Farewell Elections, Hello 35th Government

The strangest and most polarizing election in Israel’s history is now over. The people have spoken, and we’re now entering the next stage of the political lifecycle: forming a new government. Over the coming days, Israel’s President will consult with representatives of all the parties elected to the Knesset, and will decide who to charge with the task of forming the government. This will mark the beginning of a process that will conclude with the swearing in of Israel’s 35th government. What are the rules governing this process, and what can be learned from a historical and comparative perspective?

Knesset | Flash 90

The second 2019 Knesset elections are over. After Netanyahu’s unprecedented failure to form a government, the speedy dissolution of the Knesset, and holding new elections in less than five months, now the political system switches gear, as the process of forming a new government begins. The State of Israel belongs to the family of parliamentary democracies, in which the executive branch (the government) draws its authority from the legislative branch (the parliament), and so-- requires its vote of confidence. Thus, the question of who will serve as head of the executive branch—the prime minister—is not decided directly by the voters (as is the case in presidential regimes, or as occurred during the period of “direct elections” in Israel), but depends instead on a process of bargaining among the various factions elected to parliament. In democracies with “first-past-the-post” electoral systems (such as Canada or Britain), the winning party usually holds an absolute majority in parliament, and thus-- forming a government is relatively simple and quick: the leader of the party with a parliamentary majority forms the government and becomes prime minister. However, in most parliamentary democracies (including Israel), no single party holds most of the seats in parliament, so that the process of forming a government is longer and more complicated. The first stage in this process relates to the decision as to who should be charged with attempting to form the government.

Conferring the Task of Forming the Government

In Israel, the authority to choose who will be charged with forming the government rests with the President. However, the wording of the legislation on this matter is somewhat vague: it does not provide the President with clear guidance on how to perform this important task, leaving considerable room for the President’s own discretion. At the same time, it is clear that the rationale for consulting with representatives of various factions is to help the President identify who has the best chances of forming a government, and charge this individual with the task of doing so. This stems from an approach which seeks to establish a government as quickly as possible, so as to reduce the time period during which the state is in a type of political paralysis. Other factors, such as which faction garnered the highest number of Knesset seats, or which of the candidates for prime minister was given the highest number of “recommendations” by other faction leaders, also influence the President’s decision making, but are not binding.

It is true that, in most cases, the leader of the largest faction will in any case have the best chance of forming a governmentIn fact, the law does not even require the president to place the responsibility for forming the government to the faction leader, though it is difficult to imagine a president choosing to do otherwise. In any case, this lack of clarity was behind Prime Minister Netanyahu’s initiative to amend the Basic Law to limit the president’s freedom of choice in this matter to an MK who is the leader of one of the elected factions (the “Gideon Sa’ar Law”). This initiative was blocked in its early stages., but this is by no means the only possible outcome. In the 2009 elections, Kadima won one seat more than the Likud (28 to 27), but President Shimon Peres conferred the task of forming the government to the head of the Likud, Benjamin Netanyahu, after assessing— in the course of consultations-- that Netanyahu enjoyed the best chance to form a coalition.

A model, which is being advanced by the Israel Democracy Institute, proposes that the head of the largest faction will automatically be declared prime minister, with no need for a vote of confidence from the Knesset. The knowledge that this will be the case will both incentivize the electorate to vote for the larger electoral lists, and incentivize politicians to join such lists, and thus will lead to the formation of two main political blocs, as was the case up until the end of the 1990s.

Coalition Negotiations

Once having being charged with the task of forming a government, there is no guarantee that the Knesset member assigned to the job will indeed succeed in the task. Now, he or she must begin negotiations with potential partners in order to form a coalition that will win the confidence of the Knesset in the investiture vote. Nevertheless, in fact, the Basic Law does not explicitly state that the new government must enjoy the support of an absolute majority of Knesset members. 

In other words, the law allows for the establishment of a minority government, if the relative majority which will support it, is larger than the minority which opposes it. )In such a situation there will inevitably be MKs that will be absent of will abstain from the investiture vote). But historical experience in Israel shows that governments established after elections have always enjoyed the confidence of at least 61 Knesset members and usually - by a far more solid majorities. 

Once the president formally awards the leader of one of the factions the task of forming a government, a 28-day time limit is set for this task to be completed, but if needed he or she may request a 14-day extension. If he or she is unable to form a government after this extension, the ball goes back to the president’s court, who may now ask another Member of Knesset to try to form a government. This time, the allotted time is 28 days, with no possibility of extension. If this MK is also unsuccessful, then a group of 61 Knesset members can ask the president to give the task to a third candidate. In this case, a period of 14 days is granted, after which, if no government has been formed, early elections are announced. The Basic Law also allows the Knesset to vote (with an absolute majority of at least 61) on early elections during the coalition assembly process. This is exactly what happened at the end of last May: After Benjamin Netanyahu, assigned with the task of forming the government, failed, he did not return the mandate to the president in order to block any attempt to transfer the mandate to another MK, and instead pushed for the Knesset’s dissolution and "rerun" elections.

In sum, the law allows four “attempts” for forming a government. However, history tells that in almost cases the leader who got the first chance of forming a government succeeded in the task.

Three exceptions should be noted in this regard:

1. In 1990, after the government of Yitzhak Shamir fell in a vote of no confidence, President Haim Herzog entrusted Shimon Peres with forming a new government. Coalition negotiations failed, and Peres did not succeed in presenting a new government to the Knesset. After this failure, the President charged Shamir with forming the coalition, and Shamir succeeded in establishing a narrow right-wing government.

2. In 2008, after Prime Minister Ehud Olmert submitted his resignation to the President, Tzipi Livni- who was elected to replace Olmert as Kadima's leader-- was tasked with forming a new government. The coalition negotiations failed, and as a result early elections were called.

3. Following the April 2019 elections, Benjamin Netanyahu was given the first chance to form a government. He failed, and initiated the dissolution of the Knesset. It should be noted that in the two previous cases mentioned, it was a government formation during the Knesset's term and not right after elections. In that sense, Netanyahu's failure was a precedent. Never has a candidate nominated by the President with the task of forming a government after elections, failed.

The period of time taken to form a government in Israel has ranged between 20 and 100 days. Compared to other countries, this is not unusually long. Belgium is the record holder: no fewer than 541 days passed between elections in June 2010 and the swearing in of a new government in December 2011. In Germany, the previous national record was broken following the 2017 elections, when it took Angela Merkel 171 days to form her fourth government. In Sweden too, the results of the last elections (in 2018) were inconclusive, making it difficult to create a government, and four and a half months passed before agreement on a new government could be reached.

Figure. Time taken to form governments in Israel (No. of days following elections)

How Many Factions Are Included in the Coalition?

Since the incoming government seeks the confidence of the Knesset, and given that no single party has ever enjoyed an overall majority of seats, all of Israel’s governments have been coalitions. The number of factions included in coalitions formed following elections has ranged over the years, from three to nine.

Table 1 shows the number of factions in each coalition since 1992, and also presents the relative size of the prime minister’s own faction, an indication of the level of control the prime minister has over the coalition. If this percentage is low, the prime minister’s faction is to some degree constrained, and must maneuver between a greater number of coalition partners and pay a higher price to each. This gives the partners greater bargaining power and deals a significant blow to the prime minister’s ability to govern effectively and to maintain a stable coalition.

Table 1. Data on the coalitions formed following elections, 1992–2015

Year	Prime Minister	Factions in the Coalition	MKs in the Coalition	Relative Size of the Prime Minister’s Faction
1992	Rabin	3	62	70%
1996	Netanyahu	6	66	49%
1999	Barak	7	75	35%
2001	Sharon	7	78	24%
2003	Sharon	4	68	56%
2006	Olmert	4	67	43%
2009	Netanyahu	6	74	37%
2013	Netanyahu	4	68	46%
2015	Netanyahu	5	61	49%

Government Appointments: Handing Out Ministerial Positions

Many comparative studies on ministerial appointments in coalition governments have pointed to a principle of proportionality. According to this principle, the distribution of ministerial positions reflects the relative size of each coalition partner, such that the larger partners receive more ministerial positions than the smaller partners. 

In Israel, the principle of proportionality generally holds sway when it comes to coalition partners, but the ruling party does tend to gain a larger number of ministerial positions than its relative size in the coalition would imply.

Table 2. Distribution of ministers in the 33rd and 34th governments

33rd Government (2013)			34th Government (2015)
Faction	Seats	Ministers	Faction	Seats	Ministers
Likud Beitenu	31	13*	Likud	3000%	13
Yesh Atid	19	5	Kulanu	1000%	3
Jewish Home	12	3	Jewish Home	800%	3
Hatnuah	6	2	Shas	700%	2
			United Torah Judaism**	600%	-
Total	68	23	Total	6100%	21

* At the time the government was formed, 12 ministers from Likud Beitenu were appointed. However, the position of Minister of Foreign Affairs was reserved for Avigdor Lieberman, pending the verdict in an ongoing trial against him. After his acquittal, in November 2013, Lieberman was sworn in and joined the government.

** The Ashkenazi ultra-Orthodox parties tend not to assume ministerial positions, instead preferring other senior roles such as deputy minister or head of the Knesset Finance Committee.

The total number of ministers serving in the government has risen considerably over the years (see Figure 2 below). The first government, sworn in in 1949, had only 12 ministers. In all the governments up to 1966 there were no more than 18 ministers. A sharp rise in the number of ministers came with the government formed following the 1969 elections, mainly due to this being a broad coalition comprising the two large electoral lists—the left-wing Alignment faction and the right-wing Gahal faction. This government, which was considered a national unity government, included 24 ministers. The national unity governments of the 1980s also had swollen ranks of ministers.

Figure 2. Number of ministers in Israeli governments formed following elections

* The figure shows the number of ministers in governments formed following elections. The values are for the number of ministers at the time the government was sworn in, up to a week after the swearing-in ceremony (on occasion, ministers were added several days after the formal swearing-in of a new government).

In 2014, an amendment was introduced to the Basic Law: The Government, limiting the number of government ministers to a maximum of 19, including the prime minister. This amendment was intended to prevent the creation of an oversized and cumbersome government and the establishment of new ministries whose real contribution is questionable, resulting in a waste of public funds. Having a large number of ministers also harms the functioning of the Knesset. The greater the number of Knesset members serving in the government, the fewer there are available for the important parliamentary work of serving on committees and overseeing the executive branch.

In practice, one of the first steps taken by the 20th Knesset following its election was to suspend the limitation on the number of ministers. Thus, the government that was sworn in on May 14, 2015 numbered 21 ministers, and at one point reached 23 ministers. It will be interesting to see whether Israel’s elected representatives will once again decide to suspend, or even revoke, the restriction that they themselves authorized five years agoIt should be noted that the “direct elections” law that came into effect in 1996 also imposed a similar restriction. Thus, Netanyahu’s first government numbered just 18 ministers. Three years later, when Ehud Barak was elected prime minister, the Knesset revoked this restriction, and thus Barak was able to appoint many more ministers to his government..