Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Sunday, October 04, 2009

What the Irish "Yes" on Lisbon in do over vote means

Yesterday, the Irish Republic held a second referendum on the Lisbon Treaty. (If you don't trust the EU to be objective about the treaty, check out the wiki site here.) Last time, they had a referendum on this Treaty, the Irish voted "No" (53.4% against). This time they voted "Yes" by a HUGE margin (67% in favor). The Czech Republic and Poland have yet to ratify but won't be doing so by referendum so their eventual ratification can be expected to be smoother. So this vote means the Lisbon Treaty is likely to be the law of the EU sooner rather than later.

The Lisbon Treaty is designed to implement many of the institutional changes (changes in the application of voting rules, changes in how majorities are measured in the Council of Ministers, new positions for foreign policy spokesperson and new "President of the EU" who will be largely a figure head) that were included in the now failed Constitutional Treaty. The best feature of this treaty, in my view, is that it will codify a new means of determining a majority vote in the Council of Ministers. In the past, majorities of various types in the Council were calculated by a system of weighted votes with each country's weight in the Council carefully negotiated to produce an acceptable (to the national governments) balance of influence among the various member states. This is all well and good but it required extensive renegotiations of the decision making rules every time a new member state joined. And it could potentially require renegotiation as political, economic and demographic conditions in the various member state change (remember that the Eastern Member States are changing very rapidly right now). Imagine if the US had to rewrite Articles 1 and 2 of the Constitution every time a new state joined or the demographics in the country shifted.

The new method will be based on the number of governments voting together and the percentage of the EU population they represent. This updates itself automatically so this new method can become a permanent fixture. This alone is a huge improvement over the status quo and should have argued forcefully for the treaty's ratification.

The creation of the "President of the EU" and the "Representative for Foreign Affairs" are largely ceremonial. Neither will have much in the way of real political influence. But these features are what are drawing much of the anti-Treaty attention. The Foreign Affairs rep in particular would be allow to propose foreign policy missions but these would only be approved through unanimous vote of the Council so such proposal power isn't likely to be much beyond a media event that could start a debate but not - in of itself - constrain any member state government.


constant gina said...

The EU requires a birth certificate

Raised By Republicans said...

Well, I'd say it's fair to call the Treaty of Rome the EU's birth certificate. What it's getting from the Lisbon Treaty is a drivers' license.

The Law Talking Guy said...

At some point, the EU will have to allow a democratically elected executive (at least as democratic as the US does...) with real power, plus allow many more important decisions to be made by majority vote, not consensus.

Raised By Republicans said...

Well, they do. Laws are implemented by the member states themselves and the national executives are subject to elections.

The Commission is not elected but it does not have power to implement laws. Indeed, only a few thousand people work for the Commission (I think it's between 10 and 20 thousand and probably closer to 10). Large cities employ about the same number of people. It's almost certain that the government of Sweden employs more people than the EU's Commission. The point is that not only does the Commission not have the authority to act as the EU's executive branch, it doesn't have the ability to do so even if it wanted to assume that power without the technical authority.

There is a lot of carping about the democratic deficit in the EU but I think it is really overblown. Both the main legislative branches of the EU, the European Parliament and the Council of Ministers, are democratically elected. And the EU is primarily a legislative/regulatory entity rather than an executive one.

As for the increasing reliance on majority or qualified majority in the Council instead of unanimity, that is already occurring. Indeed, the Lisbon Treaty expands the use of qualified majority voting in the Council. Unanimity is still used for things of particular national importance with regard to sovereignty. The big ones are foreign and security policy and the Common Agricultural Policy (which French governments famously insist on not reforming while also abusing it to their own benefit).

The Law Talking Guy said...

I don't think you can really claim that the EU has a democratically-elected executive, then point to the national governments. The executive is not just about implementation, of course, but about the power to propose and set the agenda. It means, in short, a person with real power.

Raised By Republicans said...

LTG, I think that's a misunderstanding of the nature of executive power. What you are talking about is legislative power not executive power. The executive branch is that branch which implements policies. The president of the United States has extremely limited legislative roles (none of which by the way involve the ability to propose new laws).

I do think it is 100% fair to talk about the national governments as the executive branches of the EU.

One MIGHT claim that the Commission is the executive branch but this over states the Commission's executive authority dramatically. What the Commission really does is write the initial drafts of legislation which are then amended (often beyond recognition) by the EP and Council.

The Commission DOES have some indirect executive authority in that they act as prosecutor when member state governments are taken to the European Court of Justice for failing to implement EU laws. But I don't think that's really what you were talking about when you meant executive.

If you meant - as you say in the second email - that "executive" means the ability to propose laws then the European Parliament and the Council of Ministers both share that power now and both of them are elected. If you meant as I originally assumed that executive power is the power to implement policy, then the Member State governments are the primary implementers of EU law and they are all elected.

Raised By Republicans said...

I should ad that the Commission does directly implement a small subset of EU policies but this a far small role than that played by the national governments.

It is also quite common for the EU itself or European politicians to refer to the Commission as "the executive" but this is really quite misleading.

Consider this: The Commission has 25,000 employees (according to wikipedia). That's 25,000 civil servants to supposedly staff the entire executive branch of a government that governs over 300 million people. By comparison there are over 3 million federal employees in the United States (governing a similar population).

The Law Talking Guy said...

I really disagree, RBR, with your characterization of executive and legislative power. I certainly do not misunderstand it. I fear you do. In your very textbook description, the executive is merely an implementer, not a policymaker. But that's not how executives act anywhere, because that's not why you create a president in a constitutional system. They don't just follow the will of the legislature - they try to direct it by going to the public and by other means. The executive power, as Hamilton and Madison conceived it, was not a bureaucratic council of some kind.

I actually can't think of a single system with a separate executive where the executive merely takes direction from the legislature.

I really wonder - would you think that a president running a campaign about policy is entirely a fiction, because the president merely takes direction from the legislature? I'm sure you don't think that.

I guess I'm a bit surprised by a Lockean formalism because you know exactly what I mean. The EU needs a real executive - a president or other head of state - who can set the agenda and be elected on an EU-wide basis.

Raised By Republicans said...

Actually, you are treading on my particular area of expertise. If you talk about executive vs legislative POWER then I will not budge on my definition. You should also be aware that executive power to implement is far more important that simply doing what you are told. Enormous practical changes to the way laws are applied and enforced are within the power of a executive branch depending on the degree of its autonomy from interference by the legislature.

But I can now see that you are talking about two entirely different issues than executive vs legislative power. You are talking the existence of a directly elected head of state combined in the same office with a head of government. In other words you are arguing that the EU should be a Presidential system (along the lines of the USA) rather than a Parliamentary one (like every one of its member states has).

I will also point out that you are setting up a straw man version of what I actually said when you say "I actually can't think of a single system with a separate executive where the executive merely takes direction from the legislature." I pointed out that the President of the US has some - albeit limited - legislative power (in the form of a veto).

What you are talking about now is not the nature of executive power vs. legislative power (on which I am 100% correct) but the existence of a separately elected head of state/government. That's a different issue.

If you think that the EU needs a single head of state then I think that is a debatable. A lot of countries have none in the sense you mean. Most European parliamentary systems have heads
of state (monarchs) with zero ability to interfere in politics in any formal sense and extremely limited ability even in the most informal sense. I don't think that having a directly elected President with a mix of legislative and executive power who would also act as an EU head of state is necessary.

I know what you mean now but that is NOT what you said before. So please stop trying to insult me.

Now, when you say "set the agenda" do you mean that in the sense that this head of state you propose needs to have a formal power to propose legislation or the use of what Teddy Roosevelt called his "bully pulpit." I suspect you mean the latter.

Working on the assumption that you mean to argue that the EU needs a single person with such a "bully pulpit" I'm agnostic on that. I don't know that the EU really needs such an office to function. Right now, it has many - any politician with a continental profile can do this now. Really the PM of any of the larger member states can start off a massive debate through the use of their own "bully pulpits." Presumably, you mean to assert that having many people with this ability is less desirable than a single person.

Can you explain what benefit to the EU's function you see in the election of a head of state with a bully pulpit and some combination of executive and legislative power? Why would this be preferable to a parliamentary model or a collective executive (like the Council) that is separate from the head of state?

Raised By Republicans said...

BTW, France is a partial exception to the universality of parliamentary systems in the EU. France has a hybrid system that usually functions very much more like a parliamentary than a presidential system.