The ability of the Icelandic president to refer legislation to a referendum has been source of controversy every since the president used his veto for the first time in 2004 to veto a bill on the ownership of the media. The episode lead to much debate that was primarily focused on whether the president’s actions were actually constitutional – a different clause in the constitution states that the president’s powers are exercised by the government’s ministers. The debate was legalistic and basically focused on competing interpretations of the constitutions. Regardless of what interpretation is ‘correct’, the episode highlights the limits of the legalistic discourse that has surrounded the Icelandic constitution – and still appears to surround the making of the new constitution.
The fact remains that the president did use his veto. He was able to do so because the constitution was sufficiently ambiguous and the political context was right – the government forced a bill, seen as targeting particular individuals, through parliament without much consultation and it appeared unpopular with the public. It can be argued that the president’s veto fundamentally changed the political system – previously it had been semi-presidential in name only. Since then the president has used the veto twice. In short, all the legal arguments about the constitutionality of the presidential veto didn’t matter at all. The veto came to be because it served the political ends of the president (whether those were opposition to the legislation or a desire to strengthen the presidency). On one hand, this suggest that the law is important, i.e., if we want the constitution to be effect it needs to be clear and unambiguous. On the other hand, it suggests the limitation of legalistic approaches as politicians (and people in general) react strategically to the institutions that constrain their actions. In other words, politicians generally don’t get involved in politics out of desire to follow the law but rather to achieve a variety of other goals, e.g., changes in policy or a desire to hold a public office. The constitutions sets the rules of the game but politicians will, of course, try to use those institutions to their advantage – much like football players occasionally take a dive or pull a shirt. The legal approach to constitution making largely ignores how political institutions create strategic incentives and, therefore, remains silent on what the unintended consequences of those institutions might be. As I have mentioned before, the fact that most of the writings that the Constitutional Council appears to be consulting (judging by its website) is written by lawyers (not to mention primarily being case studies focused on Iceland). I think Posner once wrote that there was few things as dangerous as a lawyer that didn’t know economics. These days I worry that there are few things as dangerous in Iceland as lawyers (or constitutional writers) that don’t know political science.
In some ways the controversy surrounding the use of the veto in 2004 can be seen as having sparked the constitutional reform debate so it is not surprising that the Constitutional Council has offered a proposal. The Council actually offers two options. The first one is to retain the current veto + referendum combination while an alternative proposal adopts a more traditional form of the veto where a veto sends the bill back to the parliament which can override the veto by simply passing the legislation again with a majority (i.e., no supermajority is required).
The first option, retaining the veto in its current form, might sound like sticking with the status quo but that is not entirely clear. The veto has been used by a single president that was elected as a figurehead rather than a political actor with the ability to shape policy outcomes. If the president retains his veto, chances are that the next presidential election in which there is no incumbent will be quite different – the candidates are likely to distinguish themselves more on policy grounds than simply, for the lack of better words, their ‘presidential-ness’. In other words, the actions of the current president are not necessarily a good indicator of how future presidents will behave. I would not be surprised that the use of the veto would increase, especially under co-habitation, as the role of the president becomes more political. Alternatively, the government will increasingly consult and bargain with the president over major legislation in order to avoid the exercise of the veto. Whether that is a good thing or not, I don’t know. It doesn’t strike me as a terrible idea, but it has the potential to change Icelandic politics quite radically.
I am less enamored with the second option, combining a veto with a simple majority override provision. Essentially it makes for a very weak veto power – parliament can always override the president’s veto. In essence, the power of the veto only amounts to being able to delay legislation for a little while. The proposal does require the president to explain why he vetoes a bill, which some might argue does allow the president to shape the agenda a bit but it is not clear to me that the president doesn’t have that same ability to persuade without the veto. The proposal also has a built in incentive for parliament to ignore the president’s suggestions as any amendments to the legislation would offer the president another opportunity to veto the bill. Thus, in circumstances in which parliament is uncertain about what compromises are required to obtain the president’s signature, it may consider itself better of by making potential improvements to the legislation in order to avoid further delay.
Somewhat strangely, then, the more substantial proposal for changing the constitution is actual the less radical one – the relationship between the president and the government will remain similar to what it has been for the past 65 years. The seemingly less radical proposal of retaining the current veto powers, on the other hand, actually has a far greater potential for changing politics in Iceland because the use of those powers has been reinterpreted in the past few years to provide for an active political role for the president. Thus, the proposal retaining the status quo relationship between government and president is the more radical one as it seeks to codify the president’s powers.