Constitutional Politics: When and Why Constitutional Preferences Matter for Decision-Making
Constitutional preferences matter in constitutional politics. That is, when elected politicians decide on the institutional framework for policy-making. In constitutional politics, higher-order rules are at stake: basic choices about the allocation of authority between levels of governance and institutional actors in the political system. These choices resonate with policy-makers' constitutional preferences and democratic norms. It is possible for policymakers to derive their desired course of action from their general views regarding the acceptable organization of the European polity. In contrast, in day-to-day policy-making on, say, the environment or the economy, it is far less clear what any given actors' ideal of the EU polity implies for the substance of particular legislative choices.
A second reason why constitutional preferences matter in particular in constitutional politics is that the institutional decisions at stake involve parties and elected politicians prominently and downplay the role of bureaucrats and interest groups. Given the time, resource, and information demands of daily policy-making, it is almost unavoidable for elected politicians to draw on the support of policy experts in the bureaucracy and specialized societal interests (e.g. Andersen and Burns 1996). These actors can provide detailed information about the problems that policies are meant to fix and the impact of existing policies on the ground. Constitutional choices, in contrast, are more a matter of principle than of expertise. The implications of different courses of action are easier to understand for parties and politicians. The kind of expertise that is needed relates to the operation and design of political institutions that politicians navigate on a daily basis and in which they have successfully build their careers. Consequently, there is less reason for elected actors to draw on bureaucratic and interest group support in making their choices and, in turn, less that these latter actors can offer in exchange for being involved in decision-making. Parties and politicians, the actors that are most likely to have clear views on what is the right and desirable way to design the political system, are, thus, likely to play a more prominent role in constitutional politics compared to day-to-day policy-making.
For instance, in a study of how the EP acquired decision rights in EU agricultural policies, a domain traditionally dominated by sectoral policy interests, Roederer-Rynning and Schimmelfennig (2012) maintain that the decision-making environment played a crucial role. The choice was made at the Convention of the Future of Europe. There, parliamentarians and party politicians from national governments dominated while sectoral interests groups and specialized policy experts from, say, agricultural ministries of the member states were largely excluded. The agenda of the Convention, moreover, focused on macro-institutional questions such as the distribution of authority among the EU's institutional actors, and sought to apply horizontal solutions throughout the EU's legal framework in a quest for legal rationalization and clarification. Under these conditions, the constitutional preferences and democratic commitments of Europe's elected politicians strongly informed the principles underlying legal rationalization. As the authors put it, 'as legal rationalization was guided by accepted principles of rule of law and political liberty in liberal democracies, it advanced the paradigm of the EU as a parliamentary system representing the states and peoples of the Union' (Roederer-Rynning and Schimmelfennig 2012: 957).
The two reasons discussed so far for why constitutional preferences matter apply to the question of why national parliaments adapt to the EU. First, we have already briefly seen above, that the different views of parties regarding the appropriate constitutional order of the EU polity entail views on whether the EP or national parliaments should provide democratic control over policymaking. Furthermore, parliamentary competences in the exercise of public authority are at the heart of what policy-makers understand to be required by norms of democratic governance. The following sections will discuss still in more detail that parties across the member states have clear and systematic views on the role national parliaments should play in the EU. Second, in deciding on creating and reforming parliamentary oversight competences in EU affairs, parliamentarians do not depend on the advice of sectoral policy specialists. The issues they face, such as adjusting parliamentary information rights or committee structures are intimately familiar to every parliamentarian. They constitute the 'bread-and-butter' procedures with which they deal in their legislative work on a daily basis in all areas of parliamentary politics, not only in EU affairs. Constitutional preferences should, therefore, matter for the choices parties make regarding the adaptation of national parliaments to the EU, first, because these choices resonate with constitutional preferences and, second, because they require no relevant role for sectoral interests that might not have, or not allocate much salience to, constitutional preferences, as long as their substantive goals are met.
One may object that policy-makers do not only pursue constitutional preferences in their institutional decisions. They also seek to make sure that the institutions eventually chosen will place them in an advantageous position in subsequent policy processes. Parties in particular should be sensitive to the way institutional choices might enhance or constrain the chances to influence public policy or to win elections. Where such interests are strongly at stake, it could become very costly for parties to pursue their constitutional ambitions, at least to the extent that unfavourable institutional outcomes would follow. At first sight, it is hard to imagine that a party would accept a clear threat to its influence or electoral prospects only to realize a lofty constitutional ideal. Yet, at the same time, it also is a stretch to think that policy-makers would easily give up on deeply held constitutional priorities that they see not simply as day-to-day political exigencies but as expressions of their identity as parties or individuals. They may very well accept some loss of influence and votes, particularly if the losses are not so large as to amount to political 'suicide'.
Where constitutional preferences and, say, parties' electoral goals or vested policy interests of sectoral bureaucracies collide, many scholars would concede that the latter trump the former in most cases. It is clear why; parties that surrender their day-to-day policy influence for the sake of their contemporaneous constitutional preferences risk losing out on both fronts in the future. Their loss of policy influence may translate into difficulties in holding on to their political authority in electoral competition, meaning that they may no longer have a say when the next choices about the EU's institutional design arrive on the agenda. In their analysis of the negotiations of the Amsterdam Treaty, Moravcsik and Nicolaidis (1999), for instance, assert that the positions of national negotiation delegations predominantly reflected tangible domestic policy goals and, in some cases, electoral considerations of governing parties. Ideological divides, in particular between governments of parties with federalist constitutional preferences and those leaning towards intergo- vernmentalist visions of the EU, mattered little except in areas where European choices had no or uncertain consequences. The decision to expand the legislative authority of the EP in a broad range of policy areas was driven by ideologically motivated demands of governments with federalist constitutional preferences, and possible only in the absence of easily predictable implications for substantive policy choices, electoral outcomes, or parties' policy influence.
Yet, in the case at hand, the situation is the other way around. It is not the case that concerns over electoral prospects or policy influence are clearly and strongly affected by national parliamentary rights in EU affairs and, thus, threaten to trump constitutional preferences. On the contrary, as already discussed, EU-related oversight institutions are not essential to the successful operation of coalition cabinets, nor crucial in managing the disconnect of legislative and office coalitions under minority government, and hardly of direct relevance for the outcomes of national elections. Moreover, parliamentary oversight capacities in EU affairs do not clearly lead to one policy rather than another; for example, a left-leaning rather than a right-leaning one. To say they do is similar to claiming that, for instance, the existence of a committee system encourages high taxes. Yet, the effect of legislative institutions depends on the partisan composition of the parliament, and this composition changes over time with elections.
In the absence of strong electoral and policy implications of EU-related oversight institutions, it is likely that parties' constitutional preferences drive institutional adaptation to integration in the member states. How exactly depends also on the configuration of constitutional preferences across parties and national parliaments.