No, We Don't

The Madrid public school authorities have set bilingual programmes in place all over the province. They are advertising the programmes in print media, on television and on the radio, and on public transport. A few examples:

Spanish and foreign media have noticed that the campaign is flogging bad grammar--reinforcing a mistake often made by learners of the English language. Has the campaign been dropped? Corrected? Has anyone apologised or admitted the mistake? No. The English may be bad, say the campaign's defenders, but that doesn't matter: the slogan is effective. Who knows if it is? It's now notorious, at least in Madrid. But the decision to run the ads, once taken, couldn't be reversed. To do so would mean admitting that someone had made a mistake, and no-one in Spain ever makes such an admission about policies or how they are implemented.

Show Me the Money

A friend who shall go nameless (old joke coming) but whose initials are David Brock (end of old joke) showed me this piece in Saturday's El País. The reporting is not very good. Still, one datum is worth pursuing: CiU paid a direct marketing firm nearly 150,000 euros for mass mailings. (It's not clear when or to how many homes.) A market price for the same service would be about 4000 euros, says El País's Pere Ríos. (His source for the figure or model for reckoning it isn't clear either.) It does seem like a lot of money for a small party. Grants to parties came to over 81 million euros in 2009, of which CiU got less than 2.5 million. If CiU falls into the general pattern of 80% state financing, its total income for 2009 should be about 3.1 million euros, of which the money spent on direct mailing would be 4.8%--a lot for rubbish. But there may be a catch: in election years, most parties are entitled to a per-voter grant which specifically underwrites these kinds of mass mailings, up to 21 euro-cents per voter. There are over 35 million electors in Spain, over 5 million in Catalunya. The latter figure would give CiU over 1 million to spend on mass mailings in a general elections year. Whether that approximates the real cost is another matter. The real issue is this: if parties are funded as though they were state utilities, why are they audited to see that this money is well spent? I haven't found annual reports or auditors' reports on any party web page. What I have found is the logo for a state infrastructure spending stimulus package on the PSOE website (on this page; look for the Plan E logo and link) and the Transparency International index for 2009. Spain is the 32nd most corrupt country on Earth. Not bad, but not good.

Garzón

Two investigating magistrates (Varela and Marchena), prosecuting another investigating magistrate (Garzón) for misconduct, are being accused of misconduct. That accusation has been levelled in the court of public opinion; formal complaints will follow if Garzón is found innocent.

There are four issues in the Garzón case, and a problem arising from all four. First, the issues:

1) Did Garzón accept payment from a major Spanish bank in return for favours? The bank financed a lecture series at an NYU research centre subsidised by two other bank and Coca-Cola, among others. NYU has issued a statement exonerating Garzón, who had seen identical charges against him dropped twice since 2008. For an account of the charges, see the following piece from last Sunday's Vanguardia:

If after a leave of absence Garzón did not declare a conflict of interest in cases to which the bank was party, the problem may be with conflict of interest guidelines rather than the judge. The investigating magistrate handling the case, Manuel Marchena, has also been busy on the lecture circuit, giving talks at events that have sponsors.

2) Did Garzón knowingly exceed his powers in ordering that conversations between suspects in a political corruption case and their lawyers be taped?

3) Did Garzón knowingly exceed his powers in undertaking his investigation of Civil War-era mass murders? Human Rights Watch and Amnesty International have criticised Spain for keeping a 1977 political amnesty law on the books, arguing that it comes into conflict with points of international law from which Spain is not exempt, under its treaty obligations. The UN Human Rights Committee has likewise asked that the 1977 law be repealed.

4) How can it be proven that a public official has knowingly exceeded his or her powers? Garzón is a magistrate working within a complex judicial framework. His actions have not been arbitrary; he believes them to be grounded in points of law. In the ordinary course of court business, disputes over Garzón's actions would be approached as questions of jurisprudence, argued before the judges before whom his cases--those he has investigated--are brought to trial. If the judges do not accept Garzón arguments, out they go, along with the case. Prevarication doesn't mean falling into error: it means knowing that something is wrong and lying about what one knows.

Now, the problem. No-one is debating the fine legal points of the second and third charges against Garzón. No-one understands them. They have been taken for what they do, politically, not for what they say, legally. Lawyer-client privilege is a serious matter; perhaps the law on that point, and so on the wiretaps, is clear, and Garzón did overstep his remit.

The New York Times, The Financial Times and The Economist all smell a fish. The fish is systemic, the unravelling of Spain's post-Franco political settlement. Garzón is regularly referred to by his defenders as a "progressive judge"; in the foreign press he's a "leftist judge". If you let such qualifiers attach to the judiciary with no qualms, justice is partial, and there is no justice. I am reminded, tangentially, of another prosecutor, Archibald Cox. Fired by Nixon over a disputed point of law, Cox did not go down in history not as Nixon's political enemy. "Whether ours shall be a government of laws and not of men," Cox said after his dismissal, "is now for Congress and ultimately the American people to decide." That's the point: the rule or law can exist above politics. Whether or not this is true not matter so much as the belief that it might be true. If you lose that belief, you cease to believe that the game of politics can be played cleanly. Politics has bled into everything in Spain, nothing is clean, and Garzón is no Cox.

A Programme for Political Reform in Spain

In a democracy, the very existence of a political class is repugnant. The more mature a democracy, the better it will weather a political class's pursuit of its class interests. As Spanish democracy is not mature, it would benefit from formal changes designed to weaken the political class and its structures (e.g. patronage) in favour of more effective scrutiny of public life. Here are my suggestions:

1. Abolish the closed-list electoral system.
2. Reserve 75% of parliamentary seats for small electoral districts, each sending a single representative to parliament. Use an alternative vote or instant run-off system for voting in these constituencies.
3. Reserve 25% of parliamentary seats for open party lists to allow for ideological as well as territorial representation. Restrict anyone winning such a seat from serving more than two terms, unless he or she should run for and win an election in one of the small constituencies.
4. Require parties to choose local candidates democratically and locally, i.e. by open election in each electoral district. Restrict voting in such elections to local party members of at least one year's standing.
5. Require parties to choose open-list candidates openly and democratically, i.e. by open election among all party members of at least one year's standing.
6. Require parties to choose parliamentary leaders and members of the party executive openly and democratically, i.e. by open election among all party members of at least one year's standing. Set fixed terms for such offices.
7. Restrict all holders of elected offices from holding any discretionary appointments in the public sector for five years after they leave office. Remove all parliamentary privilege save that protecting holders of elected offices from prosecution for slander or libel for remarks made in an elected assembly. All other protection is either an admission that that the justice system is open to political manipulation or an invitation to break the law.
8. In municipalities, institute direct elections for mayor.
9. In municipalities where members of the municipal council are paid a full-time salary, restrict the number of council members in accordance with a sliding scale. (Some Catalan municipalities have one full-time councillor per 4500 inhabitants, under a city-wide closed-list electoral system. Over-representation is wasteful, an indirect subsidy for political parties.)
10. In municipalities whose population surpasses a set threshold (i.e. 20,000), institute an electoral system of districts or wards for council elections. Under the current system, neighbourhoods have no political voice.
11. Determine a fixed and very low percentage limit for the salaries of holders of discretionary posts, in relation to the overall budget for the municipality, autonomous community, or the state itself.
12. Remove the principle of parliamentary representation from the governance of public bodies such as public broadcasters and the choice of justices for the Constitutional and other Courts. Party interests are not the public interest. Public appointments commissions, reporting to the ombudsmen (e.g. the defensor/a del pueblo, the sindicatura de greuges), should recommend appointments on the basis of merit after open public competitions.
13. Ombudsmen themselves should be chosen by a 75%+1 parliamentary majority vote. If no parliamentary consensus is forthcoming, ombudsmen should be elected directly by popular vote in a special election free from party affiliation.
14. Charge the ombudsmen with assessing all public sector advertising and communication. Make it a duty of media outlets to refuse public sector advertising that is not primarily informative and in the public interest. Give the ombudsmen power to fine both advertiser and media outlet if any public-sector advertisement, paid communication or campaign is demonstrably propagandistic.
15. Finally, and perhaps most radically: adopt a federal structure. The distribution of powers is currently determined by legislation subject to the constitution and thus to greater judicial interpretation. Write the distribution of powers into the constitution and the room for dispute between levels of government would be minimal.

Judicial Independence

When is arbitrary power superior to formally democratic mechanisms? When naming judges, perhaps. The judges of Spain's highest court serve limited terms. They are chosen by the lower and upper houses of parliament, the executive, and the judiciary's own administrative body. In the press, judges' names are often mentioned together with the party that put his or her name forward. They are known to belong to competing judges' associations, the largest of which are routinely referred to as conservative and progressive. Couple this court challenges to legislation launched by political parties themselves, and the judiciary soon resembles a chess game. Thus, the more prominent judicial decisions become, the greater the public's perception that the judiciary is shot through with party-political loyalties, for a prominent judge is (thanks to the press) a judge whose political affinities are known. A democratic mechanism--parliamentary election of judges--ultimately undercuts the very legitimacy which it was designed, in the 1970s, to restore.

What happens when judges are named by the executive, as in some Westminster democracies? In a word: scrutiny. Where power is openly concentrated in one individual's hands, and that individual happens to be the head of government, the likelihood that an abuse of power will reflect on public perception of his or her character is very high. The trade-off in such a system is the prevalence of patronage appointments to lower benches; but appointments to the court of last resort need to stainless for the sake of those appointing as much as those appointed.

Independents

Few Spaniards realise that a socialist sits in the U.S. senate. Senator Sanders of Vermont describes himself as such, but was not a Socialist candidate. He has won elections as an independent since his first run for the mayoralty of Burlington, Vermont, in 1981. He's also served in the U.S. House of Representatives. He is a party-less animal, an anomaly, the exception that proves the rule.

There is another independent in the U.S. senate; there are independents in the U.K., Canadian and Australian parliaments. Some have left or been expelled from parties, others have eschewed party affiliation and nonetheless succeeded. Election-winning independents demonstrate that direct links with an electorate can be forged, and representative democracy served by representatives and the demos, without mediation.

In Spain, the only electoral mechanisms allowing for independents are the Senate and, in theory, municipalities where a single person serves as the council. Otherwise, the electoral system excludes human beings as biologically constituted--as individuals. Why?