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Passing Laws: When the End Justifies (or not) the Means

Even in democratic systems, governments are able to bypass regular legislative processes. What are the consequences, advantages and risks? To answer this question, Sylvain Brouard (CEVIPOF/Sciences Po & LIEPP) and Michael Becher (IE University & IAST Toulouse) conducted experimental studies. Their findings, published in ‘Executive Accountability Beyond Outcomes: Experimental Evidence on Public Evaluations of Powerful Prime Ministers,’ (American Journal of Political Science, September 2020) show the extent to which citizens, with few exceptions, are attached to the principle that laws be passed by a parliamentary majority. Presentation.

Does Forcing Through Legislation Hurt Governments?

In their study, the researchers found that governments are generally right to anticipate that voters will hold them accountable for both their results and their failure to achieve results.

Election poster by G. Pompidou, presidential election 1969. Source; CEVIPOF Archives – CC BY-NC-ND 4.0

However, pressure from competing agendas and interests often make legislating time consuming and difficult. As a result, leaders in many contemporary democracies are constitutionally empowered to use procedures that bypass the regular legislative process and its majority rule. Such is the case, for example, of presidential decrees in presidential regimes or for engagement of government liability in parliamentary or semi-presidential regimes.
These practices typically run up against significant criticism targeting their undemocratic nature or the political weakness and/or incompetence of the government using them. However, this criticism typically also involves substantial policy disagreements or party rivalries. It is therefore difficult to know whether the disagreement relates more to the substance of a law or to how it should be passed.
Meanwhile, governments are often reluctant to use these procedures, not least because of the criticism they generate, despite some of the policy achievements they would enable. Thus, whether or not a leader chooses to force through legislation depends on his or her anticipation of citizens’ arbitrage between their policy preferences and their view of the democratic process. It remains unclear whether citizens assess governments by considering whether or not they force through legislation and, if so, what causal mechanisms are involved. For citizens and, incidentally, governments, do the ends justify the means? And if so, under what conditions?



Crédits image : Ittmostt via Flickr CC BY 2.0

To understand voters’ reactions to these issues, the researchers designed several online experiments. They chose France as a case study for two reasons. First, the constitution of the Fifth Republic is a well known and accepted example of rationalised parliamentarism, notably because of its controversial Article 49 paragraph 3, authorising the Prime Minister to engage the government’s liability in order to pass a bill. Second, this constitutional provision has been used 89 times to date, garnering considerable media attention.
Understanding the effect of the use of 49.3 in assessments of the executive requires strictly comparing comparable situations where the same law would have passed with 49.3 and without. It is also necessary to consider governments’ failures to pass a law or decisions not to take a legislative initiative. Indeed, the executive power is likely to be poorly assessed for either political failure or inaction, which affects a government’s calculus over using 49.3.
An experimental approach is particularly suitable for these purposes. In a series of surveys (in several waves of the 2017 French Electoral Survey), up to 19,000 respondents were asked about their satisfaction with a hypothetical future situation where a Prime Minister would propose legislation. To account for the complexity of real-world political situations, in addition to the legislative process and its outcome, each respondent was also provided the information they would typically have party affiliation of the Prime Minister, theme and purpose of the legislation, economic context, and political context.

A Negative Effect of 49.3 on Assessments of the Prime Minister

All other things being equal, i.e. holding the Prime Minister’s party affiliation and the proposed law constant, our surveys show that satisfaction with the Prime Minister’s action is on average 16% lower when the proposed law is adopted using 49.3 versus a parliamentary majority. Failure to pass the same law with a parliamentary majority results in a 25% penalty on average compared to the same benchmark.

General policy statement, Philippe Edouard, June 12, 2019. Source: Services of the Prime Minister. © Government 2021

Forcing through legislation thus cancels out most of the popularity gains associated with the success of a political initiative. Moreover, the use of 49.3 is similarly penalised by supporters and opponents of the proposed law, as well as by supporters and non-supporters of the Prime Minister’s party. In other words, the use of 49.3 is not only condemned by those who have an interest in it. The opposite is true when the legislative initiative fails: only supporters of the proposed law condemn the Prime Minister, and severely so.

Although the literature on the assessment of governments underscores that economic conditions are a major factor, considering these conditions do not alter the results. It does, however, allow for a more detailed examination of how economic conditions affect the executive’s incentives to legislate and in what way.
When the economic context improves, all other things being equal, any legislative initiative is detrimental to the popularity of the executive, which is higher because of economic conditions: various reasons for dissatisfaction – opposition to the proposal, supporter disappointment, and opposition to the use of the 49.3 – negatively impact assessments of the Prime Minister, regardless of the legislative procedure and its outcome. Conversely, when the economic context deteriorates, a legislative initiative is preferable to inaction: assessments of the Prime Minister, penalised by the economic conditions, improves, even if the initiative fails or requires forcing through the legislation. In a stable economic context, assessments of the executive improve only if a bill is passed by a parliamentary majority.
Thus, the use of the 49.3 is systematically detrimental to assessments of the executive compared to adoption by a parliamentary majority using the traditional legislative process. This is true across the electorate. Nevertheless, compared to the statu quo, and in certain segments of the electorate, there are situations in which forcing through legislation can be beneficial to the executive. This result is consistent with the observation, in France and elsewhere, of their selective use of procedures.

What are the Causal Mechanisms?

Manifestation syndicale contre le 49.3 des retraite. Paris, mars 2020. Crédits photo ; Jérôme Hédou CC BY-NC-SA 2.0 vi Flickr

The use of 49.3 has no impact on the perceived competence of the Prime Minister or on confidence in his project. Rather, it hurt the perception that democracy is working well. And this, in turn, generates nearly 65% of the deterioration in satisfaction with the Prime Minister’s action. Consistent with the normative hypothesis, those who are in favour of ‘a strong man who does not have to worry about parliament or elections to run the country’ are significantly less likely to condemn the use of 49.3. Finally, the use of 49.3 is not detrimental to the executive when it takes place in a context where the opposition slows down the adoption of a law by the parliamentary majority by tabling thousands of amendments. Conversely, in contexts of internal divisions within the majority or massive public demonstrations, the Prime Minister’s engagement of government liability negatively impacts assessments. Citizens thus disapprove of the use of 49.3 when it is perceived as a break with the majority norm in the legislative process of representative democracies. Disapproval is highest among citizens attached to this norm.

In the long run, the interaction between citizens’ perceptions and governments’ actions may affect the legitimacy and stability of democracies. By modulating their assessment of governments according to their performance and their means of achieving results, citizens de facto limit their propensity to force through legislation via the powers that constitutions often grant them to use at their discretion. This mechanism helps ensure that full constitutional powers are exercised with restraint – a fundamental condition to preserving the legitimacy of democratic procedures in a democracy. However, it has a weakness: a substantial decline among citizens or a significant share of them, of normative attachment to the majority principle would weaken, or even upend, this delicate balance. Any resemblance with existing situations cannot be entirely coincidental….

Sylvain Brouard is a research director at CEVIPOF. His research focuses on political behaviour, political attitudes, and political institutions from a comparative perspective.