Rousseau in Italië: parlementsleden binden zich via elektronisch stemmen

@Rosseau in Italy: Binding Members of Parliament trough E-voting

As typical of modern constitutionalism and representative democracy, the Italian Republican Constitution provides that Members of Parliament (MPs) represent the Nation and carry out their duties without a binding mandate (Art. 67). The prohibition of binding mandate for MPs was provided in the constitutional text of the Kingdom of Italy – the Albertine Statute – too (Art. 41). Accordingly, MPs have no legal responsibility with respect to both their electorates and parties, as also confirmed by the fact that they cannot be held accountable for the opinions expressed or votes cast in the performance of their function (Art. 68). Consequently, they only bear a political responsibility that can be assessed at the expiry of the legislature. Therefore, during their mandate, MPs, even if belonging to the Government party, are always free to criticize the Government, and to contribute to dismiss it, in line with the Italian parliamentary system (Art. 94).

Moreover, the prohibition of binding mandate means that an MP can switch to another Parliament Group without facing legal consequences. This issue is of particular relevance for the Italian system which, since the late nineteenth century, has been characterized by the logic of ‘trasformism’ (trasformismo). Absent a two-party system and consolidated political movements, MPs have always been building agreements and alliances on a case-by-case basis. Such practice is coessential to the MPs’ free mandate and their independence from parties and districts. However, it also leads to the questionable custom of MPs voting differently from the party they have been elected with, and even changing party allegiance during the legislature. Many have also been the cases of break up and birth of new parties during the five-year Parliament term. For these reasons, the prohibition of the binding mandate is a disputed topic in Italian politics. MPs changing their political views and switching to new parties (or claiming that their own parties do not represent those views anymore) defend it. Leaders of the parties who suffered the loss of MPs, and consequently votes they can count on, highlight instead the importance of the trust relationship with the electorate and the commitment to the party.

The frequency of MPs switching allegiance has been depending upon the political context. In the period 1948-1991, the strong ideological background and party discipline of the two main fronts – the Christian-Democrats and the Communists – curbed the trafficking. Between 1994 and 2013, the habit took off but the bi-polarism between the center-right and center-left, and the presence of Silvio Berlusconi, whose party was mostly a creature at his own disposal, made such transfers pretty exceptional. Instead, since 2013, when the political system became tri-polar and new political actors emerged, transfers from one Parliament Group to another, and the birth of new Groups in Parliament, have become usual. It is indeed quite rare to find MPs who have spent all their political lives in the same Group.

The current low cohesion of Parliament Groups is due to the instability of the party system too: after all, the oldest political party in Italy is now the League (La Lega), founded only in 1991. The situation is even more problematic because of the lack of legal rules concerning party discipline: there is no law that gives execution to the constitutional rule that regulates the role of the parties in the political life of the Nation (Art. 48). Therefore, political parties act as private associations that cannot establish binding rules for decisions or actions taken within Parliament.

Last, the frequent appointment of new Governments – 67 Governments in the 73 years of the Republic – and the consequent formation of new majorities have inevitably injected a certain degree of fluidity of MPs’ allegiance and coalitions. Unsurprisingly, then, the transfers among Parliament Groups are also numerically significant. In the current legislature, which started in 2018, 147 MPs have already transferred from one Parliament Group to another.

Curiously, such transfers have mostly affected the Five Stars (Cinque Stelle) Parliament Group, which has tried since its inception to circumvent the prohibition of binding mandate. Indeed, also in response to the ‘trasformism’ practice, the Five Stars political movement – which actually refuses the label of ‘party’, also to take distance from such practice – has enacted a mechanism for ensuring that its MPs will vote accordingly to its electorate’s will. The Five Stars indeed claim a greater role for direct democracy in law making. Standing the representative democracy system and the constitutional prohibition of binding mandate, the solution has been found in the e-platform ‘Rosseau’ (nomen est omen), devised by the movement’s co-founder, Gianroberto Casaleggio.

Every time an important political decision has to be taken (such as joining a government coalition or voting for a crucial bill) ‘Rosseau’ is consulted. Anyone who is affiliated to the Five Stars movement for at least six months can cast a vote on ‘Rosseau’: the resulting decision will be binding for the Five Stars MPs, who have then to vote in Parliament in line with the consultation outcome. For example, recently the Five Stars had to decide whether declaring support for the Draghi Government. The ‘Rosseau’ consultation has been concluded with 60% of subscribers voting in favor (44.177 votes) and 40% against (30.360 votes), and therefore the Five Stars have joined the Draghi Government. As a result, the most populist political movement Italy has ever seen is now the major pillar of the most technocratic Italian Government ever. Some Five Stars MPs have considered this decision a betrayal of the movement’s original goals, and they have created new political groups.

Beyond such political issues, the ‘Rosseau’ e-voting system has raised numerous concerns, and of different nature. First, an existentialist question: who decides that a decision is so crucial for the Five Stars identity that ‘Rosseau’ has to be activated? And also, who decides how to frame the question that the e-platform subscribers will vote on? Such Schmittian issues have been temporarily solved by giving the movement’s ‘Guarantor’ (Garante), now the former Prime Minister Giuseppe Conte, the competence to decide. Second, there is a democratic concern: how many people do actually vote on ‘Rosseau’, thereby binding the Five Stars MPs and therefore, considering their numbers in Parliament, deciding over Italian political action? Actually, not so many: Rosseau has 120.000 subscribers, of which probably no more than 80.000 are active. Third, a structural issue: who owns ‘Rosseau’? Which types of safeguards does it provide vis-à-vis external interferences or voting manipulation? Actually, a private business, and not the Five Stars, owns ‘Rosseau’ and recently, after the death of Casaleggio, the two had some quarrels. Because of this, the Five Stars are organizing the next subscribers’ consultations in the very same way but by resorting to a different e-platform (‘SkyVoteCloud’).

Franco Peirone is lecturer in European and constitutional law at Maastricht University