Random legislative amendment generator
A two-column headline in an Italian newspaper has reminded me this morning of the hidden transformative powers of IT for our political process.
A far-right politician has devised a “random legislative amendment generator” allowing him and his band of brothers to table what are in fact clones of amendments. The parliamentary rules of procedure demand to treat all amendments individually and sequentially. The Committee runs out of time while busy voting on clones. It is a modern, electronic form of filibustering.
No sooner has this become public that a young IT-nerd working at CERN has devised a counter-strategy. Possibly using cladistics theory and programs, he has developed software that spots the cloning phenomenon and can whittle down the number of duplicates.
The parliamentary procedure battle is on: should IT-screening for clones and other filibustering measures be allowed? Until the principle matter is set out in new procedural rules, I can see a battle of IT-wits developing. Programs and counter-programs will be ratcheting each other up. Only party offices able to acquire such IT-instruments will be able to use them – in a partisan fashion. The single, artisanal MP with his substantive amendment will find no hearing.
Will IT-generated popular initiatives destroy the Swiss direct-democratic system?
Extending democracy beyond the Greek city walls demanded a transformation from direct to representative democracy. It entailed the “principal-agent” problem. The Swiss tinkered with the system until they found a solution: discretionary direct democracy (it fitted both their mentality and their context):
- Parliament holds legislative initiative and enactment powers – subject to discretionary verification and validation by a simple majority of the population through a referendum (within six months of promulgation, 50’000 voters could demand a popular vote on the piece of legislation). Mindful of the need to secure such a majority in a referendum, Parliament mostly towed the line of creating laws that could command a majority.
- The Constitutional Revision or Amendment (Art. 192 -195 BV), as proposed by Parliament: it requires a double majority of both the people and the cantons;
- The Constitutional initiative allowed the people to propose amendments to the Constitution, thus bypassing stalling tactics in Parliament and force a vote on a popular measure (100’000 signatures were needed). The conditions are set out in Art. 139 of the Constitution.
For one hundred years, the system worked. Though elected along party lines, MPs were forced to exercise what Aristoteles called sophrosyne (greek: σωφροσύνη) -which is “practical reason.” They had to find solutions which yielded a majority in the country.
Born in 1891, the right of constitutional initiative yielded, at first, a strange but seldom successful crop of the scurrile and fundamental. It flourished starting with the internet, which facilitated both spreading the proposal and gathering signatures. After 1990, voters approved 13 of all the 22 successful amendments. Nowadays, Swiss vote on several such initiatives each year.
The inflation of constitutional initiatives has shaken the country badly. These proposals are often grounded in the preventive philosophy of the “precautionary principle,” which demands action when faced with a poorly understood risk. Fear and emotionalism prevail – fanned by IT.
Changing the Constitution should not be the first reaction to a perceived threat but the last – and the result of a long deliberative process that will command vast loyalty because it is broadly legitimized. As it is, it is close to the tyranny of an emotional majority.
The inner structure of the Constitution is upset. We can see it best when we examine the constitutional role of international law (Part II – III of the Constitution). Approved by both Parliament and the people, international treaties reflect the country’s long-term commitment to stability and previsibility. As it is at the moment, momentary popular whim may override or at least threaten long-term contractual commitment. Switzerland, a small country that depends for its existence on international law, has become a less reliable partner.
So far, the Federal Government and the Parliament have failed to subject the initiatives to proper scrutiny as foreseen in Art 139,2 of the Constitution. The latter demands a proper differentiation between a “basic recommendation” and a “well-formulated proposal.” Most initiatives warrant classification as straw-polls, rather than constitutional injunctions.
The last vote has shown a rallying of a wide spectrum of political forces against the perceived “tyranny of emotions.” The system might be resilient after all.
The structural danger of IT
A political system relies on procedures to slow down the political process from sudden action based on an emotional flare-up to a deliberative process. Pacing the decision is essential for achieving a complex judgment.
“Reacting to what he perceived to be Plato’s belief that virtue consists solely in the knowledge of general principles (“technical reason”), Aristotle protested that moral (and political) action depends on the exercise of judgment in applying these principles to a particular circumstance.”
Judgment should, first of all, include both the material and historical context of a choice. But it is essentially more. “Judgment is not simply about repeating actions that have proven or have been deemed successful in the past” (pg. 19 (under similar circumstances). “Rather it is one that exploits past experience creatively in responding to the novel features that a particular situation present.” In other words, a political judgment is a complex process that needs time to mature.
With its infinite possibilities and fulminant speed, IT tends to background the role of time in our mental, social, and political processes. It creates the illusion of instant and perfect knowledge. It caters to the illusion of omnipotence and of time standing still. Life is the creative process of slowing down or even temporarily reversing entropy and the second law of thermodynamics. Life and social life need time to survive and evolve. In my view, the West’s greatest sin is the sin against time (it goes back to Plato, who dreamt of timeless forms). IT hurries us into temptation.
 For a thoughful early analysis, see Benjamin CONSTANT (2010): De la liberté des anciens comparée à celle des modernes. Mille et un nuits, Paris
 Women’s suffrage was approved in this way in 1971.
 The first Constitutional amendment ever passed entailed the prohibition of the ritual killing of animals; the interdiction of absinth and the banning of casinos were among the first five. On the other hand, the proportional vote was introduced by constitutional initiative in 1918, after it had been launched in 1913. At the time, the country faced a revolutionary situation. The amendment, aimed at broader power-sharing, led in 1919 to a massive redistribution of seats in Parliament and helped defuse the revolts.
 At the end of 2015, 438 constitutional initiatives had been started. 313 had gathered the necessary signatures. 200 came to a vote, and 22 were approved. Among the “scurrile” amendments we have the “prohibition of ritual slaughter of animals (1st), the prohibition of absinth and casinos.
 On 27 February 2016 voter turned down constitutional amendments aiming at; (a) automatic deportation of repeat foreign criminals, even for minor crimes; (b) “no speculation on food; (c) “discrimination in taxes for married couples (who pay more in certain circumstances) compared to other cohabiting couples,” but it would also have added the definition of marriage being “the union of a man and a woman”.
 On 9 February 2014, a fluke majority of 50.3% approved an initiative against “mass immigration.” This provision risks bringing down the whole structure of bilateral agreements between the EU and Switzerland – the mainstay of contractual economic relations.
 An example is the amendment prohibiting further construction of minarets, approved in 2009.
 Unsurprisingly, the populist proponents claimed that they succumbed to a “revenge of the elite,” backed by about 59% of the voters.
 Charles R. LARMORE (1987): Patterns of moral complexity. Cambridge University Press, Cambridge; (pg. 15) emphasis and brackets are mine.
 I shall reflect further on this. Suffice to say that if we accept that a butterfly’s movements may eventuate a hurricane, we would not know how to hurry the process along. A further analogy comes from biology, where such creative adaptation is found in “niche construction.” See: E. John ODLING-SMEE et als. (2003): Niche construction. The neglected process of evolution. Princeton University, Princeton.