Analysis from Israel
The current system is bad; district-based voting would be worse. But those aren’t the only options.
State Comptroller Joseph Shapira and State Attorney Moshe Lador held an illuminating public debate two weeks ago over whether prosecutors should seek to bar municipal office-holders indicted for corruption from running for reelection. Shapira was opposed, arguing that “the public should be the one who judges them.” Fine in theory, Lador retorted, but in practice, “the public has a very limited ability to express its criticism of the conduct of public officials.”

The truth is that both are right. Shapira is right that evaluating a candidate’s fitness for public office – in this case, whether criminal suspicions against him outweigh a record of past achievement – is properly the province of the electorate, not the unelected legal system. Lador is right that in practice, this is often impossible, because aside from mayors, few officials at any level are directly elected. Instead, voters elect party slates whose composition they have almost no say over. Thus the only way to vote against a corrupt individual is by voting against his entire party – something voters who otherwise support that party are rarely willing to do.

In short, Israel’s electoral system forces voters to choose between Shapira’s Scylla and Lador’s Charybdis: either abdicate a cardinal democratic right to unelected legal officials by letting them determine when criminal suspicions should trump a candidate’s record, or accept the impossibility of ousting corrupt officials as long as they retain the backing of the handful of people who determine their party’s slate. In parties without primaries, those people are the party leaders; in parties with primaries, they’re the “vote contractors” – union bosses, clan leaders, influential politicians and others whose voting recommendations are followed by thousands of primary voters.

One solution frequently suggested to this problem, at least on the national level, is replacing the current electoral system of proportional representation with district-based elections, thereby making individual representatives directly accountable to their constituencies. In theory, this would allow voters to oust a corrupt individual without significantly damaging his party as a whole, since worthier candidates from that party could still be elected in other districts.

Yet this proposal has a very serious drawback in a country with as many divisions as Israel has: district-based elections hugely disadvantage small parties. In most districts, adherents of small parties will be in the minority, and in those districts, their votes will be wasted. Thus these parties will at best win fewer seats than they do under the current system, and perhaps not even enough to cross the electoral threshold.

To proponents of district-based elections, that’s a plus rather than a minus: coalitions would no longer comprise numerous small parties, producing more stable governments.

But as Shany Mor, a former member of Israel’s National Security Council, pointed out in an insightful article last year, eliminating smaller parties would eliminate an important safety valve that keeps minorities inside the democratic system rather than outside trying to achieve their goals by violence.

“A society as deeply divided as Israel is – across race, religion, ideology – with such a high tolerance for violence and such a broad familiarity with weapons, should have by all comparative measures long ago descended into civil war,” Mor wrote. “Nearly every other newly independent post-1945 state certainly did.”

So why didn’t Israel? A key factor, Mor argued, is its proportional representation system, which allows almost any group of like-minded people a reasonable shot at winning enough votes to enter the Knesset, and perhaps even the cabinet, and thereby influencing policy from the inside. As long as that hope remains viable, the impetus to resort to violence is low. It’s only when people despair of being able to influence policy by ordinary political means that violence begins looking like an attractive option.

This, incidentally, is also a strong argument against the current effort to raise the electoral threshold from 2 to 4 percent: by making it much harder for small parties to enter the Knesset, this legislation could drive certain small but highly ideological groups to despair of being able to affect policy from the inside and resort to violence instead. Indeed, as I’ve argued before, this is already happening among fringe groups like the extremist settlers known as “hilltop youth.” Having twice seen exemplary democratic efforts to affect policy thwarted by undemocratic means, they no longer believe it’s possible to influence policy through the political process, and are therefore trying instead to deter settlement evacuations by violence.

But not only could district-based elections do real damage to Israel’s fragile democratic fabric, it’s also not clear they would be effective as a corruption-fighting measure. This, too, stems from Israelis’ deep divisions. If one candidate, for instance, favors unilateral withdrawal from the West Bank while another opposes it, or one favors free-market reforms while another advocates more government spending and higher deficits, people with strong opinions on these issues aren’t likely to vote for the other candidate just because their own is corrupt. Instead, they’ll hold their noses and vote for the corrupt candidate who shares their views on the issue they deem most important.

Fortunately, district-based elections aren’t the only alternative to the existing system. Many European democracies have adopted electoral systems that preserve the advantages of Israel’s current proportional representation system while also allowing voters to oust individuals who are corrupt, incompetent or otherwise undeserving of reelection. I’ll discuss how such a system might work in a subsequent article. 

Yet for some reason, the Anglo-American district-based system is usually presented as the main alternative to the current one, and that has done the cause of electoral reform great harm. For with all its flaws, proportional representation has enabled Israel to survive and thrive for 65 years now. Thus even Israelis who don’t consciously grasp its safety-valve function are understandably leery of jettisoning it.

Nevertheless, Israelis are also becoming increasingly worried about public corruption. It’s therefore time for all those who want to step up the fight against corruption but don’t want to abdicate their democratic rights to the courts to realize that the current system has outlived its usefulness – and then to start exploring alternatives other than the Anglo-American model.

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Israel’s constitutional crisis has been postponed, not resolved

After years of leftists crying wolf about democracy being endangered, Israel finally experienced a real constitutional crisis last week. That crisis was temporarily frozen by the decision to form a unity government, but it will come roaring back once the coronavirus crisis has passed.

It began with Knesset Speaker Yuli Edelstein’s refusal to let the newly elected Knesset vote to replace him as speaker and culminated in two interventions by the High Court of Justice. I’m one of very few people on my side of the political spectrum who considers the court’s initial intervention justifiable. But its second was an unprecedented usurpation of the prerogatives of another branch of government, in flagrant violation of legislation that the court itself deems constitutional.

Edelstein’s refusal, despite its terrible optics, stemmed from a genuine constitutional concern, and was consequently backed even by Knesset legal adviser Eyal Yinon, who had opposed Edelstein many times before and would do so again later in this saga. The problem was that neither political bloc could form a government on its own, yet the proposed new speaker came from the faction of Benny Gantz’s Blue and White Party that adamantly opposed a unity government. Thus whether a unity government was formed or Prime Minister Benjamin Netanyahu’s caretaker government continued, the new speaker would be in the opposition.

But as Yinon told the court, speakers have always come from the governing coalition because an opposition speaker can effectively stymie all government work. And once elected, he would be virtually impossible to oust, since 90 of the Knesset’s 120 members must vote to do so. An opposition speaker would thus “hurt democracy,” warned Yinon. “We’re planting a bug in the system, and this, too, undermines our constitutional fabric.” That’s why Edelstein wanted to wait, as Knesset bylaws permit, until a government was formed and could choose its own speaker.

Yet despite this genuine and serious concern, the fact remains that a newly elected majority was being barred from exercising its power. Moreover, it had no parliamentary way of solving the problem because only the speaker can convene parliament and schedule a vote. Thus if you believe majorities should be allowed to govern, the court was right to intervene by ordering Edelstein to hold the vote.

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