countries such as Sweden, Norway, Austria, and Spain. At the same time, however, we once more stress that raising the threshold to 4% in "one take" could wipe out minority parties in short order. Therefore, it is necessary to exercise caution and to raise the threshold in a moderate and gradual manner, and not as proposed in the bill. Gradual change is essential to give small parties and their voters time to adapt and respond to the new rules of the game.
2. The Continuation of the Incumbent Government after a Successful Motion of No Confidence
   The current version of the bill changes the current situation, which mandates early elections in the case of a successful vote of no-confidence but a failure in forming an alternative government. According to the current proposal, if an alternative government is not formed, the incumbent government will continue its term despite the no confidence vote. This arrangement is problematic because it establishes the possibility that a government that has been overthrown will remain in power for lack of an alternative. We recommend the adoption of a full constructive vote of no confidence, a mechanism by which a government can only be brought down if an alternative government is presented. The implications of such a mechanism are that a new government would have to be formed before a vote of no confidence, rather than having a period of underhanded negotiations following the vote.

We are pleased to have had this opportunity to express our opinion on this matter based on our research and hope that our input will contribute to the consolidation of Israeli democracy.

Sincerely,

Prof. Gideon Rahat 

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Prof. Gideon Rahat is Research Director of IDI's Political Reform Project and Associate Professor in the Department of Political Science at The Hebrew University of Jerusalem.