Is the Separation of Powers Exportable?
Calabresi, Steven G., Bady, Kyle, Harvard Journal of Law & Public Policy
It was a great honor for both Authors to participate in this Symposium together with Professor Juan Linz. (1) Although Professor Linz favors parliamentary government and we both favor presidential separation of powers systems, we agree on one absolutely crucial point. We think it is a disastrous mistake to combine the French semipresidential constitutional system with a proportional representation electoral regime as some countries have unfortunately done. (2)
We both think American-style presidential separation of powers regimes are exportable and desirable under some carefully controlled circumstances. Like Professor Linz, we would not recommend such a regime for a country polarized into two hostile religious or ethnic camps. (3) We also would not recommend a presidential separation of powers regime for third-world countries suffering from a history of dictatorship or rule by caudillos or strongmen like Russia. But we do recommend a presidential separation of powers regime for federal polities that have multiple cross-cutting cleavages, a recent history of democratic rule, a majoritarian electoral system, strong member states within the federation, and a need for a more assertive federal foreign policymaking apparatus. We want in this Essay to make the perhaps startling argument that the European Union is such a polity and that it needs a presidential separation of powers system like the one in the United States if it is to become a successful federation rather than merely a confederation. (4) In so arguing, we realize of course that there is no chance at all of such a presidential separation of powers system being adopted. Nonetheless, if we can show that it would be a good thing for the people of the European Union to elect a president directly that would surely be relevant to the question of whether it is ever desirable for a presidential separation of powers system to be exported.
The European Union is a confederation of twenty-seven member states with a population of almost five hundred million citizens that generates more gross domestic product than the United States. (5) The EU has an annual budget of 141 billion Euros and 24,000 employees serving as career civil servants. (6) The EU, in effect, has a bicameral legislature like the United States. There is a Parliament (7) with 785 members (8) chosen by proportional representation from closed party lists in elections where turnout is low. (9) There is also a Council of the European Union (10) with twenty-seven members--one from each state--that votes by a qualified majority and in which more populous nations cast more votes than less populous ones. (11) The executive power is in the hands of a twenty-seven member European Commission (12)--one member from each nation state--and the Commission is headed by a President who is picked by the Council and Parliament. (13) The Commission is subject to substantial direction and control by the Council, which is the most powerful entity in the EU. (14) Finally, there is a judicial branch headed by the European Court of Justice. (15)
The European Union suffers from a severe democracy deficit because the cumbersome twenty-seven member Council and Commission and their presidents only imperfectly control the 24,000 or so civil servants of the European Union. (16) More important, the people of Europe do not get to vote directly either for the members of the Council or for the President of the Commission, so they rightly feel that they have little say in EU policymaking. (17) This leads to low turnout in elections to the EU Parliament, and the splintering effects of proportional representation and a closed ballot further delegitimize that body. (18) The EU is unable to make its weight felt in foreign policy, and it is almost completely dependent on the United States to provide for its national defense. (19) In short, the governance structure of the EU is a mess. It is suitable for the governance of a confederation but not for the federation that many hope Europe will become. …