While the constitutional reform process in Iceland received a considerable amount of attention in the foreign media the failure of the reform process has received hardly any mention. Adopting the new constitution required two votes in parliament with an election held in the interim.  However, the session came to an end without a vote on the constitution. Instead the parliamentary party leaders negotiated an agreement about a procedure for amending the constitution in a new session of parliament following the upcoming parliamentary election to be held on April 27.

Went did the government shy away from passing the constitutional amendment? The government is a minority government and it was therefore not in an ideal position to force the bill through parliament. That does, however not explain everything since some of the minor opposition parties’ MPs clearly favored passing the constitution. The major opposition parties, however, were willing to put up a fight and threatened to filibuster the bill.

It seems unlikely that the threat of a filibuster would have been enough to derail the bill. A combination of things seems likely to have led to this outcome. The government faced a choice of what legislation to pass before the session came to an end and the constitutional reform was probably not a priority for the government. Passing the constitution was probably not a priority for some government MPs. Moreover, the constitutional reform was a contentious issue and it was not clear that it was in the government parties’ interest to take that fight just ahead of an election – especially when the government was facing a number of new minor parties, many of which were in the pro-camp. With a slew of minor parties unlikely to win representation in the pro camp and the major opposition parties in the right in the anti-reform camp it may have seemed unwise to risk alienating centrist voters. In other words, the votes on the left are largely dead because of the 5 percentage threshold while the centrist voters will really determine who will hold the reins after the election.

So it is easy to blame the government for killing the constitution and formally that is  true. However, as I argue, to stop the analysis there is an extremely naive view of politics. In my view the responsibility for the failure of the constitutional reform rests with the constitutional assembly.

The failure of the constitutional reform is the result of both the content of the proposal and the process by which the proposal created.

Starting with the content of the proposal, the problem was that it was simply too radical and that the constitutional assembly failed to take adequately into account the process by which a constitutional reform takes place. By radical I don’t mean to imply radical in any objective sense but rather radical relative to the preferences of the actors that must formally approve the proposal, i.e., the MPs that vote on the proposal not once but twice with an election held in the interim. A proposal that gets rid of malaportionment, which has the effect of reducing the representation of parties with greater support in rural areas, is naturally going to have some opponents, i.e., those MPs that stand to lose their seats and their parties. Alone the change in the electoral system might stand a chance but bundled with a number of other changes that similarly alienate other MPs the changes of the reform bill were significantly reduced. Failure to take into account the need to build support of the majority of parliament and, essentially, engaging in some form of anti-log-rolling vastly reduced the possibility of reform. The irony, of course, is that the people charged with drafting the new rules of the game clearly failed to understand the current rules of the game.

One reason why the constitutional assembly failed so miserably at playing politics might have been because it thought it had a mandate to create a radically different constitution. Electoral mandates, however, are temporary and rely on the belief that the mandate is valid or that it is costly in some way to go against it. In other words, if the constitutional assembly wanted to leverage the mandate in order to persuade the parties to go along with the reform then it had to be very careful in maintaining it or protecting the mandate. The constitutional assembly failed to do this by relying on vague claims of transparency and participation while failing to provide convincing reasons for why its proposal should be adopted.

First, as I have documented at considerable length before, the work of the constitutional assembly – and in the process as a whole -almost completely ignored the work of political scientist and, in particular, foreign political scientists. Despite these criticisms and claims by the members of the assembly to have consulted a great deal of literature that wasn’t cited that information has not been forthcoming. The documents in support of the proposal certainly don’t offer much in terms of a deep understanding of how political institutions work. Nor do the extensive meeting notes of the assembly or its subcommittees.

Second, the constitutional assembly claimed that its proposal was based on the results of the national forum held in 2010 that brought together about 950 randomly selected citizens to discuss what changes should be made to the constitution.  While an interesting exercise its organization and the analysis of the data was unclear and vague.  The results were presented as mindmaps and wordclouds (http://www.thjodfundur2010.is/nidurstodur/) although the sentences/statements from each table were also made available.  Not suprisingly we learned that people like things like democracy, justice, values, etc.  But no details are available about how the constitutional committee came up with the values that the new constitution should uphold or why the constitutional assembly chose to interpret those values the way it did.

Third, the election of the constitutional assembly didn’t help either – most of the candidates had fairly vague platforms, which might have been alright had they had seen there role as actually learning about how political institutions work.  But in either case the format of the campaign and the number of candidates (525) makes it difficult to interpret the outcome of the election as a mandate for a particular type of reform.
Fourth, the constitutional assembly prided itself on encouraging the participation of the public, allowing them to post suggestions on the assembly’s website.  Again, a great idea but it is not clear that any of the suggestions actually affected the constitutional proposal.  The ‘crowd-sourced’ constitution got a lot of attention in the foreign media but it was largely a facade – as one of the assembly’s members has openly admitted to.
Fifth, the consultative referendum on the proposal was problematic.  The wording of the question left it open to interpretation whether the voters were voting for adopting the proposal unchanged or if it was supposed to serve as a blueprint for further, and potentially substantial, refinement.  A significant share of the voters did vote for the proposal and in line with the assembly’s proposal on more specific issues but voter turnout was pretty low.  Supporters of the proposal argued that turnout didn’t matter – those that stayed home just didn’t care or we couldn’t say anything about what they wanted.  That strikes me as highly problematic.  We have a consultative election with poorly worded questions on a proposal that is probably not going to be adopted.  Is it a surprise that voters might stay home – even if they had opinion about the constitution? Leaving aside the fact that many voters were likely more influenced by party politics and/or had limited understanding of what effects the changes might have (the constitutional assembly certainly failed to make a convincing case and the media’s coverage was absolutely pathetic – that is, when there was some coverage), the results of the referendum just can’t be seen as a strong mandate for reform – or, at least, this particular reform.
In combination, these facts made it easy for the politicians to dismiss any claims that the constitutional assembly had a strong mandate and that they, therefore, would have to go along with it.  Compare that with a hypothetical situation where it was transparent how the results of the national forum identified the areas that needed fixing, that the constitutional assembly had actually studied political institutions and consulted with foreign experts, that the questions on the referendum had been clear, and that the media had covered the proposed reforms properly in order to allow voters to make informed decisions.  In those circumstances, I think it would have been much for the political parties to back away from reform.  In this sense, the constitutional assembly killed the constitution.
Not only that, various members of the constitutional council went on to form political parties that are contesting the parliamentary election this Saturday.  Ironically, in doing so they have virtually handed the election to the parties that opposed the constitutional reform the most as these parties are unlikely to pass the 5% electoral threshold for being included in the allocation of seats at the second tier – another testament to the political acumen of the would-be constitutional fathers and mothers.