Constitutional courts as veto players: Lessons from the United States,France and Germany

The number of constitutional courts and supreme courts with constitutional review rights has strongly increased with the third wave of democratisation across the world as an important element of the new constitutionalism. These courts play an important role in day‐to‐day politics as they can nullify acts of parliament and thus prevent or reverse a change in the status quo. In macro‐concepts of comparative politics, their role is unclear. Either they are integrated as counter‐majoritarian institutional features of a political system or they are entirely ignored: some authors do not discuss their potential impact at all, while others dismiss them because they believe their preferences as veto players are entirely absorbed by other actors in the political system. However, we know little about the conditions and variables that determine them as being counter‐majoritarian or veto players. This article employs the concept of Tsebelis’ veto player theory to analyse the question. It focuses on the spatial configuration of veto players in the legislative process and then adds the court as an additional player to find out if it is absorbed in the pareto‐efficient set of the existing players or not. A court which is absorbed by other veto players should not in theory veto new legislation. It is argued in this article that courts are conditional veto players. Their veto is dependent on three variables: the ideological composition of the court; the pattern of government control; and the legislative procedures. To empirically support the analysis, data from the United States, France and Germany from 1974 to 2009 is used. This case selection increases variance with regard to system types and court types. The main finding is that courts are not always absorbed as veto players: during the period of analysis, absorption varies between 11 and 71 per cent in the three systems. Furthermore, the pattern of absorption is specific in each country due to government control, court majority and legislative procedure. Therefore, it can be concluded that they are conditional veto players. The findings have at least two implications. First, constitutional courts and supreme courts with judicial review rights should be systematically included in veto player analysis of political systems and not left aside. Any concept ignoring such courts may lead to invalid results, and any concept that counts such courts merely as an institutional feature may lead to distorted results that over‐ or under‐estimate their impact. Second, the findings also have implications for the study of judicial politics. The main bulk of literature in this area is concerned with auto‐limitation, the so‐called ‘self‐restraint’ of the government to avoid defeat at the court. This auto‐limitation, however, should only occur if a court is not absorbed. However, vetoes observed when the court is absorbed might be explained by strategic behaviour among judges engaging in selective defection.     

The Decline of the Legislative Veto: Federal/State Comparisons and Interactions

Legislative veto systems originated in the 1930s. Their numberincreased steadily until the early 1980s and then declined significantly.The decline of the legislative veto is attributable primarilyto decisions by a number of state supreme courts between 1980and 1984, and by the U.S. Supreme Court in 1983. Almost allcourt decisions have held the legislative veto to be an unconstitutionalviolation of the separation of powers. In addition, most proposalsto authorize the legislative veto by state constitutional amendmenthave been rejected by voters. There has also been a decreasein legislators' enthusiasm for the legislative veto, even instates where it has not been declared unconstitutional. Legislatorshave found other ways to control administrative agencies. Inexamining the decline of the legislative veto, one finds thatthe federal government exercised little influence over the states,the states exercised still less influence over the federal government,but the states did significantly influence one another.     

The Electoral Connection: How the Pivotal Judge Affects Oppositional Success at European Constitutional Courts

Constitutional courts are often considered to be ‘veto players’ or ‘third chambers of parliament’. However, no attention has been paid to the composition of European constitutional courts and how they make decisions. Do European judges exhibit political preferences as their US counterparts do? If so, it is important to know who selects the judges as the selection determines the outcome. This article analyses the composition of the German Bundesverfassungsgericht and the French Conseil constitutionnel. It tests the correlation between the party affiliation of the pivotal judge and oppositional success empirically for all abstract reviews filed between 1974 and 2002. In both countries the likelihood of an oppositional victory or defeat varies with the ideological position of the pivotal judge. This leads to the conclusion that European judges decide on the basis of their political preferences like their US counterparts.     

Institutional veto players and cabinet formation: The veto control hypothesis reconsidered

Are potential cabinets more likely to form when they control institutional veto players such as symmetric second chambers or minority vetoes? Existing evidence for a causal effect of veto control has been weak. This article presents evidence for this effect on the basis of conditional and mixed logit analyses of government formations in 21 parliamentary and semi‐presidential democracies between 1955 and 2012. It also shows that the size of the effect varies systematically across political‐institutional contexts. The estimated causal effect was greater in countries that eventually abolished the relevant veto institutions. It is suggested that the incidence of constitutional reform is a proxy for context‐specific factors that increased the incentives for veto control and simultaneously provided a stimulus for the weakening of institutional veto power.     

The Politics of Judicial Procedures: The Role of Public Oral Hearings in the German Constitutional Court

Modern liberal democracies typically depend on courts with the power of constitutional review to ensure that elected officials do not breach their constitutional obligations. The efficacy of this review, however, can depend on the public observing such breaches. One resource available to many of the world's constitutional courts to influence the public's ability to do so is public oral hearings. Drawing on the comparative judicial literature on separation of powers, public awareness, and noncompliance, I develop a formal model of public oral hearings. The model provides empirical implications for when a court will hold public oral hearings and how hearings correspond to a court's willingness to rule against elected officials. An empirical analysis of hearings at the German Constitutional Court supports the model's prediction that courts use hearings as a resource to address potential noncompliance.     

National Constitutional Courts,the Court of Justice and the Protection of Fundamental Rights in a Post-Charter Landscape

This article critically evaluates the possible impact of the Charter on the relationship between the Court of Justice of the European Union (CJEU) and national constitutional courts. While it is premature to provide a definitive assessment of the kind of collaboration that these courts will develop, it is crucial to identify a number of features of the new landscape that will influence the direction in which the relationship between the CJEU and constitutional courts will evolve. This article discusses several reasons that may result in better or a higher number of judicial interactions, as well as factors that may create tension or cause problems in the relationship between the CJEU and national constitutional courts. As such, it offers a framework that may help us to understand future post-Charter judgments by these courts setting out how they conceive their engagement with their counterpart(s) on fundamental rights issues.     

the impact of constitutional structures and collective and competitive veto points on income inequality in industrialized democracies

This paper presents the first systematic, empirical examination of the impact of constitutional structures on income inequality among eighteen OECD countries. Our pooled time series/cross–sectional panel analysis (n = 18, t = 2) reveals that consensual political institutions are systematically related to lower income inequalities while the reverse is true for majoritarian political institutions. We also make a crucial distinction between 'collective' and 'competitive' veto points. Our multiple regression results provide strong evidence that collective veto points depress income inequalities while competitive veto points tend to widen the inequality of incomes. Thus, some institutional veto points have constraining effects on policy while others have 'enabling' effects.     

Constitutional Review and the Selective Promotion of Case Results

A significant majority of the world's constitutional courts publicize their decisions through direct contact with the national media. This interest in public information is puzzling in so far as constitutional judges are not directly accountable to voters. I argue that the promotion of case results is consistent with a theory of judicial behavior in which public support for courts can undermine incentives for insincere decision making. In this article, I develop a simple game theory model that identifies how case promotion is linked to judicial choice. Results of a simultaneous equations model estimating the Mexican Supreme Court's merits decisions and its choices to publicize those decisions by issuing press releases to national media outlets support an account of constitutional review in which judges believe they can influence their authority through case promotion.     

The impact of constitutional structures and collective and competitive veto points on income inequality in industrialized democracies

Abstract This paper presents the first systematic, empirical examination of the impact of constitutional structures on income inequality among eighteen OECD countries. Our pooled time series/cross–sectional panel analysis (n = 18, t = 2) reveals that consensual political institutions are systematically related to lower income inequalities while the reverse is true for majoritarian political institutions. We also make a crucial distinction between 'collective' and 'competitive' veto points. Our multiple regression results provide strong evidence that collective veto points depress income inequalities while competitive veto points tend to widen the inequality of incomes. Thus, some institutional veto points have constraining effects on policy while others have 'enabling' effects.     

Gubernatorial Use of the Item Veto for Narrative Deletion

Legislative use of narrative, such as conditions and riders, in appropriations bills has become common and has had negative consequences for the executive budget and veto, as well as for the legislative process. Some governors have used the item veto as a remedy. While they have not necessarily diminished the amount of narrative, they have achieved some protection of the executive budget and veto power. Their success depends greatly on the type of legal authority embodied in this constitutional power.     

Does Policy Stability Increase the Constitutional Court's Independence? The Case of Italy During the First Republic (1956–1992)

In this paper, we consider thesentences of constitutional illegitimacy bythe Italian Constitutional Court in theFirst Republic (1956–1992) as a measure ofits independence from politicians. We focuson the Court's incidental review and testwhether the Court's independence increaseswhen there is more policy stability, namelywhen politicians are less able to changethe policy status quo by legislation. Wefollow Tsebelis (2002) in assuming thatlegislative policy change is less likelywhen either the number and/or ideologicaldistance of veto players increases. As aproxy for the size of the veto players'Pareto set, we use either the number ofparties in government, or the number ofparties forming a constitutional majorityin Parliament, or the number of effectiveparties in Parliament, or measures ofideological distance based on Laver andHunt (1992). By controlling for the Court'sdegree of internal cohesion, cointegrationanalysis shows that there is a stable andpositive long-run relationship between theCourt's independence and proxy measures ofthe degree of policy stability.     

Bargaining Constitutional Design in Italy: Judicial Review as Political Insurance

Why would politicians, who expect to hold political power in the future, choose to create a constitutional court with the power of judicial review that can veto politicians' policies? Some theories suggest that international forces may be causal, as institutions or ideas are diffused geographically or within legal systems. Others focus on domestic politics as driving the decision to institute judicial review. Among these are the commitment, hegemonic preservation, party alternation and insurance theories. This article looks at the decision to establish a constitutional court in the Republic of Italy, the first post-World War II court in Europe that was not in a federal system. It argues that the insurance model drove the decision of the Italian Christian Democrats to support creation of a constitutional court at the point of constitutional design, but later to delay implementation once in power. Conversely, the Italian Communist–Socialist bloc opposed establishment of the court at the Constituent Assembly that wrote the post-war constitution on the ideological ground that it was contrary to popular sovereignty. However, once the leftist bloc found itself in the role of the opposition, it became a champion of the Constitutional Court and judicial review. The insurance theory is shown to explain the behaviour of the Christian Democrats in both design and implementation phases and the actions of the Communist–Socialist bloc during implementation.     

Portugal's semi-presidentialism (re)considered: An assessment of the president's role in the policy process, 1976–2006

This article analyses the policy-making role of Portugal's heads of state in the period 1976–2006. Not only is Portugal rarely studied in the English language comparative literature, but there is no consensus concerning the proper definition of the country's system of government, whether it is semi-presidential or parliamentary. This article presents new data on the Portuguese president's role in the following areas: cabinet appointment and dismissal; parliamentary dissolution; ministerial appointments; referral of legislative bills to judicial review; veto powers; and agenda-setting through going-public tactics. It is concluded that the president's role in the policy process has never been irrelevant. While the 1982 constitutional reform did eliminate the possibility of undisguised presidential government, presidents have continued to be important in policy making, particularly due to use of their veto and dissolution powers. Therefore, the article argues that Portugal has remained solidly semi-presidential.     

Conserving the Constitution? The Conservative Party and Democratic Renewal

In 2008 David Cameron declared that the Conservative party was 'ready for government' and suggested that 'the change we need is not just from Labour's old policies to our new policies… It's about a change from old politics to new politics'. This 'new politics' narrative is something of a cliché: British constitutional history reveals a regular pattern whereby opposition parties renege upon implementing far-reaching constitutional and democratic reforms once they win power. It is in this context that this article draws upon documentary analysis and a number of interviews to examine the Conservative party's position on constitutional reform and democratic renewal. It concludes that although the Conservative party has spent the last decade decrying the 'destruction' of the constitution it has undertaken little detailed preparatory work in relation to how it might seek to alter the governance of Britain. As a result the research presented in this article provides a number of insights into elite politics, strategic game-playing and executive veto capacities within a context of growing political disengagement from politics and falling levels of trust in politics.     

Does Enhanced Veto Authority Centralize Government?

Previous theoretical and empirical research findsenhanced veto authority has little systematic effecton level of spending. This paper takes a new tact,examining the effect of veto power on thecentralization of governmental services. It proposesand tests a model of federalism in which differenttypes of veto authority lead to differing degrees ofcentralization when the executive and legislature havedisparate preferences over the level of governmentthat should provide services. Empirical resultsindicate governors in the United States use enhancedveto authority to centralize state and localgovernment spending.     

Constitutional courts as arbiters of post-conflict territorial self-government: Bosnia and Macedonia

Constitutional and supreme courts frequently end up examining the political and legal questions at the heart of peace agreements and post-conflict constitutions. Where a peace agreement has included territorial self-government (TSG) provisions courts are often endowed with the capacity to adjudicate disputes between state and sub-state levels of government. The effectiveness of courts in fulfilling this role as not been comprehensively examined. This article fills this important gap examining whether the results of existing research on the role of constitutional and supreme courts in resolving disputes in traditional federalism also apply in these particular circumstances. It finds that where TSG is used as a conflict management mechanism judicial review can have centralizing tendencies if this occurs it can largely be attributed to the processes used to select though the devolutionary multinational nature of the states is also relevant.     

A Public-Choice View of Swiss Liberty

This article compares the provisions of the American and Swissconstitutions from a public-choice perspective. Accordingly,the Swiss Constitution is seen as one designed to bring abouta transmission of citizens' desires into political action, whereasthe U.S. Constitution is designed to prevent the misuse of grantedpower. The specific level of analysis employed here is the principal-agentmodel, which is used to examine collective decisionmaking atthe constitutional, legislative, and para-constitutional levels.The article then considers the role of the courts as arbiterof constitutional questions and conflicts.     

Nonmission–Based Values in Results–Oriented Public Management: The Case of Freedom of Information

Since the 1940s, Congress and the federal courts have sought to make U.S. federal administration more responsive to democratic–constitutional values, including representation, participation, transparency, and individual rights. As manifested in the National Performance Review, the New Public Management emphasis on results may reduce attention to these values, which for most agencies are not intrinsically mission–based. Freedom of information illustrates the problem of protecting nonmission–based, democratic–constitutional values in results–oriented public management. Agencies' annual performance plans under the Government Performance and Results Act overwhelmingly ignore freedom of information, even though it is a legal requirement and performance measures for it are readily available. This study concludes that focusing on results may weaken commitment to democratic–constitutional values by default. It suggests that using a balanced scorecard approach in performance plans could enhance attention to freedom of information and other democratic–constitutional values.     

Committees and the core of the Constitution

An ongoing debate in the formal theory of legislatures involves the question of why these institutions (apparently) manifest so much stability. That is, why do the institutions not continually upset policies adopted only a short time before? A large number of answers have been advanced. This paper proposes that the stability derives from the interaction of two factors, (i) the fundamental constitutional rules (bicameralism, executive veto, and veto override) that structure the legislative process, and (ii) the committee systems endowed with veto powers that many American legislatures have developed. This interaction, we argue, can create a core — a set of undominated points — so large that even a substantial change in the legislature's members (reflecting electoral outcomes, for example) will be unlikely to shift its location enough for the status quo to be upset.     

Executive veto power and credit claiming

The line-item veto has often be heralded as an effective tool in reducing pork barrel spending. A model of veto bargaining over public goods and pork barrel spending in the presence of credit claiming incentives demonstrates that the item veto does not necessarily reduce pork barrel spending and reduces the executive??s ability to attain his preferred level of spending on public goods. The item veto also has an ambiguous effect on the balance of power between the executive and the legislature while strengthening the position of the legislative agenda setter within the legislature.