A couple of days ago, OLAF, the EU’s anti-fraud office after several years of investigation reported that Members of the European Parliament were ‘transferring part of their salaries to the national party coffers.’

Across the pond, Washington Post, a newspaper, reported that the President’s Name, ‘Trump’, would be printed in the memo section of the stimulus check granted to millions of Americans due to the Covid-19 relief package passed by Congress.

Prima facie these two stories are unrelated.  Both stories, however, encapsulate practices of political self-entrenchment. In the former case, the political parties involved increased their resources by half a million euros each, which means that they could outspend on political advertising compared to opposing political parties. In the latter case, the President’s name on the stimulus check is free advertisement a couple of months before the elections.

The theory of political self-entrenchment: economic, political and legal aspects and the inefficient framework

Political self-entrenchment, which is defined by Levinsion and Sachs as the use of tools by which political actors insulate themselves from political change,  has been examined from different perspectives and provoked scepticism in different sciences. In economics, Acemoglu and Robinson have used a plethora of historical examples to show how the elites resisted change in order to protect their dominance in the political sphere. Moreover, Buchanan  views governments like monopolies with political actors purporting to entrench their interests and also refers to their so-called ‘political income’ as a part of the total rewards of office. In political science, Dahl argues that the public good of serving in office is likely to be transformed in time into the maintenance of powers and privileges.

In the legal field, Klarman proposed an anti-entrenchment theory of judicial review focused on electoral matters. Justice Scalia pointed out that the ‘first instinct of power is the retention of power’. Pildes has characterised political self-entrenchment as a structural cancer.

Self-entrenchment can be exemplified in many other scenarios.  For example, in Country A, where a political party has won the elections, and then replaced the executive body in the Public Broadcasting Service, positioning loyal party members within it, to ensure that the Public Broadcasting Service will report friendly news.   Or in Country B, where the President of the Republic has won a second and final term in office, according to the term limits. However, during his second term he initiates an amendment process to abolish the term limits, meaning that the President would be allowed to run again for office. Or in Country C, a political party wins the elections and secures the necessary supermajority to amend the Constitution. It amends the Constitution, by weakening the system of checks and balances and by limiting the power of the opposition. That way it secures its dominance in the political system.

What seems to be common in the aforementioned cases, which are not completely fictional, is the fact that political actors, incumbent politicians, prevailing political parties,  and electoral majorities, take advantage of and even abuse their power for self-serving purposes. As a result an uneven playing field is formed in the political arena with some political actors facing disadvantages, obstacles and possibly barriers to entry. Accordingly, even well established democracies based on rule of law and human rights protections, with free and periodic elections, lack completely fair elections.

Interestingly, in the two cases mentioned at the outset, a coherent legal framework to block and deter acts of self-entrenchment was absent. In the former case reported by OLAF, while the transferring public funds to the national party coffers was contrary to the rules of the European Parliament, OLAF remarks that European Parliament does not ‘have effective sanctions in place to address effectively the breach of its rules and to enable the recovery of due amounts established by the investigation’. In the latter case of the US stimulus checks, the appearance of the President’s name on an Internal Revenue Service disbursement is a breach of a longstanding practice, and possibly a constitutional convention, as it will be the first time such incident will take place.

The impact of political self-entrenchment on political equality

Political self-entrenchment poses imperative questions about the quality of the modern democracy and most importantly about equality of opportunities in the political arena, the importance of which in electoral matters has been stressed by the Venice Commission. Thus political self-entrenchment is not simply a structural deficit in the political system, it is also a human rights issue distorting equality.

While modern constitutions do not address the accessibility of democracies explicitly on condition of a level playing field, a number of constitutional provisions aim to safeguard equality of opportunities and an inclusive political system. The principle of political equality in the right to stand for election (passive suffrage) is embedded in the constitutional provision on equality (see for instance article 3 of the Basic Law of Germany, or at a pan European level see Article 3 of Protocol No. 1 to the European Convention of Human Rights, likewise in the US the Equal Protection Clause of the 14^th Amendment, see also Colegrove v. Green, 1946).

Despite this, surprisingly, such incidents are not that rare. For example, in Greece a couple of weeks ago, the Government hosted cartoons mocking the leader of the opposition on the official website designed to inform the people about the developments on Covid 19.

Within this context, how do we safeguard democracy from political actors who abuse their office in order to retain power at the expense of new political actors? What does constitutional law do to face this problem and what more should it do? How can we raise public awareness on the issue of political self-entrenchment?

The task for those who believe in liberal democracies and constitutionalism is to ensure that constitutional systems have the appropriate and adequate mechanisms to prevent and deter these sort of practices that create an uneven playing field in the political process.

The ideal model is a competitive democracy without barriers to entry, with free and fair democratic elections. In an ideally competitive democracy, people benefit and gain satisfaction when the most competent leaders are elected. The most competent leaders then successfully channel the state powers in the direction that the people wish maximizing voters’ political welfare.

Have constitutions failed to safeguard a level playing field? Possibly yes; since there is no explicit principle or a systematic framework embedded in the constitutional arrangements to enhance a competitive democracy.

On the other hand, it can be argued that this pathology should be evaluated by voters in political terms during elections, while a strict legal approach will overregulate and judicialise politics. This may indeed be true. But the question now is whether the plethora of cases showing the manipulation of the constitutional system for self-serving purposes  signal that the time has come for a more legal approach.

Dr. Antonios Kouroutakis, Assistant Professor, IE University

(Suggested citation: A. Kouroutakis, ‘How liberal is a democracy without a level playing field in the political process?’, U.K. Const. L. Blog (21st May 2020) (available at https://ukconstitutionallaw.org/))