The press is undeniably in favor of the idea of transnational ballots for the European elections, which now also has the backing of one head of State — Emmanuel Macron himself — and of the President of the European commission, Jean-Claude Juncker.
The proposal for transnational ballots was launched some forty years ago by European federalists and would, according to its partisans, have the benefit of reinforcing the European nature of one specific election, that of the European Parliament. The European Parliament continues to have a very national character and has decreasingly attracted the interest and, therefore passion, of European citizens.
Numerous criticisms have already been levied against the proposal of transnational ballots: it creates foreign parliamentarians who are very far from their constituents; it fosters the emergence of first-order parliamentarians (those who are elected transnationally) and second-order parliamentarians (everyone else); the difficulty of establishing it in the first place from the legal and political points of view (including respecting the number of parliamentarians accorded to each State); the selection-election of people who are already elected, or who surely would be under the current system 3.
But in addition to these important criticisms, it is wise to heed French Constitutionalist Olivier Duhamel’s comments on another institutional reform, and view this proposal in a much larger context, i.e. the future of how Europe is configured and the most necessary and urgent reforms that are likely to bring the Union of European citizens together.
The proposal rests on a very risky wager: "salvaging" and redistributing British seats, or some of them, when nothing points to the United Kingdom quickly leaving the Union, and when it is not at all certain that it will in fact leave in the end.
What Union and what parties?
But beyond this unlikely wager, we ought to look more closely at the conception of the Union that underlies the proposal for transnational ballots: a Union that is founded on the parliamentary system. This approach, which quite surreptitiously took root deep in the European Parliament and among federalists, goes counter to the idea of the founding fathers for whom legislative power rests on two pillars: the States, represented by their government, and citizens, represented by their deputies. Moreover, by denying the reality of the place States have in the architecture of Europe, it has paved the way for a permanent squabble between the European Parliament – a "democratic" institution representing the citizens – and the institutions representing the States, which are not democratic.
Valéry Giscard d’Estaing’s "invention" of the European Council (of the Heads of State and of Government) in 1974 and the compensation that the other five founding members gained – the election of the European Parliament through universal suffrage 5 – are certainly not alien to this new configuration, which moves the central place for the representation of Member States (i.e. the Council (of Ministers)) towards the Heads of State and of Government (i.e. the European Council), and moves the reflectors on the legislative work of a marginalized Council (of Ministers) towards a European Parliament operating in the open.
Some people believe it is pointless to try to overturn this change. I do not agree. While Giscard d’Estaing’s innovation had the undeniable advantage of reinforcing States’ direct involvement in the European project up to the highest levels, by organizing the debates among the Heads of State and of Government on consistent foundations, it has also had negative secondary consequences. For example, if we look simply at the most recent European Council’s hodge-podge agenda, it has made it possible for an infinite number of problems both large and small to reach the level of a twenty-eight member institution that has only fifteen hours every three months to debate and make decisions.
Looking at the situation carefully with the aid of hindsight, only a few of the great questions that have marked the life of the European political state in the last ten or fifteen years could have been taken up usefully at the level of the European Council. These include the shift of the United States’ center of gravity from the Atlantic to the Pacific and Europe’s need to take responsibility for its own defense; Russia’s authoritarian drift; the invasion and annexation of Crimea, as well as the occupation of Donbass by Russia and its surrogates; the tragedy in Syria and Iraq; the growing waves of immigration to Europe; the future of the Balkans; the progressively anti-democratic shift of certain Member States, chief among them the Hungary of Viktor Orbán, who is manifestly now prey to more than simply his own inner demons; and of course the financial crisis of 2008. And in fact it is not unreasonable to say that in several respects this last question could have been dealt with beforehand by the European Parliament and a Council of competent Ministers if an adequate institutional space had existed.
All of which brings us to the most important side-effect of Giscard d’Estaing’s innovation: the slow fossilization of the Council (of Ministers). As the European Parliament changed – without always being able to escape bureaucratic and particratic shifts (quite the contrary) – and gained strength with each modification of the Treaties, the Council (of Ministers) has gradually been devoured by the State mechanisms and by the organizations in Brussels that represent their use (Comitology and Coreper in particular). This is the opposite of what it was meant to be in the minds of the founding fathers: the domain where ministers representing the governments of Member States discussed, legislated and made political decisions.
This acceptance of the status quo concerning the Council’s mode of operation also owes much to the "parliamentary" vision of the Union held by those in favor of a dominant, even exclusive, role for the European Parliament as legislator. For they have no interest in re-evaluating the house that represents the States. Indeed it is also from their ranks that the idea of the Spitzenkandidaten – candidates that parties propose for the presidency of the Commission ahead of European elections – was born and imposed through a powerplay in 2014. The same people are now trying to manoeuver for the establishment of transnational ballots.
Turning the Council into a true European Senate
If, as I believe, this "parliamentary" approach is not adapted to the deep dynamic of the process of European integration that rests on both the States and the citizens, then it is absolutely necessary to recognize and reestablish a domain in which States are to be represented. To the extent that they are currently represented in two institutions – the Council (of Ministers) and the European Council (of Heads of State and of Government), it is worthwhile to begin by clarifying the extent of the powers that both enjoy and their methods of operation.
In addition to limiting the questions debated within the European Council to only the most vital ones, the institution that gathers the Heads of State and of Government could be a domain for debating and discussing questions that concern institutional modifications that stem from its own initiatives or from the request of one of the three other institutions: the Commission, the Council (Senate) and the Parliament. And if there is ever a genuine Common European Defense, this domain would also act as a European Security Council involving the Heads of State and of Government who are touched by the issue, and thereby become a space for approving (or disapproving) external interventions proposed by the President of the Commission.
A Cultural revolution
According to such a scenario, the Council (of Ministers) would effectively become the Upper House of the Union, the European Senate. Following the model of the Bundesrat, the German Upper House where the ministers of each federal state sit, the European Senate would be composed of five or six national ministers 8 who oversee related ministries 9 and split their time between supervising the ministries in their respective capitals and genuine parliamentary work with their European colleagues in Brussels.
This reform would allow minister-senators to give new momentum to (or receive it from) their respective governments on a weekly rather than trimestral basis, as is the case now through the European Council of the Heads of State and of Government. Moreover, it would allow us to put to rest the false question of the involvement of national parliaments in European political life. It would also do away with the white elephant solutions 10 that this entails since the relations of these national parliaments with their European minister-senators would allow them to consistently "raise" their proposals up to a Europe-wide level and receive from the same minister-senators all information on the progress of European legislative procedures.
Needless to say, though technically simple, this reform would consititue a major "cultural" revolution because it would bring to the fore the direct or indirect European importance of numerous national questions, which in turn implies a profound change in the work modes of national governments.
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A transnational constituency for the election of the president of the Commission
If the head of the Commission is the Spitzenkandidat of the party with the highest score in the European elections, this means that he or she has been elected only by the Parliament, to the great displeasure of the stripped member States. Which, despite appearances, is a bad omen for any true effort to reinforce the President of the European Commission.
If, as I believe based on the duality of European political legitimacy – member States and citizens – the President cannot be the head of the institution that represents the one to the detriment of other; and if we believe that it is desireable to have a single European constituency because it would allow all Europeans to participate in the same election, then it makes sense for the the President of the Commission to be elected through universal suffrage.
In fact, it would allow the election, and thereby the role of the President of the Commission, to be politicized, making it more meaningful and attractive to a media base that has very clearly shown itself to be a touch insensitive (to say the least) to the emergence of European Spitzenkandidaten. It would reinforce the authority of the President of the Commission and clarify his role as head of government and guarantor of treaties. Moreover it would make it possible to carry out the process of presidentializing the Commission that has been underway for fifteen years, which would also enable us to smoothly and peacefully overcome the principle of collegiality and of automatically awarding one commissioner per Member State.
To each his or her own elected representative
In 1995, under pressure from Tony Blair, who himself was giving in to the calls from other Member States to unify national electoral systems for European elections, the British agreed to align their electoral system with the predominant system in use on the continent: the proportional system. While this is quite clearly only one explanation, it does seem difficult to argue that the establishment of this system did not play an important role in bolstering the UKIP in Great Britain, in the same way as this same electoral system permitted the National Front to gain a certain legitimacy and develop a solid support base as early as 1979.
What happens, however, if we think that the primary goals of a European electoral system should be to guarantee the following: that the choices voters make carry genuine weight (seeing the candidate of their choice elected or defeated); the geographic community and proximity of voter and elected representative (including the possibility for the voter to directly address "his" or "her" representative); the elected representative’s full autonomy (even with respect to parties); and, at the end of the mandate, the possibility for the voter to support or sanction the outgoing representative? We are forced to acknowledge that the current proportional system does not fulfill these requirements, even when it is organized around macro-regions, as proposed by Alain Lamassoure, who, I must admit, has had better ideas in the past.
In a system where the President of the Commission would be elected through universal suffrage and would not be the expression of a parliamentary majority, the principle tasks of European elected representatives would be: to control the Commission; and to guarantee European legislative work, in agreement with the Council of Ministers (i.e. the Senate); and to represent the whole of Europe conscientiously and autonomously.
Adopting a majority ballot with one round across Europe (i.e. without the possibility of "letting your hair down" during the first round) would signal a genuine revolution. Not from the technical or legal point of view, since it would simply mean creating a number of constituencies equal to the number of parliamentarians who need to be elected in each Member State, and establishing a few safeguards to avoid any gerrymandering 11. It would be a revolution because it would imply a real break with the tradition of a proportional system that is the expression of an electoral concept founded on gaining and keeping power instead of exercising government functions and control. Such a reform would also be the moment to bolster European parties through the establishment of a mechanism for direct enrollment in a European party, for membership to a few priority objectives and to a process of investiture of candidates who want to campaign under the symbol of a European party (and no longer of a national party).
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