Executive-Legislative Relations in Parliamentary Systems: Policy-Making and Legislative Processes 3030923428, 9783030923426

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Executive-Legislative Relations in Parliamentary Systems Policy-Making and Legislative Processes

Patrícia Calca

Executive-Legislative Relations in Parliamentary Systems

Patrícia Calca

Executive-Legislative Relations in Parliamentary Systems Policy-making and Legislative Processes

Patrícia Calca Konstanz Baden-Wurttemberg, ¨ Germany

ISBN 978-3-030-92342-6 ISBN 978-3-030-92343-3 (eBook) https://doi.org/10.1007/978-3-030-92343-3 © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

For my family, Maria Catarina, Sebastian, Maria Antónia and Odílio For my supervisor, Becky Morton ( in memoriam)

ACKNOWLEDGEMENTS

Executive-legislative relations are at the core of political science questions. In addressing this issue, from a legislative process perspective, I tackle important political institutions and policy-making questions. Exactly because the puzzles related to this subject are theoretical and empirically salient and relevant, I dedicated my PhD dissertation to some of them. This book is the result of that research. The PhD years are always a challenge, for many reasons. Yet, I was far from imagining that until the moment I would do my viva so many big changes would have happened like living in three different countries, meeting my better half, a burned flat five months before getting married and while trying to deliver my PhD dissertation. From these events to the moment I wrote these lines some additional things happened, the most momentous being the birth of my daughter. This book is the result of my PhD research and of further work, it would not be possible without the help of many people. In August of 2020, after signing the contract with Palgrave, I wrote an e-mail to Becky Morton, my PhD supervisor. She was happy about this endeavour. Unfortunately, about a month later she would pass away. Becky was decisive for my PhD. Not only did she agree to be my supervisor without knowing me well, to be able to do a semester at NYU, with regular meetings with her, was a priceless academic and personal boon. But more than her intelligence, competence, enthusiasm and work ethic, it was her generosity that always kept on amazing me. She is deeply missed and it has been a strange year knowing that she is not at e-mail distance. I am profoundly grateful to have had the opportunity to know her. I am also vii

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grateful to my other two supervisors, Nina Wiesehomeier and António Marques Bessa. In Portugal, a dissertation is defended in front of a jury. I would like to thank the members of the jury of my defence for their comments and suggestions: Karin Wall, Carlos Jalali, André Freire, Manuel Meirinho and Pedro Magalhães. I would also like to thank the Palgrave team for all their patience during this process and the three anonymous reviewers. Additionally, I would like to acknowledge the courtesy and availability of Olga Shvetsova and Lanny Martin for writing two endorsements for this book. Several people and institutions contributed to the creation of this book. I thank Ana Balcão Reis and Steffen Hoerning for the possibility to freely attend game theory classes at Nova School of Business and Economics. In the Portuguese Parliament I would like to thank Manuela Magalhães and Leonor Galvão Borges, always very patient with my requests. I had identical luck with the services of DIGESTO and the team coordinator, Maria Manuel Pais Correia. The only former Portuguese prime minister that agreed to give me an interview was Francisco Pinto Balsemão, and I thank him for that. For initial information about the legislative process in Portugal, I thank Jorge Reis Novais. At the rectory of the University of Lisbon I would like to thank Inês Oliveira who helped me disentangle some hairy administrative questions. Before starting the PhD programme at the Instituto de Ciências Sociais, Universidade de Lisboa (ICS-UL), I had prepared a Fundação para a Ciência e Tecnologia (FCT) grant application, that I fortunately received. I thank all those who read several initial stages of that proposal, especially Luís de Sousa, Maria da Saudade Baltazar, Nelson Vieira and Rosalina Costa. I thank all my students at the Universities of Aberta, Mannheim, Kaiserslautern and Konstanz; I am a better researcher (and a better person) because of them. At ICS, I am grateful to the postgraduation office services for the administrative and travel support, the availability and patience of all the library workers, and to Maria Barbas and Gonçalo Tomás with whom I shared classes in the graduate programme. Finally, I thank Paula Costa and José Manuel Rolo (in memoriam) for giving me the privilege of their friendship. My path would have been much harder if I had not been able to count on financial support from several institutions, specifically related to

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my dissertation: I thank the University of Mannheim for the Empirical Implications of Theoretical Models (EITM) summer fellowship (2009); the FCT for the four-year grant (2009-2013); ICS for several travel fellowships (2010–2013); the Gulbenkian for a research fellowship (2013); the Deutscher Akademischer Austauschdienst (DAAD) for the graduate fellowship (2013); and the European Consortium for Political Research (ECPR) for the graduate travel grant (2015). In 2017, I returned as a postdoc to Portugal to Centro de Investigação e Estudos de Sociologia Instituto Universitário de Lisboa (CIES-ISCTE). Then like now, already as researcher, I have been lucky to work with a great team, and I thank them for that.1 While writing my dissertation I made several visits and taught at the University of Mannheim. I would like to thank Thomas Bräuninger, Mark Debus, Thomas Gschwend, Sabine Carey and Sandra Eckert not only for being academic examples for me, but also because they always made me feel welcome. Also at the University of Mannheim I would like to acknowledge the help and availability of Ushi (Ursula Horn), Deborah Gottinger-Würtz and Lutz Pöhlmann. My time at the University of Mannheim was special to me, and I will always cherish the amazing memories. I also visited the University of Barcelona, more specifically the Spanish Comparative Agendas Project team. I did this on the suggestion of Frank Baumgartner and was received by Laura Chaqués Bonafont and Anna Palau; I thank the three of them. I had the opportunity to show my work at the University of Salamanca, for which I thank Guillermo Bóscan, Pablo Biderbost, Giselle de La Cruz and Sebastián Linares. I benefited greatly from the academic conversations and leisure times with several of my colleagues and friends in Mannheim. I especially thank Dirk Hunge, Julia Proske, Lars Mäder, Markus Bäumman, Michael Stoffel, Nicole Rae Berg, Shaun Bevan and Henning Best, who also gave me the opportunity to work as a postdoc at the University of Kaiserlautern under his supervision once I finished my PhD. Later I would be a visiting fellow for several years at the University of Konstanz. I thank Susumo Shikano for that opportunity, and for letting me be part of the Centre for Data and

1 This book is published with the support for the revision of the language of the Portuguese

Government, through the FCT (Foundation for Science and Technology) Strategic Funding of the R&D Unit UIDB/03126/2020.

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Methods where I learned a lot. I also would like to thank Matthew Knowles for the valuable comments on my formal model and data strategy. My deepest gratitude also goes to my family and to a very special group of people. They read, commented, discussed, disagreed, annoyed me and made me laugh so many times while discussing my dissertation and matters related to it (also about other topics). Some of them I have known for a lifetime, some I have got to know more recently, most of them are my co-authors, all of them made me be better and made me write a better dissertation. But more than the amazing, diverse and personal features they all have, they are my friends and I am lucky to have these amazing academics around me, that share with me life principles. They read my dissertation in several stages of its development, and I believe that it was quite a painful experience, so thank you for that and for fighting my fights: Alice Cunha, Célia Belim, Daniel Stockemer, Martin Gross, Pedro Estrompa, Sebastian Koehler, Tanja Dannwolf and Teresa Ruel, you are great! My parents, Maria Antónia and Odílio, have been a constant source of support and care. As trite as it sound, every day I value more their ability to let me follow my path, most of the time with a smile. To be born and raised in a home full of love and to have my parents’ values and strength as an example has been a privilege. My parents have been my rock and my wings. I would like to thank my love, my friend and my companion, Sebastian: I could not hope for a better person to have at my side. Today I am a better academic and person than I was before I meet him. The last four years together have been a rollercoaster, as life gave us a better present that we could hope for: Maria Catarina, our daughter. I thank her for reminding me every day what is important in life and what is not, and for all the love she carries in her eyes when she looks at me.

CONTENTS

1

Introduction

2

Executive-Legislative Relations and Legislative Process 2.1 Political Institutions and Procedures 2.1.1 Institutional Procedures 2.2 Legislative Studies and Bargaining Models 2.3 Executive-Legislative Relations 2.4 Chapter Final Remarks

9 17 21 23 30 33

3

A Formal Model of Executive Law-Making 3.1 A Formal Model of Executive Law-Making: The Setup 3.2 Solving Model 1: Paths 3.3 Solving Model 2: Scenarios 3.4 Chapter Final Remarks

35 39 43 53 58

4

Characterisation of the Portuguese Case 4.1 A Starting Point: The Constitution of 1976 4.2 Institutional and Political Bodies 4.3 Law-Making in Portugal 4.4 Portugal: An Outlook 4.5 Chapter Final Remarks

61 62 64 71 74 79

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5

The Construction of the Database 5.1 The Crafting of a Database 5.2 From Conceptualisation to Measurement 5.2.1 Dependent, Independent and Control Variables 5.3 Descriptive Statistics of the Database 5.4 Chapter Final Remarks

81 83 86 87 98 106

6

Empirical Implications of the Formal Model 6.1 Testing the Theoretical Predictions of the Model 6.2 Chapter Final Remarks

109 110 124

7

Conclusions: Executive-Legislative Relations and Policy-Making

127

Appendix A: Interview Transcription A.1 Interview to Francisco Pinto Balsemão

135 135

Appendix B: Utility Functions per Actor B.1 General Game Tree and Actors’ Utilities B.2 Solving Utility Functions per Actor (Backwards Induction Order)

143 143

Glossary

153

References

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Index

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LIST OF FIGURES

Fig. 3.1 Fig. 3.2 Fig. 3.3 Fig. 3.4 Fig. 3.5 Fig. 3.6 Fig. 3.7 Fig. 3.8 Fig. 4.1

Spatial model of policy positioning: government, majority in parliament and president (example 1) Spatial model of policy positioning: government, status quo, majority in parliament and president (example 2) Spatial model of policy positioning: government, status quo, majority in parliament and president (example 3) Spatial model of policy positioning: government, majority in parliament, status quo and president (example 4) Spatial model of policy positioning: government, majority in parliament, president and status quo (example 5) Spatial model of policy positioning: status quo, government, majority in parliament and president (example 6) Government’s legislative decision-making in extensive form with sub-game perfect equilibria—Executive Law Government’s legislative decision-making in extensive form with sub-game perfect equilibria—Government Bill Legislative process in the Portuguese government (Source: Official documentation from the Portuguese parliament). (∗ : The president may veto the proposal, and when and if that happens, the cabinet has to end the proposal, change it and submit it again. The alternative to this last step is to present it and propose it via the parliament.)

45 46 47 47 48 48 49 51

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LIST OF FIGURES

Fig. 4.2

Fig. 5.1 Fig. 5.2 Fig. 5.3 Fig. 5.4 Fig. 5.5 Fig. 5.6 Fig. 5.7 Fig. Fig. Fig. Fig. Fig. Fig.

5.8 6.1 6.2 6.3 6.4 B.1

Legislative process in the Portuguese parliament (Source: Official documentation from the Portuguese parliament). Common Legislative Process (∗ : When a proposal arrives at this stage it can follow two different paths: either it returns to the registration, and numbering, or it is rejected and can make the same path as before.) Total of government bill initiatives and executive laws (1982–2009) Total of government bill initiatives and approved government bills (1982–2009) Government bill initiatives and executive laws, per legislature (1982–2009) Government bill initiatives and approved government bills, per legislature (1982–2009) Boxplot of government bill initiatives and approved government bills, per legislature (1982–2009) Boxplot of government bills and executive laws, per legislature (1982–2009) Boxplot of strategic government bills and executive laws, per legislature (1982–2009) Types of legislation, per legislature (1982–2009) Interaction effects of the logit model (i) Interaction effects of the logit model (ii) Interaction effects of the logit model (iii) Interaction effects of the logit model (iv) Government’s legislative decision-making in extensive form

73 100 101 101 102 103 104 105 105 113 114 116 117 144

LIST OF TABLES

Table 2.1 Table 3.1 Table 3.2 Table 4.1 Table 4.2 Table 5.1 Table 5.2 Table 5.3 Table 5.4 Table 6.1 Table 6.2 Table Table Table Table Table Table Table

6.3 6.4 B.1 B.2 B.3 B.4 B.5

Theoretical and conceptual framework—synthesis Actor’s basic utility functions Possible scenarios with the government, the majority in parliament and the president Legislatures and prime ministers in Portugal (1980-2009) Legislatures, presidents and vetoes in Portugal (1982-2009) Variable name and identification of data, Executive Laws and Government Bills (1982–2009) Possible scenarios per legislature and actor Coding number and respective topic—comparative agendas project General descriptive statistics Logistic regression estimates: Model 1 (el_gb1, str, maj, min, wea) Logistic regression estimates: Model 2 (el_gb2, str, maj, min, wea) Summarised results of hypotheses testing Logistic regression (independent and control variables) Actor’s utilities: general Actor’s utilities: strong government scenario Actor’s utilities: majority government scenario Actor’s utilities: minority government scenario Actor’s utilities: weak government scenario

34 40 54 75 78 89 92 97 99 112 113 117 119 145 146 147 148 149

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CHAPTER 1

Introduction

Abstract In this introduction, I present the main topic of this book, which is government legislative power and respective strategic choice of legislative path and legislative instrument. This choice happens while considering other institutional actors like the parliament and the president. I ask: Under which conditions is a government more likely to present an executive law or a government bill? I answer this question with a theoretic argument defined and solved in a formal model that is further empirically tested with Portuguese legislative data. Keywords Government • Parliament • President • Legislative path • Legislative instrument

The study of governments is one of the most common topics in political science research. Governmental actions are relevant because they affect the way societies function. Although analysing government institutional settings seems to be straightforward, it is still unknown how it is that many aspects of the decision-making process, at the core of governmental behaviour, work. This book addresses the executive-legislative relations within the decision-making process of governmental initiative proposals. Especially addressing parliamentary and semi-presidential systems, this book sheds light on the way institutional contexts condition actors’ behaviour and strategic approach to legislative endeavours. Particularly, this © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 P. Calca, Executive-Legislative Relations in Parliamentary Systems, https://doi.org/10.1007/978-3-030-92343-3_1

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book aims at explaining governments’ choice of legislative path and, consequently, of legislative instrument (law format).1 My analysis is conducted first by developing a formal model2 that explains actors’ interactions in a given contextual setting, and second by testing the predictions of the model with data from Portugal.3 More specifically, I ask: Under which conditions is a government more likely to present an executive law or a government bill? I adopt the assumption that politicians act with the aim of being reelected, as defended by Mayhew [182, 49]when stating that “congressmen must constantly engage in activities related to re-election”. One of the central actions for governments to be re-elected has to do with the production of public policies via the establishment and approval of legislative initiatives. Yet, not all governments are the same, and nor are the measures they pursue. As Müller and Strøm [207] argue, governments will sustain consistent policy positions (compatible with constituents’ preferences) over time in order to guarantee votes. Consequently, I claim that governments use their law-making power to legislate according to their convenience. When they use their legislative power, they do it in different ways on issues of diverging relevance and within a strategic calculus that considers other actors’ preferences. These actions are directly connected to an institutional framework and considerations regarding the likelihood of approval of a given bill, while also taking into account contextual and institutional factors. For instance, with a parliamentary majority or without it, two governments in two contrasting institutional contexts will not be like Twee-

1 By strategic interactions I mean the process occurring between two or more actors that act taking into account their preferences and the preferences, and future actions, of the other actor(s). This concept is related to the idea of strategic behaviour that I consider to be, generally speaking, actors’ moves that occur after a strategic calculus of which move to make, out of the possible set of actions, according to their preferences and the preferences of the other actors. 2 This model is inspired by parliamentary and semi-presidential settings and in the future may be useful for studying other types of political systems or other cases with the needed adaptations. 3 The Portuguese case is difficult to categorise in political systems literature, and this was a major feature when choosing it for study. As an outlier, a wide range of literature defines it diversely [e.g. 68, 78, 81, 155, 252, 261]. Some of the classifications of Portugal’s system are premier presidentialist, parliamentary, semi-presidential and premier-presidential. In fact, and regardless of the centrality of legislative behaviour in Western democracies, only a few scholars have delved deeper into the study of political systems outside the US, with even fewer studying cases where the system definition provides doubt, as is that of Portugal.

1 INTRODUCTION

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dledum and Tweedledee (look and behave alike). The institutional strategic calculus of these actors and thus their behaviour will vary according to their circumstances. For instance, they might wish to avoid legislative processes that potentially cause conflict, or a minister might be tempted to legislate by decree and avoid the parliamentary floor, or it might otherwise somehow be advantageous for a minister to either present a bill or ask for legislative authorisation [163, 185]. Governmental decisions about the choice of type of legislation to propose, and thus about the path of a legislative proposal, are not always easily perceived. However, thinking within the context of a common understanding of legislative behaviour, the actors involved in this process will initiate legislative proposals that are their best options. The best options for each one of the actors will include the consideration of conditions like the duration of the process, the institutional features, and the competencies of the body that initiates the proposal. Taking this into consideration, it is hard to believe that these actors will make their moves without a clear strategy about the choice of legislative path and legislative instrument format at random.4 Thus, this book seeks to further our understanding regarding this strategic choice by the actors with legislative power, more specifically the legislative process and the institutional actions within that context. The answer to the question I pose falls in line with what was called the fundamental equation of politics [118, 224]. Two key aspects should be considered while trying to understand politics from this point of view, which is also true when attempting to comprehend legislative politics, namely: (a) actors’ preferences and (b) institutions involved. For instance, in Portugal, the decision to legislate is mostly related to executive impulse and dependent on approval by the majority in parliament. This should not 4 When I stress the strategic feature regarding the choice of legislation type, I am excluding all legislation that has as a formal requirement to be initiated by a specific actor and in a specific format. That is, there are several types of legislative acts that can only be done on the parliamentary floor and others only by the government. The legislation formally attributed to a specific institutional actor is not considered in my reasoning. The type that can be presented either in the cabinet (in Portugal usually the cabinet is also called the Presidency of the Council of Ministers-Presidência do Conselho de Ministros (PCM), that comprises all the ministers of a given government and not only some more relevant, as we usually consider when referring to a cabinet) or in the parliament by the government is the one that I consider potentially strategic. More details about the types of law I am referring to, legal setting and strategic choices by the government concerning it will be presented in Chaps. 3, 5, and 6.

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call into question the legitimacy of the system [196, 167]. The country’s institutional framework also has discordant features that show tensions and contradictions between institutions. All these features are weighed in governmental decision-making. However, in this specific case, the governmental principle of legality and the development of its administrative power occasionally produces a duplication of functions, which can interfere with the analysis of institutional powers. However, what is more puzzling has to do with the validity control of the laws, because all legislation is subject to compliance with the constitutional principle of separation of powers. But, on several occasions, the domain of the parliament is conditioned by its relations with the government [241, 11]. Based on political representation theories and political responsiveness research, looking at agenda-setting theories and delving deeper into bargaining processes and their formalisation, the analysis undertaken in this book addresses a traditional issue in an innovative manner by combining perspectives between which a dialogue does not always exist. Not all the formal modellers agree that a model should be tested. In fact, some argue that this would be impossible, and it is common for academics studying representation theories to disagree on a rational (individualist) approach to politics. However, this book adapts a formal model (a processual one) of legislative decision-making from the government’s perspective to study how this happens in parliamentary and semi-presidential systems, in this case using data from Portugal. After the theoretical approach to my puzzle, the necessary conceptualisation and literature review, I opted to produce a formal model that could help me answer my research question. I tried to manage the complexity of reality by representing it in a stylised manner. First and foremost, I established the settings, the actors and respective utility functions, the assumptions, and the cost structures of the model. I did so in order to formalise the decision-making process. By proposing a model of executive-legislative behaviour, I help clarify the institutional strategies of the government, engender a better understanding of which determinants configure a governmental legislative initiative, and contribute to the literature about political systems that defines, designates and establishes theoretical frameworks according to the political attributes

1 INTRODUCTION

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of their institutional actors.5 This model seeks to contribute to help solving old political science puzzles like decision-making processes, representative democracy powers and division of powers in democratic states. Effectively, there are few studies that deal with the formalisation of legislative processes outside the US Congress. For example, Pahre [216] argues that there is a systematic lack of formal models studying the European Union decision-making process. Furthermore, the use of formal models (rational choice approach) that I present here is also rare concerning European governments; more common are the studies about the US Congress and the courts. However, the findings in the US literature are still parochial in the sense that they are, generally, not tested on other frameworks [167, vii]. This bolsters the need for my study, which investigates other political systems. Case studies are a useful tool for testing formal models, just as the formal systematisation and empirical study of legislative decision-making is important because of the insights that they generate. I am talking about the redefinition of political systems, the process of political decision-making, actors’ behaviour, and the circumstances in which actors act [216]. The law-making process regarding the governmental decision concerning which path to follow while proposing a legislative initiative is a function of several aspects which considers contextual factors such as those related to majorities in parliament and the preference alignment of the president. These are central to the rationalisation presented in this book, it features a novel theoretical framework, provided by the formal model that I present, as well as a new database. The formal model has a government with agendasetting power, which gives it advantages in the moment of deciding how to act. The database that I use to test my model covers 27 years of democracy in Portugal and has diverse and useful layers of information (e.g. distinct legislatures, presidents’ identification with political parties and different parliamentary majorities), which permits me to have considerable variation in the data. By using this database I can credibly test my hypotheses [42]. By analysing governmental legislative proposals and their paths and thus the choice of the type of legislative instrument, I assess the rationale behind actors’ moves and I demonstrate that the status of the parliamentary majority conditions the likelihood of issuing one type of law over another.

5 For a distinct and comparative approach from the one I present in this book, see the work

[31] on the relations and conflicts between governments and parliaments in the legislative arena.

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The strategic calculus employed by the government begins by taking into consideration this aspect concerning its parliamentary support. I show that the president party alignment has a weaker effect for governmental legislative actions. In cases where the government has majority support in parliament, it is more likely to propose a government bill. Otherwise, in cases where the government has only minority support in parliament, it is more likely to initiate an executive law. This book starts with the present introduction, which is followed by a theoretical framework and literature review concerning its main topics in Chap. 2. There, I do not only introduce theories and studies with identical reasonings to the one I develop in this book, but I also present some conflicting perspectives and the necessary conceptual definitions. I present topics like political representation and responsiveness, legislative studies approaches, agenda-setting theory, literature on the US Congress, governmental behaviour, decision-making in general and law production in particular. In this section, I illustrate institutional procedures and legislative bargaining models and provide an overall look at political institutions. This overview of the relevant literature, important theories and their respective definitions of central concepts is important in the sense that it frames the development of my theory in the formal model and its empirical analysis.6 By providing an overview of the literature related to this puzzle, my intent is not to cover all the possible literature but that which reinforces and directly relates to my argument. Chapter 3 of this book presents the formal model of legislative decisionmaking that I constructed. There, I first explain the main features of the model and its setup and solutions, after which I derive propositions that lead to testable hypotheses. As this model aims to produce generalisable conclusions from its settings, it establishes itself in parliamentary and semipresidential systems that are more aligned with the institutional structure on which it is based. This is a procedural model that nevertheless addresses the strategic decision of the government to propose a given legislative initiative via one of the two possible paths to do so. Thus, the choice of the legislation type, or if we prefer of the legislative instrument, is the reflex of 6 In this initial phase I conducted an interview with Francisco Pinto Balsemão, a former Portuguese Prime Minister. The main source of information for this book is not the one derived from interviews, but the richness of this testimony gave me good research clues. Regarding the empirical analysis, I use a logistic regression which, besides the description of the data from the previously coded database, is used to test the formal model hypotheses.

1 INTRODUCTION

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the first governmental choice. Following the backwards induction to solve the game, that is the main conclusion extracted from the four scenarios created (strong, majority, minority and weak government scenarios). The equilibrium strategy that emerges is the fact that a government will be more likely to propose a government bill if it is a strong or a majority government. The opposite happens if there is a minority or a weak government because, there, the government will be more likely to propose an executive law. I decided to empirically test the model predictions, and did so using data on Portugal. In order to clarify how the Portuguese political system works, apropos of the database construction, Chap. 4 presents a description of the country’s political system. I start by introducing a general historical characterisation of the political system, respective constitutional settings and constitutional revisions. In this chapter I also identify the key political actors present in the formal model. Afterwards, I explain how the legislative process occurs. In order to establish a dialogue between the academics who have defined the system in different ways, the more used classification being a parliamentary or a semi-presidential one, I advance with more details about how these theorisations were made and how this relates to the formal powers of the actors. Finally, I give a brief description of the dispersion of mandates per party in a given legislature, for the government, and for the president. Chapter 5 is about the database. It describes the coding process, and how I defined each concept with which variables. In the end, descriptive statistics of the data are presented in order to help give a broader understanding of the characteristics of the data. This database presents new coded data from Portugal covering a 27-year period (1982-2009) and it contains 43401 observations and 48 variables. As a central contribution of this book, this database is specifically relevant because it was constructed from a theoretical basis. I first coded the dependent variable as a dummy variable with all the legislative proposals that were either executive laws or governmental bills. After that, I recoded this variable to only consider one subset of it as not all the previous proposals were considered strategic choices of the government. I then operationalised the main independent variables from the construction of the scenarios, as well as other variables that served as control variables. In Chap. 6, I present the empirical analysis. This analysis is carried out by testing the predictions of the formal model. This is realised by using a logistic regression. My four hypotheses are supported by the effects that

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I find which show how governments choose the type of legislation that is more beneficial to them. These actions are based on strategic calculations about best possible moves within a certain context and given the other institutional actors. The empirical test of the model confirms the model predictions by which strong and majority governments are more likely to propose government bills, and minority and weak governments are more likely to propose executive laws. Lastly, I offer a conclusion (Chap. 7). It reflects the findings of the book and proposes possible new research endeavours. The main contribution of this book is to shed light on the process behind the governmental choice in selecting a path while proposing a legislative initiative. As this will give rise to a choice of the type of initiative to propose, this choice of the legislative instrument is a function of the path chosen. The book puts forth the executive-legislative relations at the micro-foundations of the legislative level, as well as the strategic calculus of the actors involved. If the institutional actors with legislative power pursue their most preferred policies and “cannot legislate to the others, the government to the parliament and vice-versa” (Balsemão),7 then there is an important interaction and conscious strategy behind these actors’ moves. This book addresses this strategic calculus of institutional actors. Retrospectively, the motivations that brought me to this research are as stated by de Mesquita et al. [65, 9]: “the starting point is that every political leader faces the challenge of how to hold onto his or her job. The politics behind survival in office is (…) the essence of politics. The desire to survive motivates the selection of policies and the allocation of benefits; it shapes the selection of political institutions (…); it influences the very evolution of political life”. Yes, ultimately, this book is about political survival.

7 The full transcription of the interview with Francisco Pinto Balsemão is available in Appendix A of this book.

CHAPTER 2

Executive-Legislative Relations and Legislative Process

Abstract This second chapter comprises theories and concepts that are relevant for the framing of this book. More specifically, I address theoretical approaches related to executive-legislative relations as well as important concepts like representative democracy and political representation. Thus, the main thread of this chapter is related to institutional dynamics that are engaged by institutional political actors within the legislative-executive stage. Not surprisingly, this legislative perspective necessarily connects to policy production and respective political responsiveness, not separating the processual issues that glue together all the previous concepts. Keywords Executive-legislative relations • Representation • Policy-making • Responsiveness • Institutions and actors

The use of new techniques and tools in the classical political science puzzles and topics, like the nature of the state and political power, continues to be at the centre of the discipline’s research. Today’s political investigation incorporates diverse currents of thought and different theorisations that are

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 P. Calca, Executive-Legislative Relations in Parliamentary Systems, https://doi.org/10.1007/978-3-030-92343-3_2

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borrowed from other disciplines as, after all, political science is a welcoming discipline.1 The scientific study of politics lato sensu, regularly addresses possible combinations of two main approaches: (a) social processes and state configurations (e.g. political perceptions, electoral behaviour, political systems definition, interest groups behaviour and political representation) and (b) institutional and state organisation (such as institutional settings and bureaucracy, institutional actors’ behaviour, and state-related activities conducted by public representatives). In this book, state institutional configurations and the behaviour of institutional actors are crucial to answer my research question because of the necessary link between these two main approaches. Consequently, my reasoning is anchored on institutionalist (neo-institutionalist) and rational choice perspectives. When I talk about institutionalism, I am referring to the idea that institutions constrain the actions of political actors. From a rational choice approach, I use a formal theoretical argument in line with the rational behaviour of actors which shows their calculus about preferences and expected outcomes. The institutionalism of rational choice is inspired by the rational choice theory and by general ideas of institutionalism where both currents of thought share identical features. For instance, citizens’ preferences are fulfilled via institutional actions and the institutional setting, and behaviour is already an image of these citizens’ preferences. This is relevant when reading my arguments while defining and solving the formal model here presented as it frames my endeavours in this book. A government can be defined as “the political system by which a country or community is administered and regulated” [32], and it exists within the framing of a state. The definition of government can be conceived as an operational concept, which may give rise to empirical questions. Moreover, “being made by man, it is assumed that man has the choice either to make them or not, and how or on what pattern they shall be made. Government, according to this conception, is a problem to be worked on any other question of business. The first step is to define the purposes which governments are required to promote” [194, 175]. Directly related to the idea of state, the definition of a government may be linked, in relation to this

1 This expression was transposed from the original expression of political science as a

welcoming methodology presented by Beck [22] and used while reporting experimental studies in political science by Morton and Williams [206].

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book, to the Weberian notion that the state has the legitimate monopoly on force and coercion [281]. Likewise, this concept was used by other authors like Althusser [8], Gramsci [104] and Clastres [52], in other contexts but with the same undertone. To govern implies a consensus and a mutual agreement between represented and representatives. In line with authors like Hobbes [119], Rousseau [247] and Arendt [12], it is important to think about how these two aspects–coercion and representation–frame governmental action. I am referring to a state that comprises a democratic government where the exercise of political power entails the “strength of the Law” [113]. Meaning a democratically legitimised government. Generally, a government is considered as the institution that pilots a ship following a predefined direction, as St. Thomas Aquinas and, a few centuries later, Karl Deutsch would define [176]. Sartori [251] also contributes to the debate on the definition of government. He argues that democracies do not obliterate the old distinction between those who represent and those who are represented. State decision-making processes studied in works such as Easton [80]2 with the black box conceptualization, would substitute more descriptive approaches, enabling the analysis of this topic in a more dynamic perspective. Specifying institutions, their executive behaviour and how the legislative branch conditions it, Sundquist [271] writes that if there is a divided government there will be an immobilisation within the normal functioning of the state. This should happen as the government and the parliament try to discredit each other by blocking the other’s initiatives. Under this line of reasoning, another argument would be presented, in 1991 by Mayhew. The author argues that the characteristics of a particular law

2 The type of study that David Easton entails is a break with past studies that were carried out with a more descriptive focus on administrative aspects of the state [112]. Decisionmaking processes had their initial impetus at the judicial level. Some early studies analysed the way judges’ backgrounds and personal features (e.g. race and gender) could influence their decisions. This approach can be traced back to the study by Pritchett [236] on the Supreme Court of the United States. The author carries out an in-depth analysis of the decisionmaking process in courts, the behaviour of judges and how this conditions the public policy issues. Later works on decision-making would develop and criticise this approach. However, Pritchett’s work is still relevant because it is the basis of various congressional studies on decision-making (for a broad perspective on the decision-making process in the judicial field see Heise [115]). Being an inspiration, these classical works at the court level present a distinct reasoning when compared with topics like political representation, social contract, voters and politicians in office, which are main issues in today’s congressional research.

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matter more than the total number of approved laws in respect of the actors’ preferences. However, the use of specific cases had already been seen before his seminal work of 1974 as an important example of how to analyse a case study and managed to influence scholars in several ways. One of which is the questioning of the patterns of behaviour to expect from legislators if one assumes that they are, essentially, concerned with their re-election. In fact, this rationale is a very well-established argument in the political economy literature and it is an assumption that this book shares. It captures an a priori dimension that the government strategically considers re-election perspectives before making a decision. Most studies dealing with this perspective present game theoretical approaches, in one way or another. One of these illustrative cases is the work by Black [28]. Here, the author models legislative behaviour and how it gains new dynamics when considering interactions among actors. Essentially, this study is centralised on the rules of majority voting in committees and how to achieve these results following an interaction between the individual and the collective alternatives. Influenced by Black’s work, research was subsequently carried out on the problematic of legislative processes and institutional structures. Often looking at how agenda changes of large institutional actors and how this affects the legislative outcomes, these investigations also anchored their reasoning on the agenda-setting studies [e.g. 18, 93, 255, 273, 282]. Executive-legislative relations necessarily relate to concepts of representative democracy and political representation by incorporating the rationale that voters delegate their sovereign power to their representatives. I shall assume that representatives represent their constituents’ preferences, and the main reason to act in accordance with their constituent’s preferences is to be re-elected. The current ideas of representative democracy originate in past philosophical and political notions, whose roots can be found in classical texts. As Pitkin [223] notes, ongoing theories, mostly concerned with standards for representative legitimacy, are still heavily centred on the works of classical theorists like Burke, Rousseau and Mill. Yet, possible conceptualisations of political representation can be contradictory and present diverging features among them. Examples of contrasting and diverse definitions of political representation can be found in the severe critiques of Rousseau, “is nothing but the exercise of the general will can never be alienated and that the sovereign that is nothing but a collective can only be represented by itself. Power can well be transferred but not will” [247, 57] or in Edmund Burke’s perspective that “your representative

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owes you, not his industry only, but his judgment, and he betrays, instead of serving you, if he sacrifices it to your opinion” [36, chap.13, doc.7]. A definition of representation that better fits the ideas present in this book is the following: “the making present in some sense of some thing which is nevertheless not present literally or in fact” [223, 8–9]. One may state that political representation happens when a given political agent stands for and preserves the preferences of others–her constituents–and acts and speaks on their behalf. Because of this concept’s relevance and centrality, the study of political representation3 has been developed within political science literature. For example, Strøm [267], essentially dealing with parliamentary systems (by opposition to presidential systems), argues that inefficient accountability of parliamentary democracies can be a major threat to the effective functioning and continuation of this type of system. Other studies on political representation propose the existence of political responsiveness,4 especially focusing on the preferences of citizens about relevant issues [269, 9]. The core of political responsiveness is thus the positioning of legislators concerning specific questions and how their constituents perceive this. The link between political representation and political responsiveness, legislative behaviour and electoral results, is further presented by the ideas of Mayhew [182], Fenno [92], and Polsby and Schickler [226]. Broadly, these studies attest to a democratic theory while defining a strong and direct connection between representatives and represented.5 The electoral character of political responsiveness and its connection with the study of law-making is particularly deepened in research about the US Congress [10]. The dyadic relationship between politics (i.e. enacted policies) and electoral results is at the centre of the notion of political responsiveness. In most literature, this link between representatives and constituents is straightforward. Also, delegation is necessarily connected with representation, being a fundamental premise to this relationship that underlies the

3 On this topic see the interesting and informative approach of Strøm [267] when defining the accountability of the representative chain: people –> parliament –> government. 4 In general, the idea of political responsiveness is similar but not identical to the definition of policy responsiveness or legislative responsiveness. Nevertheless, in relation to my argument in this book they address identical issues and here refer to how politicians are responsive to their voters. 5 For a broad literature review on the study of representation in democratic displays see Burstein [37].

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behaviour of legislators, their calculus concerning office maintenance, and how these actions reflect their constituents’ preferences [e.g. 86, 125, 131, 215, 266, 285]. As stated above, the idea of political responsiveness in this book may also be broadly defined as policy responsiveness, for the sake of simplicity and with regard to our main arguments. Nevertheless, for the general literature on the topic, policy responsiveness is more specific than political responsiveness. For instance, this happens in studies, like Hogan [120], where the main argument deals with the outcomes of specific policy decisions. Public officials may be directly rewarded or punished in elections because of a specific enacted policy. The author shows that even in a low-information6 environment, policy responsiveness, especially when combined with campaign spending, has a significant effect on re-election. Mostly centred on the US Congress, other studies found evidence that policy responsiveness plays an important role in incumbent re-election. High re-election rates of incumbents in the US Congress is an issue as yet not completely disentangled and it is hard to bridge a causality between their incumbents’ behaviour and rewards at the polls. Nevertheless, the information that constituents have about the activities of congressmen and possibly about available alternatives, and how costly this is, may affect the re-election of a given politician. Although there is a responsiveness to the policies enacted by a given congressmen, it is not always clear how this process occurs [1, 47, 85, 87, 120, 134, 184, 184, 253, 286, 290]. It is not the purpose of this chapter to explain how the political and policy responsiveness processes occur, but rather to call attention to a broad range of studies dealing with this concept, as it works as an assumption to my argument. Most of the studies on this topic seem to point to a very general concern to mandate evaluation and responsiveness. Thus, one of the primary objectives of a government would be to pursue policies that necessarily lead to some accountability, at least at the electoral level [9, 33, 231, 287]. In principle, executives’ actions take into account constituents’ preferences (such as considering public opinion); however, 6 As the voter does not know the enacted policies in detail, the information about a particular law does not unfolds the necessary information to the voter in what regards legislator’s competencies. Otherwise, the voter obtains her information from the knowledge released by other actors who have and share more details about the incumbents. Thus, it can be said that voters probably will not pay too much attention to the voting record of incumbents, party activists or financial contributors [120, 860].

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the idea of a reciprocal nature of collective responsiveness may question the reciprocal policy linkages existent at that dyadic level [e.g. 117, 126]. In fact, the responsibility that elected officials have concerning the citizens of a given country, and how they can be held accountable for their actions while in office, may have some limitations. Broadly directed at the quality of democracy evaluation, Powell Jr. [234] argues that democratic responsiveness is a complex idea. Grasping this concept is not straightforward and this happens especially because of causality aspects. When referring to the chain of representation, the author argues that public opinion and public policy are not directly related. For Powell Jr. [234], public policy is constrained by the institutional setting of the country. For my book, which does not directly deal with public opinion influence in government political decision-making, the part of this argument that serves my reasoning has to do with the possible institutional constraints of the decision-maker. In my model they are present in the format of costs of certain moves. Additionally, and even not taking into direct consideration the public opinion aspect, I incorporate this via a parameter dealing with electoral awareness. Other limitations concerning political responsiveness are presented by Soroka and Wlezien [264] when describing a representation model, and by Hurley and Hill [127] when dealing with policy issues.7 Increasing criticism has come to light because most of the research dealing with political responsiveness mainly focused on a single dimension. This discernment became even more notable in the writings on policy congruence.8 The relationship between legislators’ positions on issues and their constituents’ opinions on those same questions–policy congruence– has driven several lines of research.9

7 A more in-depth debate on the restraints of the idea of responsiveness in the terms I have been talking about is present in Manza and Cook [177]. 8 As similar concepts to political responsiveness, policy congruence and political congruence are more fine-grained notions when they deal with the relation between the policies enacted by the executives and voters’ preferences [e.g. 233], and it is one of the most general perspectives developed in the field of legislative politics like Richardson Jr., & Munger [244]. 9 For instance, Miller and Stokes [195] compared the results of district opinion polls to representatives’ roll call voting records in order to assess the strength of the correlation between them across three issue areas (social welfare, foreign affairs and civil rights). Contrary to the expectations of representation models, which predicted high levels of congruence, the two authors found that the relationship between the positions of legislators and constituents was positive, but relatively weak. In their study a variation by issue area is visible. Because of this positive but variable correlation, other studies attempted to better deduce this relationship

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Nevertheless, the study of policy congruence is still deficient in its conclusions, even with the previous contributions. That essentially occurs because it concerns the explanation for legislators’ actions based on their own and their constituents’ preferences, but it disregards other possibly relevant points. For instance, central features related to law production and the actors involved still need to be incorporated in the analysis. Likewise, along this line of thought Hall [109] argues that, in relation to the US Congress, legislators are accountable not merely concerning “how to vote”, but also “how to act” and “how to disperse their activities among several issue-areas”. It is with this in mind that these legislators will make a strategic calculus of weighting their own most preferred policies and the most preferred policies of citizens. As the main literature discussed in this chapter looks at institutional dynamics in politics, it helps explain the legislative behaviour of major political actors such as governments, parliamentary groups (political parties in parliaments or assemblies) and presidents. Actually, in the background of this book are always typical questions such as “Who gets legislation passed?”, “Which kind of laws are approved?” and “How are they accepted and implemented?”. Broadly speaking, I consider the classic Lasswelian idea of “Who gets what, when and how?” as guidance in the choice of research that helps me find the bases for the formalisation of the decisionmaking model that I present here, as well as its respective empirical testing. The attempt to understand “how” and “why” governments initiate legislation (i.e. to profess public policies) does not occur without this need to establish a dialogue with the vast and ambivalent scientific production about the behaviour of governments and how it constrains re-election prospects and political dynamics. In this chapter I refer to major contributions to several topics of political science that are relevant to my argument. I also define the concepts that will be used in developing my reasoning. This chapter is structured as follows. First I look at political institutions and procedures and examine the relevant points of this literature. Second, I present major legislative studies and

between the variables. Examples are the works of Jewell [133] and Bernstein [26]. In both cases they generically deal with the direction of these variables’ relationship. Other perspectives are analysed within this broad frame, for example concerning the structure of congruence [54, 186], dealing with electoral factors [96, 152, 270], taking into account the role of certain types of legislation and their orientations [135, 154, 187], and regarding the time of election, i.e. proximity to the next election [153].

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bargaining models as a relevant branch of political science. Third, I discuss executive-legislative relations. Finally, I end the chapter with concluding remarks and present a table synthesising the major actors and theoretic approaches used.

2.1

POLITICAL INSTITUTIONS

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PROCEDURES

Political institutions are central to the organisation of the state for structuring social life. Goodin [103] defines institutions as producers of codes of order that permit actors to behave suitably in a society. Similarly, the notion of institutions is based on the standard idea of legitimate behaviour. Institutions are also the rules that determine ordinary aspects of citizens’ lives, contributing to generating a common feeling, and an expected and trustworthy behaviour of citizens in a given community [178]. Community behaviour here means the normal, reasonable and responsible behaviour of individuals in a given society. For example, citizens’ political behaviour, the behaviour of elected representatives, public managers, judges and other institutional actors [178]. It is within an institutional framing that I develop this book; a theoretical and empirical understanding of which political institutions are at stake is crucial for my reasoning here. Political institutions are used to provide help in understanding politics, broadly, and the micro-foundations of politics, more specifically. Not only do political institutions and respective procedures contribute to frame actors’ behaviour, they help clarify the processes related to their preferences, as well as policy outcomes of decision-making. While looking at the choice of legislative path for a government proposal, as I do in this book, it is essential to understand the institutional setting and its dynamics, and likewise the respective actors’ powers, to comprehend the actual proposals. Among several possible classifications that institutions may make, in order to understand which kind of institutions can be studied in the light of which methodologies, making a distinction between (a) structured

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institutions10 and (b) non-structured institutions11 may be useful when studying their characteristics and functioning. The differentiation between structured and non-structured institutions is relevant to my argumentation as it helps me to identify the aspects that a specific institutional setting, in this case governmental behaviour, produces with certain types of outcomes being structured in a certain way. For instance, the final documentation production that can be used, formal organisation, or behavioural processes. For political science, central to the institutionalist approach is the idea that “the institutions of politics provide a larger part of the explanation” [72, 7] and that different policy outcomes reflect differences of interests and preferences, and thus different political paths [109]. However, the actions of political actors are not only the result of actors’ preferences, but also the product of institutional variance. The way institutions and actors interact allows reasoning to be made regarding the dynamics of institutional direction, that is, the path of this book. The dynamic features of institutional analysis were developed in an attempt to reduce complexity for the sake of feasible research. In the last few decades, academic work has developed towards the rational choice approach when dealing with political institutions. Though still complex, diffuse and somehow unpredictable [256, 24–26], mostly because of the diverse characteristics of political institutions, investigation from the rational choice angle has gained space in studying this topic [167, 6–7]. The progress of this kind of study mostly occurred in the analysis of the US Congress, using social choice theory, game theory and spatial modelling, and inspired by New Institutionalism ideas.12 However, the first studies 10 Structured institutions are the institutions that are more congruent and thus more predictable to analyse. This primarily happens because they produce official documentation, from which one can deduce specific and concrete information. A good example of this is official documents of a given government and the policy preferences presented there. With an established modus operandi, this institution’s payoffs are clearly identifiable. I refer to payoffs as the compensation that the actors derivate from acting according to their preferences while interacting with other actors. 11 Non-structured institutions are more adequately studied while using the rational choice perspective that tries to optimise individual decisions in a strategic environment. Nevertheless, and because this is a more fluid context, the empirical analysis of this type of institution has to be anchored on other types of documentation and cases, distinct from the pure formal types like the actors’ perceptions in interviews. 12 This is an expression used since the work of North [210]. For more detailed information about the new institutionalism in political science see Hall and Taylor [108].

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about the US Congress based their argumentation on attitudinal and individual behaviour data, that is, on how its members behave, what they think about certain rules, or how they adapt to their environment. These seminal works essentially had a sociological background [e.g. 90, 141, 181, 279]. Analysis combining institutional and rational choice perspectives are less common, especially in the initial phase, than the descriptive and purely empirical ones. In fact, in the last few decades the theories and approaches concerning the US Congress developed a broad range of possibilities, from gatekeeping theories, with Cox and McCubbins [61] defining “a veto without an override provision” [148, 116], to the ideas of a negative control of the agenda, producing effects in the change of a given policy [53, 459]. Or, developing pivotal theory, advanced by the studies of Krehbiel [147] and Brady and Volden [29], stating that policy change exists when a given policy is able to pass several veto-players [209]. Levered by the emergence of the new institutionalism theories, two political science visions were congregated: (a) the notion of bounded rationality and (b) the rational choice perspective. Having originated in the neo-classical economic perspectives [262, 263], new institutionalism only later started to have a greater impact on political science.13 Still, in the rational choice outlook, other specific aspects can be underpinned such as how actors’ reputation features play a role in the institutional settings [151], regarding signalling games and information [265], in line with corporate culture [150], or methodologically driven about the data-scaling of individual roll call votes [228]. At the same time, some other writings placed the new institutionalism within other theoretical approaches, with the institutional school of organisational sociology being an example [57, 179, 193, 232]. Shepsle and Weingast [259] reasoned that the first developments of the new institutionalist perspective were made when trying to comprehend the stability and incrementalism of congressional decision-making. The tools of social choice theory were used as an approach to studying institutions, as previously argued by Ferejohn and Fiorina [94] and Tullock [276], who defended that events like predicted cycling majorities, agenda manipulation or non-equilibrium outcomes were not the best ways to look at institutions. They focused more on institutional and procedural

13 On the debate on the importance of institutionalism and the new institutionalism for the political science approach see the discussion presented by Bendor et al. [23].

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restriction approaches that could produce stable and definitive outcomes and legislative deliberations, and this is also the major framing logic of this book. The three authors defended that these situations were more coherent with the right approach to institutions. The previous logic, together with literature on collective goods and institutionalism, played a relevant role in the development of the new institutionalism (e.g. Shepsle and Weingast [258], Weingast [283], Weingast and Marshall [284]). The discussion above brings us back to the ideas of North [210] based on the rational choice perspective. His argumentation considers formal theory, empirical research and the political economy approach, relevant tools for the study of institutions, broadly defining it as new or neo-institutionalism. Institutional behaviour is influenced by politics and sculpted by economics, and the role of institutions and their relevance are central to the study of political events, but also how states and economies perform and how institutional preferences translate to institutional practices. North [210] re-centres the significant aspect of politics–by opposition to the behavioural revolution–in political institutions. He evaluates how particular institutions affect the countries in which they exist by examining their efficiency. Additionally, he considers the necessity of a conceptual use of expressions such as strategic behaviour and strategic interactions when addressing actors’ behaviour to explain macrolevel political events. In other words, using micro-level features to explain macro-level occurrences is central to a new institutionalist approach to politics. The design of institutions has also been an important topic of analysis when studying actors’ behaviour as they also intend to influence institutional design and its settings. The design of particular institutions conditions the way they function and how actors behave within their framework [84, 123, 160, 230, 289]. In comparative literature the works of Moe [200, 201] and Knight [143] argue that there are additional problems for the study of different institutional settings in distinct countries and using comparisons. The main difficulties in the ability to generalise findings from few cases are not fully solved with the addition of new ones, and this is reflected in works like Shugart and Carey [261] and Cameron and McCarty [45] on corporatist structures. About central banks, see Alesina and Summers [7], Hall and Franzese [107] and Iversen [129]. On the differences between democracies and dictatorships, see the works of Przeworski et al. [237] and

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Przeworski and Limongi [238]. And on electoral systems, legislatures and their structures, Tsebelis and Money [275].

2.1.1

Institutional Procedures

A large body of research on bureaucratic policy-making has been developed over recent decades. At the macro level, the effects of bureaucratic procedures is also relevant for defining decision-making processes. This is true for a broad range of typologies and system classifications, for instance how presidential regimes work in a different way to parliamentary systems.14 In the latter, governments are usually tasked with regulating political powers but not with defining the legislative agenda. Nevertheless, the praxis concerning this aspect is not as clear cut as it may seem at first glance. It can happen that a given government has greater control over the congressional agenda, managing to be successful in the approval rates of its most preferred policies. Similarly, policy-making under presidential systems is not always centralised [63, 175]. In fact, when looking at crosscountry comparisons, there is a differentiation between countries that have governmental ascendancy over the legislative initiative via the control of the party(ies) in office, in contrast to situations where a minority government holds office and needs a parliament that functions as a pivotal actor [240]. In addition to these previous studies on bureaucratic and policy processes, there are other lines of research dealing with how the behaviour of executives may be driven by organisational aspects, for instance on the political ability of the actors as researched by Lowery and Gray [171] and Gray and Lowery [105]. On institutional reputation and credibility, like Hansen [114]. Or, on analysing competition for resources among actors, see Aldrich [3]. Cross-country comparisons of distinct bureaucracies have also been developed, not without problems but with an empirical effort for testing formal models, such as Hallerberg and Döring [111]. Studies have also been conducted on how elites’ and interest groups’ behaviour influences bureaucratic policy decision-making as seen in the work by Lowery and Gray [170], Hall and Deardorff [110] and Baumgartner et al. [20].

14 For a comparative evolution of legislatures in Western Europe, more specifically

concerning two procedural ideal types where governments control the agenda or when powerful committees control it, see Koß [145].

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Institutional procedures incorporate several structural characteristics typically stemming from discussions about the process of separation of powers, transaction costs or the delegation of powers [174, 683]. In fact, the last dimension regarding the delegation process within policy-making has been central in this branch of the literature. How actors choose to delegate their powers and when they choose to not legislate in certain areas are examples of the use of strategic instruments to better attend to their preferences. Bureaucratic processes of delegation within political institutions have gained renewed importance, and the US Congress has been widely used as a case of analysis. How can policy-making delegation to the executive imply transactional costs for the opposition if a given policy emerges without the occurrence of this delegation process? US Congress members, in general, will prefer to initiate a policy that is in accordance with their preferences, unless the costs of action are too high for them; in that case, they will prefer to delegate their legislative power to the executive [84, 6]. Epstein and O’Halloran [82, 83, 84], Gailmard [101], Huber and Shipan [123], Volden [277] and Huber and McCarty [122] are good examples of the production in this topic. More specifically, some of the first studies within this framework created a bridge between two major bodies of literature on legislative studies: (a) studies on the US Congress (congressional bureaucracy) and (b) investigation on legislative organisations. The main factors that may affect delegation decisions include relevant contextual aspects such as a unified or divided government–affecting the cost structures of the actors involved–and this type of delegation is directly influenced by electoral reasons that play a role in delegation prospects [2]. Still, dealing with the problematisation of institutional procedures, McCubbins et al. [188, 246] wrote about administrative factors as crucial to the institutional decision-making process. While analysing regulation, McCubbins and Schwartz [189] show that the established regulation usually works in favour of incumbents and acts as a sort of political control. McCubbins et al. [188] have also demonstrated that administrative legislation functions as a mechanism that, when used to control bureaucracy, allows policies to be produced that are close to the preferences of those in control. The authors argue that structuring institutions in particular ways permits political actors to contain the bureaucratic framework according to their preferences. Legislators use law production and the bureaucratic procedural setup to achieve their desired outcomes or outcomes closer to their preferences.

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The study of decision-making processes, within a given context, was also developed through the use of formal models. The major aim of formal modelling lies in the point that just a few–the essential–aspects are used and modelled, in order to look for causal mechanisms [69, 31]. The main objective of this kind of approach is to develop a general theory of politics that tends towards a similar argumentation to the general equilibrium theory developed by economics researchers. The most wellknown models that share this philosophy are based on how a subject relates to mathematical modelling of political events, for instance regarding committees [28], and how elections can be modelled, going back to Downs [73], and addressing coalition politics [245], how agendas are established [89] or how legislators scrutinise and amend legislation [180]. As a main and common feature these studies present a clear institutional analysis.

2.2

LEGISLATIVE STUDIES

AND

BARGAINING MODELS

Legislative studies analyses address the legislative behaviour of institutional actors and include several theoretical approaches that are central to my argumentation, namely rational choice and institutionalism. Legislative studies have been gaining credibility over recent decades due to the stronger interest of the discipline in this aspect, but also because more cases have been analysed. The bargaining models that come with the study of legislative realities have necessarily became highly relevant. If politics is the art of negotiation, the necessary bargaining reality, when considering the proposal of public policies, with various actors and possible vetoes, is increasingly a focus of the analysis. While I address the executivelegislative relations within a given legislative setting, it would be quite naive to set apart the bargaining amongst the different actors. As I propose a model that is processual, the preferences and moves of political actors, the institutional setting in which they co-exist, and the context of mutable political settings must all be taken into account to understand the government’s choice of legislative path. Once politicians are in office, they intend to maintain their position of power. Seminal works like Downs [73], expressing the idea that politicians– and political parties–have office-motivated reasons for pursuing certain policies, were followed by Mayhew’s work and his assumption that politicians seek re-election, which has often been used in theories of legislative decision-making. There is a relevant connection between legislation pro-

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duction and re-election prospects. It is known that incumbents have electoral motivations when proposing laws. On the previous reasoning, also Fenno [91], when researching the motivation of politicians in office, argues that in addition to the re-election prospects, some politicians are also concerned with policies. In 1978, Fenno would reinforce his previous argumentation when investigating the link between representatives and their constituents and giving particular emphasis to the primary constituency. There is a clear advantage of incumbents over other candidates who had never invested in this relationship before [92]. Over the following years these ideas of Fenno have been developed by other authors such as Hall [109] and Erikson and Wright [88], who studied the ideology of politicians and its effects. Or more specifically, the fact that ideology influences the voting behaviour of Congress members. Later, Ansolabehere et al. [11] would also look at the ideological positions of candidates for the US House of Representatives, and demonstrated that ideology had a strong impact on legislative production. Other studies have been carried out dealing with legislative decision-making of Congress members but covering areas such as the policy interests and preferences of the constituency of a given member and how these influence her legislative decisions [63, 135]. Another line of research that was developed has to do with how governmental actions are dependent on their majority, or on a unified or divided government. In fact, Krehbiel argues that a divided government has a small effect on law production but that gridlock seems to happen when one party is simultaneously controlling legislative and executive aspects, which gives the other party the possibility of being pivotal [147].15 Legislative studies not only centred their major production on the American legislatures, but have also developed specific sub-areas that may provide clues for answering the central aspects of this as agenda-setting power (in this case regarding the government) that combines actors’ preferences, decision-making, per se and institutional setting features. This literature may also be an inspiration for studying governments in Europe [102], which is the case when these studies develop and provide an institutional tool-set that can help engender a better comprehension of what happens in legislatures, in general and not just in the US. Hence, the research conducted on the US Congress is used to ground my main

15 By pivotal I mean the actors who may have a decisive vote in the case of a tie.

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argument because it helps to shed light on possible mechanisms with an identical rationale. Bargaining within the legislative process is relevant to understand actors’ preferences, and thus the main outcomes. For example, Kiewiet and McCubbins [138] examined how the US president can influence congressional decisions through her role in the legislative bargaining process. Differently, Ingberman and Yao [128] study presidential influence on political agendas. Or, at the district level, Cox and McCubbins [60] show that, by looking deeper into legislative behaviour, the institutional organisation of the House of Representatives is related to representatives’ re-election prospects, with the results corroborating the assumption that while in office, political actors aim at continuing in office. The Members of the House of Representatives believe that law-making is central to the maintenance of a particular image, which may give more or less credit to politicians involved in the legislative process. Lupia and Strøm [173] analyse cabinets and how the bargaining power of political parties within coalitions works. Some perspectives in this study were furthered by the work of Diermeier and Merlo [70], who advanced a spatial model of government formation considering endogenous policies. Investigations on legislative bargaining have gradually started to incorporate institutional features, such as in the work conducted by Strøm [268]. Constitutional traits, cabinet central structures and majority status of governments also begin to be important features to consider. Several studies then started to incorporate the idea of institutional in general, [144], or institutional equilibria in unicameral and bicameral systems when compared [71]. The last study considers both, that is, cases where there is a president and cases where there is none, and finds that with more than one chamber (increasing number of chambers) there are consequent incentives for each chamber to create more complex structures and processes for its benefit.16 These studies on institutional equilibria do not focus on cabinet specificities, which, especially in my formal model, is relevant to

16 This model is distinct from the one I present and is also different from the veto-players models. This distinction happens, especially, because the decision-making process concerning the law starts with lobbyists’ moves and the way they act in order to gain necessary votes in the chamber(s). In the case of my book there is a similar logic to the veto-player models but coming closer to a rent-seeking model.

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the analysis of the institutional frame. As a possible weakness, the problems that this work entails may be reduced by using, like Merlo [192], a structural estimation approach when specifying a bargaining model of government formation despite only considering the number of chambers in the institutional setting. When in 1989 Baron and Ferejohn wrote on the bargaining process in legislatures using the divide-the-dollar game, the authors stated that all legislators intend to maximise their utilities. Their model develops the analysis of policy choices in legislatures, although as a one-shot game, providing important points as to how the negotiations on legislation happen.17 It does not examine several policy proposals over time but rather whether they are proposed or not. As a distributive bargaining model,18 the authors propose a surplus if the majority of legislators accepts a given proposal. The legislator also has incentives to accept it, because there is no payoff if she does not. This divide-the-dollar game is based on the model of Rubinstein [248] that looks at the effects of legislative structures and rules. Baron and Ferejohn [18] show that it is via the legislative processes, procedures and structures that legislators deal with the equilibrium distributions of the dollar. Even without considering the socialchoice aspects, relative to distributive politics, in the basic model, within a certain legislature, the division of the dollar by the majority rule is modelled in a single legislative session. The principal idea of this formalisation is that the legislator’s primary objective is to maximise the share of the dollar, aimed at electoral gains, more than to achieve personal advantage. Here, the legislator is worried about advancing within each one of the stages and always tries to improve her likelihood of being re-elected. In other words, one may consider that this model is about a better division of goods according to actors’ strategies. An additional development to bargaining models merged when Baron [17] studied how to include the status quo as an endogenous element in

17 As a one-shot game, this formal model shares this characteristic with the one I present

in this book. 18 A distributive bargaining model is a formalisation that deals with the negotiation and bargaining of a division of something. It is the opposite of trying to increase it. Several times, and in order to document this reasoning, the increasing of a pie (something that would be almost impossible once the pie is done as there is no possible way to increase it) is presented as an example. The idea is that the pie should be distributed by contrast to the idea that a pie can be enlarged. For more detailed information about this concept see the seminal work of Walton and McKersie [280].

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a model. The author achieves this by assuming a one-dimensional policy space that has a single-peak stage, and converging the policy outcomes to the ideal point of the median voter. For some scholars, this was a significant development, but still in need of further improvement. The enhancement of the previous reasoning was made in papers that used a multi-dimensional framework, such as Kalandrakis [137] and Battaglini and Coate [19], or by using an infinite horizon where one player presents a proposal in each of the periods [77]. Other applications of the legislative bargaining model include studies that test it with more than one case and within the comparative politics field like Persson et al. [221]. For works on federalism see Coate and Besley [55] and Lockwood [166], on intergovernmental transfers see Knight [142] and concerning legislative elections see Chari et al. [49] and Besley and Coate [27]. On legislative seniority see McKelvey and Riezman [191], or using pork barrel inefficiencies research has been done by Baron [16]. On social choice perspectives see Banks and Duggan [14] and referring to special interest politics see Persson [220], Persson and Tabellini [222] and Helpman and Persson [116]. Looking at tax expenditures the investigation of Dharmapala [67], and focusing on public investment goods see Leblanc et al. [156] are relevant. Most of these studies anchor their reasoning on a political economy framework, which is expected once formal theory has its foundations in economic thinking. When talking about legislative studies, agenda-setting is another of the concepts that came hand in hand with research in this area. The term agenda-setting means a choice of timing, voting rules and other procedural aspects of how to propose a law [61]. In a more restricted sense, the expression is considered as a primary proposal power. For instance, which of the bills will be initiated, voted on and amended [274]? Indeed, Cox [59] argues that an executive will be conditioned by a chain of vetoplayers and the economic reasons are some of the greatest concerns of the government, such as regarding budgetary institutions and economic growth. The capacity of setting the agenda is, in itself, relevant when analysing strategic interactions among institutional agents. In 1978, Romer and Rosenthal developed a model with this idea as a central premise: the agenda-setter is defined according to the institutional rules and she is at the centre of a two-stage decision-making process. This model is one of the most influential political science stylisations. It has a committee that, during the first stage, defines the agenda and initiates a legislative proposal. The law is thus offered to the legislature since, in the next phase, the

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policy will be voted on and potentially enacted [148, 115]. As a source of inspiration for several works developed in its aftermath, the model of Romer and Rosenthal [246] also inspired my formalisation here. The idea that some of the institutional actors set the agenda bears another aspect relevant to the understanding of the concept of agenda-setting, that is, actors’ preferences,19 for example which issues over policies the agendasetter prefers. Depending on the types of outcomes, the notion of agenda-setting presents several approaches and even conceptual differences according to the topic of investigation. For instance, how is the agenda-setter defined? How does she change her behaviour? What kind of interactions does she have with the other agents?20 Other studies regarding the legislative branch and its focus on policies have also been developed, being particularly relevant to the rationale of this book. Authors like Cobb and Elder [56], Downs [74], Kingdon [140], Baumgartner and Jones [21] and Jones and Baumgartner [136] pay particular attention to how the parliament defines its schedule, and this is a general inspiration for the reasoning of this book. Models of agenda-setting are relevant for this institutional understanding of actors’ behaviour. Baron and Ferejohn [18] consider that one of the legislators will be the agenda-setter and that first move advantage is visible regarding the outputs of a given decision-making process [148, 120]. The authors establish an undefined number of legislators, which would increase its complexity, but to keep it simple, it is assumed that a simple majority would be enough to approve a legislative proposal. I was inspired by this last note, and in the model I present hereafter I define that a simple majority in parliament would be enough to approve a particular law.21 Distinctive 19 I consider that a preference of a given actor in a given political framework happens from

the interaction of the actor with other actors and with the environment. For a more complete review of preference formation see Druckman and Lupia [76]. 20 Agenda-setting theorisations have been studied in-depth by communication scholars. A vast majority of them have been specifically worried about the agenda-setting reality, in general, and its interconnection with mass media. Questions regarding “Who defines the public agenda?” “How is this a reflex of a political agenda, or vice versa?” “Is the political agenda dependent on the mass-media agenda?” and “Is the latter dependent on the public opinion?” have been addressed by academics like McCombs and Shaw [185], Iyengar [130], Page and Shapiro [215] and Erikson et al. [86]. 21 In the model presented in this book, similar to the model of Baron and Ferejohn, the government is the agenda-setter and it makes the first move by proposing a given initiative in a particular format.

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from the latter is the previous model by Romer and Rosenthal [246]. This model consists of an agenda-setter, which suggests a policy that has an alternative, and proposes that there is an agent who controls the agenda. The proposal has to be approved and this approval depends on a majority. This model, which was first used in a one-dimensional policy space with a median voter, is then used in multi-dimensional environments. It offers two major contributions to the comprehension of legislative bargaining: (a) it looks at the power of the agenda-setter, in the sense that it biases the policy outcomes; and (b) it shows that policy outcomes do not just depend on the preferences of the voters, but also the spatial location of the previous policy. Agenda-setting theorisation connects with the ideas of representation and responsiveness [109]. However, the way the agenda-setting is introduced in this triangle may provoke changes in the outcomes of a given theorisation. That is, the way the agenda is established may have an impact on the responsiveness of a given actor, for instance regarding the timings of elections [269, 7]. All in all, policies arise from the agendasetter’s preferences over issues. It is in this spirit that in 1964 Lowi stated that “politics determines policies”. Thus, policies are the result of the interconnection between the actions of the elites and the political system, and it is reasonable to argue that the features of each policy create specific processes within the decision-making process [79]. Experimental studies have also dealt with legislative production and the approach has been used in three main areas, namely: (a) legislative voting, (b) parliamentary coalitions and (c) political responsiveness [75, 194]. This type of research finds its roots in the studies of the aforementioned work by Riker. The literature was complemented and developed by Arrow [13], who used a one-dimensional space in which candidates position their preferences using this setting to compete for votes [75, 198]. Some other experiments dealt with agendas and rules, the stability of the agendas, issue-by-issue comparison in the voting on legislation, or the connections between majority rule institutions and legislators’ preferences and policy outcomes [75, 199]. The debate around bargaining models of legislative decision-making is central to this book. There is a vast possibility of approaches that do not end in the models discussed above. They are relevant to the theoretical contribution presented herein if they help to frame my reasoning. The literature on bargaining facilitates the general comprehension of legislative moves, and thus in a majority of formal bargaining studies the authors

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advocate the need to look at diverse settings in order to improve the predictability of these models.

2.3

EXECUTIVE-LEGISLATIVE RELATIONS

At the core of this book are the executive-legislative relations: how the government, identically to the different parties represented in parliament, has the power to propose legislation at this stage (via its own legislative proposals but also via the proposals from the party(ies) that support the government). Or, how this government may decide to propose legislation that does not go to parliament and that needs to be approved by the president. Obviously, there are statutory requirement for diverse types of legislation, but there are some proposals that can be proposed in either one of the two paths. In these cases the choice of legislative instrument22 is a strategic decision of the government. A great deal of literature makes the case that there is a congressional dominance in the politics of structure [188, 189]. Still, the results of studies about the congressional dominance or executive dominance of the legislation remain contradictory. In general, scholars who deal with legislative behaviour have defended the existence of periods of dominance by one institution over another, and vice versa. There is a universal tendency for politicians in office to control the bureaucracy [2, 987]. Other players may enter the scene in the delegation game within the US, where the president has substantial authority over the placement of policy within the executive branch. In developing a theory of presidential dominance in the politics of structure, Moe [199, 202] and Moe and Wilson [198] suggest that the US constitutional system has established a norm of conflict between the executive and the legislative branches of the government. This conflict among sovereign institutions is visible when there is an apparent disagreement over their legislative preferences. For instance, even if it has not been evident, it could happen that the US Congress and the president do not agree upon an individual policy. These conflicts are struggles over structures, as Moe and Wilson define. In the US case the Congress is at

22 Recently Palanza [217] published a book on the concentration of power in the executive branch, in that case the president, in some Latin American countries. The author addresses legislative powers and respective choice of legislative instrument, presenting an approach somehow complementary to the one presented in this book.

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a disadvantage when dealing with executive authority because the pivotal advantage belongs to the president. This means that the presidency may retain residual decision rights, centralising control and the ability to avoid or overcome collective action dilemmas. This will result in a congressional inability to respond to the preferences of the president on issues of structure [202, 372]. Huber and Shipan [123] refer to the president as a privileged actor, whereas Lewis [160] notes her strategic advantages, as when influencing agency design, the presidency has an advantage in foreign policy affairs [160, 74]. Other actors that may be considered when investigating institutional settings are political parties. Political parties are defined as political institutions and, for instance, Pomper [227] defines them as complex organisations with a multitude of aims. Alternatively, as Downs has specified, these are groups of individuals who want to control the government [73, 25]. In parliamentary systems, parties do not just have a primary organisational task in the formation of a government, especially because of the fact that they are central in governmental actions. There is a broad range of studies which are especially descriptive and detailed about parliaments, but like the previous cases they are still lacking generalising ability and have selection problems [250, 15]. Mainly treated as exogenous aspects, the preferences of legislative parties are still uncertain because of the way these institutions function.23 Political parties are, in general, the institutions most readily identified as a part of democracies; they come across as groups that aggregate preferences and somehow institutionalise conflict in a society, as Bentley [24] theorised about groups in general. Conflict between groups in a society has the aim of controlling political institutions and their outputs. Party leaders have an interest in exercising their party’s authority over legislative office and may exercise legislative authority [60, 138]. A good example of this line of thought is shown by the work of Lijphart [161, 162]. There, the author tests the correlation between the number of issue dimensions and the effective number of legislative parties. Ordeshook and Shvetsova [213] created a model of electoral systems and how the type of society drives the effective number of political parties. In his 1998 work, Krehbiel debates the fact that parties show significance in the choice of policies. That is, the effects that a party has on a specific law are a product of its members’ individual preferences. However, Cox and McCubbins [60],

23 Descriptive studies on how political parties function do not give clear information on how to draw causal inferences about them.

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when modelling legislative parties as procedural cartels, argue that there is an explicit power of the majority party in Congress if this power has control over the legislative agenda and voting issues. Another type of literature about institutions, pays close attention to the structures of different parliaments. In 1989, Francis applied the rational choice approach in the comparison of committees and legislatures, assessing their impact on legislative production. In his study the size of the committees influences the decision-making process, and this is especially relevant concerning the costs for the actors [97, 107]. The link between rational choice and institutionalism has been deepened through this kind of research, but not without some criticism during the last few decades. There are limitations to the rational choice perspective approach. One of the most acute is expressed by Shapiro et al. [254], who defines the rational choice approach as being empirically unsuccessful. But, more than competitors, institutionalism and rational choice complement one another, also presenting an empirical perspective as in the work by Shipan [260] about parliament’s committees, chambers and presidents. The results of these studies seem to indicate that there exists a high level of professionalism in legislatures. For instance, one may expect that the committees have the advantage of influencing state agencies in the direction of their preferences, but it is not that straightforward. Even in cases where the professionalism levels of the legislature are low, they have mainly taken into consideration governmental preferences and not the preferences of the legislature [174, 692]. Nevertheless, institutional settings and actors’ actions within institutions have been fertile ground for several approaches in political science. In the model I present in this book there is a chance that the proposals made by the government are vetoed by the president. Yet, this is distinct from the veto-player theory developed by Tsebelis [274] and Tsebelis and Money [275]. There, the interaction of a given number of institutional actors, at some decision-making level, and a veto of an executive move, is a central feature. When we look at an institutional setting, we thus try to understand if there is any veto-player that would block a policy intending to change the status quo. Further, if the preference of the players for an individual policy initiative is higher than the preference concerning the actual policy, then we should see a change in policy and consequently in the status quo. Even without a formal representation of the agendasetting stages, despite having similar characteristics, veto-player theory serves as a useful tool to help us in thinking about institutions, especially

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in comparative settings, but this is not without problems and potential criticism [69, 12]. In fact, the existence of veto possibilities (even if this suspensive veto like in Portugal) enables us to study the dynamics of the interactions among players, so that veto bargaining models’ approach is distinct from the one used by veto-player theory. In veto bargaining models, the initiator of the game, let us say of a given legislation, has the possibility to see her proposal accepted or rejected like in a take-itor-leave-it scenario, when considering the player that has the next move. A seemingly simple negotiation, it deals with players’ strategic interactions and calculus. This happens in an even more visible way if one considers that the veto of a given proposal can be overridden, as happens in the Portuguese case. If there is a veto of a given proposal, it will incur differentiated costs for distinct players, in fact following these words: “in order to study the implications of any of these situations, a political analyst can modify and extend the simple models of veto bargaining to capture the critical strategic features in question. This flexibility has made models of veto bargaining an essential component in the toolkit of rational choice institutionalists” [45, 410]. Further studies have appeared about vetoes in a different branch of literature, for instance with Cameron [46] drawing attention to case studies and comparative literature. Remington [243] and Lehoucq and Molina [157] tested previously created theories on the relevance of the veto in an institutional framework. Additionally, work has been produced on veto threats, like the studies by Conley [58] and Deen and Arnold [66].

2.4

CHAPTER FINAL REMARKS

In this chapter, I revisit theories and concepts that are important to frame my book. It also reviews the critical literature relevant to my main argument that I have connected with perspectives that were influential in my reasoning. I do not aim at covering the totality of the academic production on the book’s topic, but to underline the information that is valuable in the construction of my arguments. As the perspectives interconnected herein are highly diverse, I have synthesised the relevant information in Table 2.1. This table is not extensive but sets major theories and relevant concepts, approaches, ideas and relevant authors presented up to this point.

Agenda-setting

Legislative bargaining

Legislative studies

Institutional procedures

Political institutions

Government, decisionmaking, law production

institutions; US congress; bureaucracy; rules Rational-choice; institutionalism; US congress; veto-players; agenda-setting Legislatures; law-making; Legislative process; policy; agenda-setting Choice; timing; legislation; decision-making; representation; responsiveness

Representation, preferences; constituents; parliaments Political representation; legislators; constituents; policies; preferences Political systems; coercion; representation; democracy; institutions; agenda-setting Structure; policy; neo institutionalism; veto; rational-choice; actors Decision-making; preferences;

Political representation

Political responsiveness

Main ideas

Theory/concept

Table 2.1 Theoretical and conceptual framework—synthesis

Mayhew [182], Miller and Stokes [195] Fenno [92], Polsby and Schickler [226] Powell Jr. [234] Black [28], Mayhew [182] Baron and Ferejohn [18], Shepsle [255] Ferejohn et al. [93], Weingast [282] March and Olsen [178], Shepsle and Weingast [259] Hall [109], Tsebelis [274] Shipan [260] McCubbins et al. [188], McCubbins and Schwartz [189] Epstein and O’Halloran [84], MacDonald [174] Rasch and Tsebelis [240] Downs [73], Mayhew [182] Fenno [92], McCubbins and Schwartz [189] Hall [109] Baron and Ferejohn [18], Romer and Rosenthal [246] Diermeier and Merlo [70], Persson et al. [221] Krehbiel [148] Black [28], Romer and Rosenthal [246] Baumgartner and Jones [21], Krehbiel [148] Clinton [53], Cox and McCubbins [61]

Pitkin [223], Strøm [267]

Main authors

34 P. CALCA

CHAPTER 3

A Formal Model of Executive Law-Making

Abstract In this chapter I present a procedural model of legislative behaviour. With this model, I explain governments’ choice of legislative path (between an executive law or a government bill) taking into consideration the strategic aspects of the proposal itself. Moreover, this governmental decision will not be made in isolation but rather consider other institutional actors such as the parliament and the president. Consequently, I present four distinct scenarios within which the strategic choice of the government for one or the other legislative instrument, as the type law, can be explained. Thus, I deduce four hypotheses concerning each of the scenarios. When we have a weak and a minority government scenario, the government will more likely propose an executive law. When we have a majority and a strong government scenario, the government will more likely propose a government bill. Keywords Formal model • Legislative behavior • Executive law • Government bill • Strategic choice

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 P. Calca, Executive-Legislative Relations in Parliamentary Systems, https://doi.org/10.1007/978-3-030-92343-3_3

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The central function of a government1 is to rule the state. Following Montesquieu’s classical idea of how there is state governance–the separation of powers–one can identify the existing political institutions and respective powers. For example, a parliament is the organisation that has greater responsibility in the creation of legislation. Nevertheless, in some political systems, law production is not exclusive to MPs; a fraction of the legislation may have governmental origin. Considering that the legislative power of governments exists within a strategic framework, my research question on the conditions in which the government is more likely to use one of the two major legislative paths by addressing the type of legislative instrument choice.2 The complexity of political realities leads to the need to accommodate them in a more tractable manner. Using formal models is one of the ways to do this. Analytical models–following the tradition of positive empirical theory in explaining political phenomena–can be fruitful when explaining reality as the strategic moves of actors are better captured. Likewise, these models are useful for isolating the main aspects of political interactions, seeing as they disentangle and clarify political actions and actors’ choices. Law production–leading to public policies–is a good example of where the use of formal models can contribute to shedding light on causal mechanisms and processes concerning political institutions’ behaviour. In the model I present, the government’s first move is its first strategic action. The choice of legislative path or, in other words, the strategic choice of legislative instrument is between an executive law and a government bill. This first move refers to decisions made by the government as an individual actor which affects and constrains the political outcomes of the government itself, as well as those of the majority in parliament (and the parties

1 In this book, when I refer to the government I am identifying the institution that has, essentially, executive power, and that governs and administrates the state. This happens even if some other institutions have functions and powers in common with the government (eventually at other levels of governance). 2 Further explanation about the strategic aspects of this choice will be given. I want to make clear that, when I talk about strategic choice of government, I mean legislative initiatives that can be enacted in one of the two formats of laws (executive law and government bill). The choice of the government is thus strategic because it implies a calculus and a choice. When I say strategic, I do not consider the cases where a government is merely formally obliged to initiate one of the legislative instruments, an executive law or a government bill, because there is no choice then.

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that compose parliament) and those of the president. The institutional conflict that happens in the political arena necessarily means that the interactions among institutional actors, through their strategic moves, are central to understanding their most preferred outcomes. Likewise, the way governments legislate is relevant, when looking at a specific country’s system, because there are distinct actors with different powers and various possible legislative paths and choices of legislative instruments depending on that system’s political features. The government increases its likelihood of remaining in office by using the instruments at its disposal. The non-random use of legislative power based on the assumption that politicians are office-seeking or policyseeking may then be considered a tool.3 Consequently, and in order to achieve its goals, the government proposes laws that are as close as possible to its ideal point,4 always within an interactional arrangement where the preferences5 of the other actors are taken into account (including the citizens’ awareness of certain policies). In other words, to be re-elected the government uses its legislative power to propose laws closer to its most preferred policies.6 However, it is not clear how this process happens. Political scientists have recurrently studied governmental decision-making as a black box, most of the time using distinct approaches. With the model I present here, I hope to contribute to this quest, later focusing on the governmental choice regarding the legislative instrument and consequent processual path, which will help with the understanding of this strategic calculus.

3 In this book when I talk about office-seeking I mean the cases where a politician acts in a

certain way or has as their major aim to hold office, and when I refer to policy-seeking I am referring to the cases where a politician is policy-motivated. For some in-depth reading on these two concepts, see Budge and Laver [35]. 4 By ideal point I mean the alternative that a given actor has which is unique and their most preferred. This concept has been used since Black’s work on sets of preference relations that are single-peaked. 5 In this book, I acknowledge actors’ preference formation as a given, but also as an important concept if it gives us guidance regarding agenda-setters’ actions. There are several factors that can constrain the agenda-setter, some of the most common being institutional rules and ideology. Here, ideology is defined as a set of preferences organised by some value(s) [291, 78]. 6 Here I do not consider the most preferred policies of the median voter if I assume that the government when enacting a law already takes this aspect into account in its strategic calculus.

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My model is delineated within a constitutional republic that is a representative democracy with universal, equal, direct, secret and periodic suffrage, and where the political parties organise citizens’ preferences. This state has institutional actors that represent the people and act according to a defined democratic constitution. Political power is divided into the traditional distinct branches: judicial, legislative and executive. Its main actors act strategically in several stages of the decision-making process in order to be in line with their policy preferences. Law production is a strategic key element of governmental and parliamentary behaviour. Regardless of voters’ specific motivations, I assume that policy production, and, thus, legislative behaviour, has a strong and decisive impact on the re-election of governments. As one could reasonably expect, governmental actors set their platform positions based on the grounds of voter preferences, and that is a given in my model.7 Despite considering the strategic interactions between institutional actors, and despite the fact that it is necessary to take into account the parliamentary stage insofar as it relates to law production and the democratic institutional structure, it is also relevant to consider that the first-order reasoning of this model, and motto, primarily lies with the strategic actions of the governments. The model I present herein can be compared to several models constructed in the last few decades within the legislative behaviour framework. For instance, concerning the proposals and voting on legislation, even in unicameral legislatures most models have complete and perfect information [149, 195], and, with regard to structural aspects, have a similar setting as seen in the works of Aldrich [4], Aldrich [5], Aldrich and Rohde [6], Shepsle and Weingast [258], North and Weingast [211] and Banks and Gasmi [15]. This chapter is structured as follows. First, I offer the setup of my formal model of legislative decision-making. Second, I solve the model, identifying the sub-games. Third, I present another solution of the game around four possible scenarios. Finally, I conclude.

7 In the model, I present the electoral awareness that appears as a parameter precisely because of this previous argumentation.

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3.1

A FORMAL MODEL

OF EXECUTIVE THE SETUP

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LAW-MAKING:

This game comprises three actors:8 the government (G), the majority in parliament (M ) and the president (P). It is an extensive-form game () that contains a finite set of actors (i ∈ N), a set of strategies (S),9 the actors’ utility functions (F ), and for each actor i the existence of a preference relation visible in the allocation of payoffs.10 This is a game where all actors are assumed to have perfect11 and complete information,12 and its representation is as follows:    = N, S, F , (i ) The actors’ positions in the Euclidean space13 are exogenous14 and the policy positions are fixed once they are announced. This game has two subgames,15 a full in-depth explanation of which will be presented hereafter. Basic Actors’ Utilities and Preferences In order to more precisely formalise the ideas present in my model, with the intent of later solving it by maximising those utilities, I propose the following actors’ basic utility functions present in Table 3.1.

8 In the interpretation of this game a few aspects should be considered. All the moves of the actors occur sequentially, all actions are observed by the actors before they make a new move (i.e. they are not simultaneous), and the payoffs for the actors, within each possible combination of actions, are common knowledge. 9 In the case of , the term histories is often used instead of strategies. 10 The allocation of payoffs after making a certain move according to their preferences and other actors’ preferences refers to the gains they have at the end of the game. 11 All actors have perfect information about everything that occurred in the game. 12 All the actors know the possible payoffs and strategies of the other actors. 13 The Euclidean space refers to the points of space that comprise real numbers and geometric shapes, that is, the actors’ positions can be in any of the dimensions considered. 14 The policy positions of the proposed bill are endogenous to the model. 15 A sub-game is a subset of an extensive-form game that has just one beginning node, and by that all the actors know every action of the previous actor(s).

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Table 3.1 Actor’s basic utility functions

Actor

Utility function

Government

UG (X) = ∗ − X)2 − α − C −(XG G

Majority in parliament

UM (X) = ∗ − X)2 − α − C −(XM M

President

UP (X) = ∗ − X)2 − α − C −(XP P

These utility functions are a compound of several aspects which are relevant for the development of the model. They are the actor’s ideal points,16 an electoral parameter (α),17 the law (X),18 and the costs that all actors must carry when choosing to move in a specific way. The costs presented in Table 3.1 (C) are a compound of the several costs (c) which are not fixed for each player and respective conjecture, as we can see below. Among these costs (c), I distinguish the costs of amendment (ca ), the costs of overriding or costs of being overridden (co ), the costs of rejecting (cr ), the costs of an executive law proposal 19 (cel ), the costs of a government bill proposal (cgb ), the costs of non-participation (cn ) and the costs of not overriding (c∼o ). Furthermore, I assume that the costs of overriding or the costs of being overridden are higher than the costs of a government bill (co > cgb ). I also assume that the costs of overriding and the costs of being overridden are higher than the costs of an executive bill (co > cel ) for the government, because the costs of stopping a previously presented policy will be higher than those of initiating the proposal in the first place. 16 The notation of these ideal points is X∗ for the government, X∗ for the majority in G M ∗ for the president. parliament and XP 17 Corresponding to the awareness of the electorate regarding policies, which is taken into

account by the legislators. 18 For practical reasons I assume that this law is the same as the outcome, even when I define y as the bill outcome. 19 This could mean, within the idea of rule by decree, a pejorative way of proposing laws, because this concept normally relates to acts of non-democratic rulers. One of the first examples of rule by decree was in the Roman Empire, but other several historical examples are known. This notion is related to the state of exception and it is thus related to non-usual times. If it is used recurrently, it is associated with loss of legitimacy. In the examples I show in this book this concept can be relevant when the government does not have a majority in parliament.

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Actions, Strategies and Outcomes In this model, the first choice of the government will determine the path that proposed legislation may follow. The government must decide which of the two different types of legislation are better for it, these being the executive law (el 20 ) and the governmental bill (gb 21 ). In this model, for the sake of convenience and tractability, these two law types do not have any hierarchical difference.22 This model is defined in a way that establishes the government as the institution that sets the agenda. This first-mover advantage is necessary in order to formally frame the model, allowing for a better understanding of a government’s strategic legislative behaviour. The extensive-form representation,23 which I introduce when describing the two sub-games, provides a visual representation that aids in the understanding of the model. In broad terms, in its extensive form, the model shows actors’ strategies,24 and, in the last nodes of the tree, the outcome is the strategy profile of a given actor.25 There, as in the subsequent game trees, the sequence of actors’ actions follows a distinct order. The path chosen by each one of the actors will lead to the following stages and the other actors’ moves until the final nodes. The first move is modelled as a governmental action. The government chooses an action aG from a feasible set of AG , this choice being between a bill in the shape of an executive law or of a government bill. After that move, two different 20 For a legal and empirical definition of this type of legislation see executive law in the

Glossary. 21 For a legal and empirical definition of this type of legislation see government bill in the Glossary. 22 The hierarchy of the laws is particularly relevant in the day-to-day reality, the relevance order defines legislation precedence. Higher ranked legislation has priority over lower ranked one. For instance, in Portugal a constitutional law has a higher ranking in the hierarchy of laws than an executive law. Because I am looking at the legislation that the government can propose, either in the form of an executive law or a government bill. There is no relevance in the ranking for the strategic analysis that I undertake. 23 The representation of an extensive-form game as a game tree can be made without loss of generality. This representation is even more useful in more complicated games–like this one–especially because the actors move multiple times, and that can determine (according to the solution of the game) which is the next actor to make a move. Here I specify and represent the major aspects of my game. They are: the set of actors, the possible choices for the actors, the sequence of the actors’ moves and the payoffs of the actors according to their moves (i.e. the payoffs for every possible outcome of the game per actor). 24 A strategy of an actor is the function of a specific move (in the set of possible actions) where a non-terminal history exists. 25 For a general sense of this model, you can see the game tree presented in Fig. B.1.

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actors, the majority in parliament and the president, will act. The order of the interventions depends on the first path choice of the government, resulting in two sub-games, an in-depth analysis of which is presented in the next points. Game Path a In order to solve this model, I need to look at the sub-games that exist within it. The idea is to isolate a possible path that is a subset of the game by which it becomes its own separate game. In path a, the first stage is where the government decides to propose a bill in the form of an executive law. When the government presents this bill proposal,26 the path advances to the second stage. At this moment, and after the president has observed aG1 , she will choose an action aP 1 from the feasible set AP . Her choice is either to accept the legislative proposal or to veto it. In case the president decides to veto the initiative, another stage will commence. If not, the proposal is approved and the game ends. In the third stage, the president vetoes the law. As previously stated, the other possible scenario happens if the president accepts the proposal, ending the game after the executive law has been approved. In this first moment, the government observes the action of the president and if she rejects the legislative initiative (aP 1 ) the government will choose an action (aG2 ) from the set AG . Alternatively, the government can also decide to present the proposal as a government bill in parliament, or stop the process by withdrawing it. The next stage, the fourth one, concerns the majority in parliament, which observes aG2 and chooses an action (aM1 ) from the possible set AM . If the government proposes a government bill, then the majority in parliament can accept it, reject it or present an amended proposal (i.e. a mixed proposal). Moreover, if the majority in parliament rejects this proposal the game ends. Different results occur if the majority in parliament accepts or changes the proposal. In either of these two situations, the proposal needs to obtain presidential approval. After the president observes the parliamentary majority’s action (aA1 ), she can accept or veto it. If the majority in parliament approves or changes the initiative it is the fifth stage. In case of approval, the initiative goes to the floor. Otherwise, in

26 This happens with the cost of a loss of legitimacy, which could mean future negative effects at the electoral level.

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the sixth stage, the president vetoes the proposal, giving the government, via the majority in parliament, the possibility of overriding that veto or not. If the veto is overridden, the initiative passes. If not, the initiative is cancelled. Either way, one of the two always happens after that final move and, regardless of which direction is taken, the game ends. Game Path b Now, I present the second possible path (or choice of legislative instrument) identified in my model. In path b (the one that starts with the choice to propose a government bill), the first stage begins when the government decides to propose a bill in the opposite direction to that of the one initially presented in path a. After the choice is made by the government, the majority in parliament can accept it, reject it or propose an amended initiative (i.e. a mixed proposal). These three possible paths will lead to an action of the majority in parliament, given it observes the action (aG1 ) and chooses an action (aM1 ), rejecting the proposal and ending the game, accepting it or changing it. This is the second stage. When one of the last two options occurs, and already discounting what can happen if a majority in parliament rejects the proposal by ending the game, the initiative goes to the president for approval. Thus, the third stage takes place. The president can accept or veto the proposal. If she accepts the proposal, the game ends. If not, then the fourth stage begins. In this stage, the government, after observing aA1 , can choose whether or not to override the veto, thus ending the game.

3.2

SOLVING MODEL 1: PATHS

Employing the sub-game perfect equilibrium technique to identify the sub-game perfect equilibria in this model helps to understand how governmental legislative processes occur by solving it.27 Actors’ strategies incorporate previous calculus that considers agenda powers, majority vs. minority governments and preferences comprising ideological aspects, 27 A sub-game Perfect Equilibrium or a sub-game Perfect Nash Equilibrium is an equilibrium concept where the actor’s equilibrium strategies are a Nash Equilibrium of each one of the sub-games. In other words, it is a possible equilibrium strategy that every actor has in every sub-game. The sub-game perfect Nash equilibrium makes it possible to eliminate non-credible threats. The actors will assume that, once a move occurs, all actors will always go forwards and optimise their actions by ruling out these non-credible threats.

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among other features. These strategies may be seen in actors’ moves. Providing a general approach, this model and its setup contribute to the clarification of executive powers and how they interact with the powers of other institutional actors. Using the sub-game perfect equilibrium solution on my model, I demonstrate both theoretically and after an empirical analysis how the institutional actors optimally move in relation to the strategic outlook concerning legislative production (the government, the majority in parliament and the president). The backwards induction solution that I use to solve my model considers that each actor will optimise their utility by knowing that, when doing so, they will achieve a better outcome. In other words, the best responses of a given actor are linked to the other actors’ actions. By using this strategic anticipation the actors maximise their utilities.28 Each of the  outcomes has  a sole solution RA (aG ) e.g.maxUA (aG , aM )andaG ∈ AG that should be borne in mind when looking at the strategies of the actors. At this point, with the intent of solving this model, I consider its extensive-form representation and take an in-depth look at each sub-game by underlining the moves of the actors involved and by identifying the best possible strategies for the actors and the corresponding equilibria. Framing the Possible Spatial Positions of the Actors The seminal work on the spatial models that entail competition between political actors, like parties or politicians, among others, was authored by Hotelling [121] and Black [28]. With the median voter theorem, which Downs developed, spatial models became popular. Initially used in economics, this type of models has been a particularly useful tool for the understanding of left-right alignments. The use of spatial models became more and more complete and complex, and the number of investigations using them has grown in recent decades by making equilibrium predictions,

28 For instance, a certain actor, let us call him H, in a given moment, anticipates what another actor will do,  let us call him S. The notation would be something like this: maxUH aH , RS (aH ) . In this example it is expected that the outcome would look like:   ∗ , R(a ∗ ) . We can say that, each actor will optimise their actions given the actions of aH S the others actors.

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using multi-dimensional aspects, and adopting these models to diverse institutional settings [e.g. 190, 225, 255, 257]. In order to better comprehend what I am formalising in my model, a visualisation of the possible positions of the actors in a spatial environment can be of good use. Let us start from a concrete example within a specific conjuncture. Consider the point in time when, in Portugal, the legislative elections of 2005 brought about the 10th Legislature, resulting in a new government being nominated.29 However, in 2006, presidential elections were held, and the winning candidate had different political views to those of the government. Because of this occurrence, it is acceptable to argue that there is a change in political conjuncture by a revealed alteration of the electors’ ideal point, previously close to the government and later closer to the president. A simplification of this conjuncture can be seen in Fig. 3.1.30 The strategic interactions between institutional actors, concerning legislative production, and within a state, form the core of this model. Even though it is a one-shot-game,31 I believe that the causal explanations that it entails are relevant for present and future research on legislative behaviour. Following this line of reasoning, it was important to check, while deriving X G

M

P

Fig. 3.1 Spatial model of policy positioning: government, majority in parliament and president (example 1)

29 In my model, as in the Portuguese case, the legislative election results stand for four years and presidential election results stand for five. These two types of electoral acts are not coincidental. 30 Please be aware that the examples of policy positions of the actors within this section do not correspond to their exact and measured positioning, they merely provide the visual information to help understand my reasoning. That is, this positioning is not empirically measured but, rather, created concerning possible conjunctures. 31 This Fig. 3.1 is not an example of a repeated game where an additional advantage would be the learning process that would came with it. As a demonstration of this and of why a oneperiod model can be enough and can thus be extended to multiple rounds or even an infinite horizon, see the explanation of Primo [235]. Despite the previous arguments made in the discipline, future research considering multiple periods of bargaining–repeated moves–would be interesting to confirm whether the results on the strategies and the learning process of the actors hold after the reversion point.

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X G

SQ

M

P

Fig. 3.2 Spatial model of policy positioning: government, status quo, majority in parliament and president (example 2)

it from real-life examples, how I could produce a model that is conceived in a way that permits generalisation. The next figure shows a one-dimensional example of the possible positioning of the actors in a given moment, in this case 2009 Portugal. It was with this conjuncture in mind that I developed the other possible and diverse situations. This policy space displays an array of actors (the government,32 the majority in parliament,33 and the president34 ) and some assumed rational insights, for instance, the idea that, in this and in the other examples, the policy space shows actors’ positions which must be symmetrical single-peaked utility functions encompassing their ideal points. All actors would propose a policy or vote in favour of a policy closer to their ideal point. If I add another position here, the status quo (SQ ), the location of the actors’ ideal policy preferences will not change. What will change is their strategic calculus and, consequently, their policy preferences, if they have to incorporate this information into that calculus. Considering the case shown in Fig. 3.2, the policy preferences of the actors were reframed because of the change in the framework which resulted from adding the SQ position (that represents the actual law position). Figure 3.2 illustrates other possible preferred policy positions within the one-dimensional space. Here, it is apparent that the government would do better not to propose a policy closer to the position of the majority in parliament or that of the president, 32 The government has to report activities to the president and the parliament upon

request. The government can ask for a vote of confidence by the parliament and can be censured by a motion of no confidence by the parliament. The result of either could be the government’s resignation or a reinforcement of its legitimacy. 33 The legislature has four legislative sessions each with a duration of one year, starting on 15 September and ending on 15 June of each year. The parliament’s daily work schedule is defined by its president, but other aspects regarding proposals and changes of proposals, for instance, can be put forward either by the government, by and individual MP or by the parliamentary groups. 34 Cannot be re-elected for a third consecutive mandate or in the five years after the end of the second mandate–the same is true if she resigns.

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X G

SQ

M

P

Fig. 3.3 Spatial model of policy positioning: government, status quo, majority in parliament and president (example 3) X G

M

SQ

P

Fig. 3.4 Spatial model of policy positioning: government, majority in parliament, status quo and president (example 4)

since the SQ is closer to its ideal point. In this case, the government does not have incentives to propose legislation, especially because the majority in parliament and the president would be better off maintaining the SQ than moving closer to the ideal point of the government. Summing up, in this conjuncture, the majority in parliament and the president will always have an incentive to veto35 the proposals of the government given that these, by definition, should be closer to her ideal point than to theirs. In the case depicted in Fig. 3.3, identical reasoning to the one presented for Fig. 3.2 shall occur. The majority in parliament and the president will be better off maintaining the SQ than accepting the initiative of the government. Even though the SQ is closer to the government than in the previous example, it is still more beneficial for the other two actors to maintain things as they are than to accept a law closer to the policy preferences of the government. The same is true for the government, for whom better results would be achieved by maintaining the SQ than by proposing a policy that is far away from its ideal point with chances of being approved by the majority in parliament and by the president. Figure 3.4 depicts a situation where the proposal of the government would be accepted by the majority in parliament if it were closer to its ideal point than to the position of the SQ. Only in this last situation would the government propose an initiative that would not be in line with the preferences of the president, given that the SQ would be better for her than the policy proposal of the government. On the other

35 On presidential vetoes of legislation, in addition to the previously mentioned work of Romer and Rosenthal [246], see Cameron and McCarty [45, 410].

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X G

M

P

SQ

Fig. 3.5 Spatial model of policy positioning: government, majority in parliament, president and status quo (example 5) X SQ

G

M

P

Fig. 3.6 Spatial model of policy positioning: status quo, government, majority in parliament and president (example 6)

hand, Fig. 3.5 shows a situation where the majority in parliament and the president will accept the proposals made by the government if these are closer to their most preferred policies. But, if the distance is greater from their most preferred policies than from the SQ, then they are better off. In the next representation of the one-dimensional space, the majority in parliament and the president will always accept a policy that is positioned on the government’s ideal point over their own, because it would be closer to their ideal positions than the SQ. Figure 3.6 illustrates a conjuncture where a change in law can happen without too much bargaining. Here, the government’s room to manoeuvre is definitively greater than in the previous examples. The president and the majority in parliament will accept any initiative made by the government since it will be closer to their ideal points. Solving Path a There is one sub-game perfect equilibrium in path a (represented by zigzag lines) which is the path along which the government proposes an executive law and the president accepts it. A better understanding of this perfect equilibrium can be achieved by paying attention to the next extensive-form representation in Fig. 3.7. In the previous extensive-form representation of my model, I start by comparing the possibility of the government overcoming () or not overcoming () an eventual veto by the president. By doing so and paying close attention to the outcomes for the government,36 I deduce that the best choice for this actor is to

36 All the possible outcomes from the utilities of all the actors are available in Appendix B.

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Fig. 3.7 Government’s legislative decision-making in extensive form with subgame perfect equilibria—Executive Law

overcome the veto. An identical situation happens here if we consider that the final nodes are overcome (♠) and not overcome (♠♠) after the majority in parliament had proposed a changed initiative and the president had refused it. The outcomes in both the left and right branches are equilibrium strategies, despite not having continuity. The most preferred outcome for the president is to accept in the left () and the right () branches. The president knows that the government will overcome her veto (if she employs it), and, because that action is more costly to her, she decides to accept the proposal.

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Following the same reasoning, when the majority in parliament decides to move, given the costs of refusal and of putting forward an amended proposal (given that the president prefers to accept the government’s proposal), the majority in parliament decides to accept the first option. Strictly speaking, the majority in parliament prefers its outcomes to accepting the initiative, despite rejecting it () and advancing with an amended proposal (). That is, the best strategy for the majority in parliament is to accept the government’s proposal of a governmental bill and not to stop it (), since the costs will be greater if the opposite happens and the initiative is stopped. The next backwards induction step happens at the moment when the other actors realise that the government decided to propose a government bill. The government knows that the president will always prefer to accept the former proposal (el) in the previous step (), and, knowing that it will be approved, the government decides to present the executive law. Analysing the president’s moves, she will choose to accept the previous proposal made by the government, and, if that does not happen, she will choose to accept it in the second-to-last branch. The majority in parliament will accept the initiative if it falls on it to decide. The other possibility happens if the government chooses an executive law or if it decides to override an eventual existing veto (in the right side of the game). Following that logic, the majority in parliament accepts and the president would always accept this decision in the two possible branches. The sub-game perfect equilibria of this choice of legislative instrument, which is effectively the choice of a path (in this case path a), presents a uniqueness. This will also be the case of the other path (path b ), mainly dependent on the cost structure of the players, particularly the government. Solving Path b Now, looking at sub-game b (Fig. 3.8) an extensive-form representation of the model can also be seen in the next game tree (the sub-game perfect equilibrium is marked with zigzag lines). Using backwards induction, I can identify a sub-game perfect equilibrium that exists if the government proposes a governmental bill, making the majority in parliament and the president accept the proposal. Seeing the last nodes, it is clear that the government will always prefer to overcome possible vetoes (• and ) to not overcoming them (•• and ). In the same direction, and looking at her preferences, it is better for the president if she accepts the proposal from the government (⊗ and ♣) than to veto it, given their calculus on the future move of the government. When comparing the outcome of the

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Fig. 3.8 Government’s legislative decision-making in extensive form with subgame perfect equilibria—Government Bill

president, in the last node, where the government would overcome the veto, the majority in parliament would prefer the outcomes of accepting the proposal to those of rejecting it ( ) or putting forward an amended proposal given the higher costs. Finally, in these circumstances it is better for the government to propose a government bill, this being the first move in the equilibrium strategies of sub-game b.

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Summing up, in the model presented here, the strategies per actor37 help to identify the equilibria. The first strategy happens when the government proposes an executive law, after which it can also present a government bill in the left-hand branch, and then still always override possible vetoes on that side. The majority in parliament will accept the proposal in any situation, and the same happens with the president. The second strategy occurs when the government proposes an executive law, and then, in the last stages of the game, it overrides possible vetoes. Concerning the majority in parliament and the president the acceptance of governmental initiatives will always occur. The third identified strategy is the one that starts with a proposal of the government in the format of a government bill, subsequently overriding possible vetoes in the last two branches on the right side of the game tree. Given the previous calculus, the majority in parliament will always accept the proposals from the government, and, finally, in both cases, the move by the president would be to accept. The other strategy, the fourth, is when the government moves by proposing a government bill, and eventually insisting on and proposing the same type of law again on the other side of the game tree (the left side), followed by the decision to override in the last two branches on the left. As for to the majority in parliament’s actions, it will always accept governmental initiatives in this conjuncture. Finally, the president will accept all the proposals of the government. The sub-game perfect equilibria of this choice of legislative instrument, as stated in the previous point, and which in this case is path b, is unique as it was in path a, and both are constrained by the cost structures of the players, especially the government. Two Types of Equilibria When we look at both game trees and respective sub-game equilibria, we find two possible paths that are dependent on the choice of legal instrument: path a, which corresponds to the government choosing to initiate an executive law, and path b, which corresponds to the government’s choice of initiating a government bill.

   (el, gb, o, o); (a, a, a); (a) , (el, o, o); (a);     (a, a) and (gb, o, o); (a); (aa) , (gb, gb, oo); (a); (a, aa) . 37 The strategies per actor are as follows:



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In the case of path a, the costs for government of proposing this path are lower than if they propose some legislation via path b. As for the president, given that her costs of vetoing are high and she cannot regularly veto legislation, her calculus considers the fact that her veto may be overwritten by a majority in parliament, with the corresponding costs considered.

3.3

SOLVING MODEL 2: SCENARIOS

As a result of my previous discussion, it is reasonable to assume that the government will decide on either an executive law or a government bill, depending on its preferences and the predicted moves of the other actors. In this calculus, the government includes the belief38 that its proposals will be accepted by the president, in the first case, or by the majority in parliament and then by the president, in the second. Nevertheless, the question initially formulated is not fully answered. The strategic choice of the government, between an executive law and a government bill, is still a puzzle. However, so far, I have shown an important aspect concerning the institutional framework of my model: it is not the institutional design that drives the decisions of the actors. I proved that, in a rational environment, there would be no vetoes because all the actors would act preventively in order to just propose and just accept or refuse what they previously knew would not be overridden. However, if the institutional frame is not driving strategic decisions on the type of legislation that the government proposes, then what is guiding this decision? I already proposed some ideas in the previous discussion of my model but I am aware that a final step is still needed in order to answer this question. All in all, the previously presented cost structure gives an idea that is highly relevant for the government’s choice. The costs of proposing an executive law or a government bill are the features that make a difference when the government moves. As shown earlier, it is in the initial branch that the decision is compelling. If the actors act as rational actors, the president and the majority in parliament will always prefer to approve any proposal by the government. Ceteris paribus, the president will incur greater costs by refusing it. Actually, at any given point in time, the costs of each actor will be directly related to how favorable or not is the institutional conjuncture. 38 It follows a strategic reasoning, taking into consideration what the other actors intend to accept and thus only proposing laws it believes will be accepted.

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Table 3.2 Possible scenarios with the government, the majority in parliament and the president Actor Government Parliamentary majority President

Strong

Majority

Minority

Weak

= = =

= = =

= = =

= = =

To better comprehend what I am talking about, I defined and analysed four possible scenarios with a differentiated cost structure.39 They are presented as (a) a strong government scenario, where the government, the parliamentary majority and the president are from the same political spectrum;40 (b) a majority government scenario, where the government and the parliamentary majority are from the same political spectrum and the president is from a different one; (c) a minority government scenario, where the government and the president are from the same political spectrum but the parliamentary majority is from a different one; and (d) a weak government scenario, where the government is from a different political spectrum than the parliamentary majority and the president. These possible scenarios are depicted in a simplified way in Table 3.2. In each one of the scenarios–strong, minority, majority and weak–I used an equal (=) or a not equal ( =) sign to indicate whether a given actor belongs to the same or a different region of the political spectrum as the others. For instance, in a given scenario, if an actor has the equal symbol, then it should have, at least, one more actor in the same political spectrum. This does not happen if there is one more actor belonging to a different political spectrum because, in those situations, these other two would be the ones considered equal.

39 Given that I am talking about conjunctures, I consider the government as having a

majority or not in the parliament, meaning that the government has more or less power in parliament by having an absolute majority or not. 40 In this book, when I refer to the political spectrum I mean the positioning of the actors, within one spatial dimension, which concerns a range of lefts and right positions.

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Strong Government Scenario Given these circumstances, under which the government, the parliamentary majority and the president are from the same political spectrum, the task of the first to present its proposal for approval is, in principle, easier. Unless there are internal disputes within the party(ies) of the majority, there is no reason for the government’s proposal to not be successful. It is with this scenario in mind that I defined the next proposition: Proposition 1 There exists an equilibrium strategy when there is a strong government scenario and the government proposes a government bill. There is an extra aspect that can be empirically relevant: I want to look at policy issues41 in order to see if they have any effect on my main explanatory variables and, following that, if they have statistical significance per se. I will explain this analysis in more detail later in this book. The above proposition gives rise to the following hypothesis: HYPOTHESIS 1: In a strong government scenario, there is a higher likelihood that the government will propose a government bill.

Given the cost structure of my model, the reading of this hypothesis is also possible by aggregating scenarios into similar trends: the strong government scenario with the majority government scenario and the minority government scenario with the weak government scenario. Majority Government Scenario The majority scenario results from the contextual configuration in which the government and the majority in parliament are from the same political spectrum, and the president is from a different one. By having a majority in parliament but a president with distinct preferences, the initiatives proposed by the government are an attempt to move closer to its most

41 I do not hypothesise on actors’ preferences concerning issues because it is not line with my formal model. However, as given in the literature, these issues can drive legislation proposals. A relationship exists between the types of legislation and the issues and it happens especially because of time-related aspects such as efficiency and legitimacy. It is important to consider this relationship when making this analysis and it is because of that I incorporate the issues further.

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preferred policies while not being too costly for the president.42 The majority in parliament will not reject proposals from the government. The government, certain that the president will employ no or very few vetoes, will prefer to propose governmental bills rather than executive laws. From this reasoning, I draw the following proposition: Proposition 2 There exists an equilibrium strategy when there is a majority government scenario and the government proposes a government bill. This initiative is going to be accepted by the president, even if she is not from the same political spectrum. From the content of this proposition, I derived the following hypothesis: HYPOTHESIS 2: In a majority government scenario, there is a higher likelihood that the government will propose a government bill.

This hypothesis is also directly related to the strong government scenario, given that the main conditions are linked with the institutional setting. This fact is more relevant because, in that scenario, contrary to this one, the president has similar policy preferences to those of the other two actors. Minority Government Scenario In this scenario, the government and the president are from the same political spectrum and the majority in parliament is from a different one. Here, the president does not have incentives to veto a governmental proposal. On the other hand, the majority in parliament knows that the government will propose a policy that is closer to its most preferred policy position. However, there must be a calibration of the positioning of the policy, since the government is dependent on the approval of the majority in parliament. Proposition 3 There exists an equilibrium strategy when there is a minority government scenario and the government proposes an executive law.

42 These costs are relevant, even if the veto is not effective because it can be overridden, as, in addition to the veto power, the president can also dismiss the parliament. Nevertheless, this is a threat that would lose credibility if used too often, or incur in the risk of new election results be similar to the ones they face at dismissal time.

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Depending on the distance between the positions of the government and the majority in parliament and that of the SQ, there is a specific outcome. If the policy position is closer to the preferences of the majority in parliament than the SQ and if it is closer to its preferences than the SQ, the government will present a policy. On the other hand, if the previous statement does not hold true, an initiative will not be proposed. From Proposition 3, I derived the following hypothesis: HYPOTHESIS 3: In a minority government scenario, there is a higher likelihood that the government will propose an executive law.

If the government does not have a majority in parliament, it is expected that it will attempt to pass its most preferred policies by decree (executive law). Of course, there are always possible critiques to this move, because that form of legislation does not follow the parliamentary route, and this raises a legitimacy problem. The idea of ruling by decree is usually prejudicial to the executive, but, precisely because it is a minority government, one expects a prior calibration of policy positions which takes into account the preferences of the majority in parliament. Identically to the scenario of a majority government, here, we should see an alignment of the preferences of the government and the president which should be reflected in their respective costs of action. Weak Government Scenario Finally, the weak government scenario has a government from a different political spectrum to that of the parliamentary majority and the president, the latter two being from the same one. This is the worst scenario for the government if it wants to realise law proposals closer to its preferences. The government circumvents the situation by proposing legislation closer to both its more preferred policy position and that of the majority in parliament and, thus, also of the president . The only way to change the SQ is to arrange a deal. In these circumstances, bargaining is expected in parliament. In the case of proposing executive laws, the government would just initiate laws that are a compromise between the actors, if it knows that by failing to do so its proposals will be overridden. Proposition 4 There exists an equilibrium strategy when there is a weak government scenario and the government proposes an executive law.

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Depending on the distance between the position of the government and those of the majority in parliament, the president and the SQ, a policy can or cannot be enacted by the government. If the policy position is closer to the preferences of the government and those of the majority in parliament and the president than to the SQ, then the government will either present a policy or not propose any initiative. Given the latter proposition, the following hypothesis was derived: HYPOTHESIS 4: In a weak government scenario, there is a higher likelihood that the government will propose an executive law.

Identically to what happened before, the initiatives of the government should take into account a rational calculus on the preferences of the majority in parliament–first and foremost–but also those of the president.

3.4

CHAPTER FINAL REMARKS

Because of the features of formal models, it is possible to generalise conclusions from their settings and solutions. Moreover, although the study of political legislative behaviour has limitations primarily connected with the specificities of particular frameworks, the strategic interactions of the actors can disclose mechanisms that help explain political phenomena. The model I present here has identical reasoning to those which incorporate veto bargaining rationale but are not models of pure bargaining. It is essentially a procedural model in the sense that it designs strategic political behaviour within a predefined set of rules. In this model, the interactions between actors start when the government proposes a policy with the aim of maximising its utility. This move happens after its calculus of what the other actors are willing to accept. The government will propose a law whose utility is the best possible one for itself, while at the same time considering its potential approval by the other actors, who want to receive the highest possible utility from it. On that account, the agenda-setter is able to propose the policy that is closer to their preferences, always considering the other actors’ and SQ ideal points. With this model, I present an explanation for how, in different possible institutional scenarios, the actors’ choices, over individual moves, can be distinct according to their relative positioning.

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While providing theoretical and substantive input and contributing to the clarification of a legislative process, this model also presents grounded explanations for other realities that other formal models (mostly with respect to the US reality) do not give. It also offers fundamentals of the way parliamentary and semi-presidential systems work. Another significant advance that this model permits is to analyse how governments (not legislators, in general) make their strategic calculus by using different types of law proposals. Governments keep their legislative power at close reach, which is an addition to their power to administrate the state, but also, their legislative agenda-setting capacity. Regarding the backwards induction solution used in the game (in the version of the model that does not consider the scenarios), the results showing that the institutional design does not influence the type of proposal made by the government are not highly surprising. However, when possible variations concerning the parliamentary context and the president’s positioning on the political spectrum are added to the baseline model, the strategic actions of the government change. I demonstrate that, ceteris paribus, the effects of the constitutional and processual structures of the state do not directly define the strategic calculus of the actors. Nevertheless, this framework along with possible variable electoral results allows actors to rationally calculate their best moves. To obtain more realistic results, I discussed questions that would lead to the scenarios presented in this chapter and which explain the variation in the actors’ behaviours. They are mostly conjectural. For instance, I asked, “What occurs if the government is on a different end of the political spectrum to that of the president?” “Do we have a divided government?” “What if the president and the parliamentary majority are distant from the government and close to each other?” and “What if the three institutions occupy the same political spectrum?”.43 After presenting more specifications of the model, with the addition of the four possible scenarios, the equilibrium strategies emerged, and they could be tested with real data and used in real cases. These equilibrium strategies, by considering each of the possible scenarios, occur when the government proposes a government

43 Future work should be developed about that aspect in particular and also about the

opposite scenario. It is important to try to understand how in these extreme circumstances the actors move, given that the space for manoeuvre is clearly distinct.

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bill in a strong government and majority government scenarios and an executive law in minority government and weak government scenarios. The vast and substantial empirical literature examining legislative behaviour and aspects like presidential vetoes still lacks theories with ad hoc hypotheses. Only a few studies have theoretical expectations generated by formal models and use data to test them. This book does not count itself among the former, given that my claims will be empirically tested over the next chapters.

CHAPTER 4

Characterisation of the Portuguese Case

Abstract This is the chapter where I introduce the Portuguese case. Here, I offer a broader characterisation of the country’s political system, mainly focusing on organisational aspects of the relationship between parliament and government, as this is relevant to the testing of my formal model. Not only does this chapter set the tone for the database construction and respective empirics, but it also addresses other points like the constitutional evolution of the country, its parliamentary or semi-presidential system setting, and the main political actors’ legislative powers. All these elements are relevant for the strategic considerations raised in this book. Keywords Portugal • Parliamentary political system • Legislative powers

Portugal is not univocally defined within the typologies for political systems. Different studies place the Portuguese system in dissimilar categories. Nevertheless, the Portuguese case shall help to clarify the categorisation used for it. With strong governmental influence regarding all state matters, and the way powers are counterbalanced by the Constitution of the Portuguese Republic (Constituição da República Portuguesa) [62], with a parliament and with a president who has veto powers, the country presents institutional dynamics that go beyond general categories. For instance, Portugal has already been identified in purely parliamentary © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 P. Calca, Executive-Legislative Relations in Parliamentary Systems, https://doi.org/10.1007/978-3-030-92343-3_4

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or presidential systems, or under a semi-presidential umbrella. As the Portuguese legislative framework is used for gathering data that enables testing theory developed previously in a formal model, it is important to look at the country’s political system and rules to substantiate the construction of the database used herein. In this chapter, first I talk about the constitutional act of 1976. I then present and describe the institutional bodies of the Portuguese republic. Third, I discuss the country’s legislative process. Then, I present a characterisation of the political division of power over the last few decades. I end the chapter with various conclusions.

4.1

A STARTING POINT: THE CONSTITUTION

OF

1976

After the end of the fascist regime, in 1974, democracy found its way to Portugal. The revolution of 25 April–the Carnation Revolution–was the moment that ended the Portuguese colonial war and the dictatorship in the country, when the so-called third wave of democratisation started [e.g. 106]. In order to define the political system in the establishment of the democratic regime, the principal stage of negotiations was the Constituent Assembly of 1975-1976. Promulgated on 2 April 1976, the Portuguese Constitution determined the direct election of the president and the prime minister. The prime minister is not personally elected; she is appointed by directly elected MPs after legislative elections [212, 127]. The Portuguese Constitution reflected and embraced several political and ideological perspectives that were directly inherited from the revolutionary period following 25 April 1974. However, between 1976 and 1982, the Portuguese political system was still adapting to the new circumstances; for instance, in this period the Council of Revolution (Conselho da Revolução1 ) still existed. In 1982 there was a revision of the Constitution and the Council of Revolution was extinct. This extinction meant a redistribution of Council of Revolution powers and its legislative

1 The Council of Revolution was a military body installed shortly after the Carnation Revolution and it had powers that constrained other political institutions also being incorporated in the Constitution of 1976. It is because of these strong institutional differences between 1976 and 1982 that my dataset and respective empirical analysis starts when the first reform is over and the Council of Revolution is officially extinguished.

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competencies were transferred to parliament, its advisory functions regarding the president were taken over by the Council of State, now established for the purpose of being a presidential advisory board, and the control of constitutionality was fulfilled by the Constitutional Court. For the separation of powers within the state and respective power attributions, the 1976 Constitution would define a double function for the government concerning two institutions, which is still currently in practice. The government has to answer to parliament and to the president on particular aspects, and this works as a check and balance to the executive action [64, 30]. However, the constitutional negotiations were not made only at this level; various other issues were discussed and defined, and one of the most relevant for my reasoning in this book reflects the constituents’ concerns about legislative powers. More concretely, an attempt to valorise the legislative powers of parliament worked to the detriment of governmental legislative powers [196, 171]. As Kraus [146, 67] stated, “the closer the look one takes at a word, the greater the distance from which it looks back”, and the CPR [62] is not the same today as it was in 1976. Not only due to necessary adjustments and new interpretations over the passing of time, but also because there were structural changes in the country’s framework of sovereign powers (i.e. European integration). As changes in the CPR [62] are only possible with two-thirds of positive votes in parliament, any revision implies a broad political consensus within the parliamentary arena. To date, there have been seven constitutional revisions. The first was in 1982, as mentioned above, where its main goal was to reduce the references to ideological features and abolish the Council of Revolution. The Constitutional Court was created at the same time. It reinforced parliament’s legislative powers by adding a new concept called absolute reserve of parliament, which was possible by adding new legislative points (including further details to Article 164 and Article 167 of CPR [62]). The legislative competencies of the regional assemblies were also redefined at that moment [196, 181].2 The second constitutional revision was made in

2 For more complete information about the political systems of Azores and Madeira see Ruel [249].

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1989 and was related to the economic system, namely, the nationalisation process. This revision also permitted lowering the number of MPs (from 250 to 230) for the 1991 legislative elections. The two other revisions, in 1992 and 1997, were related to the European Union (EU) Treaties of Maastricht and Amsterdam concerning the vote of foreigners living in Portugal, the uninominal constituencies and the possibility of citizens’ legislative initiative. In 2001, there was another revision based on the country’s ratification of the convention that created the International Criminal Court and thus changed extradition rules. The sixth constitutional revision was approved in 2004 and it was focused on increasing the political autonomy of the Autonomous Region of Azores and Madeira, aspects of International Law, and the limitation of public terms of office. The last revision occurred one year later, in 2005, making a necessary addition of one article that legally permitted promoting a referendum on European Union construction.3

4.2

INSTITUTIONAL

AND

POLITICAL BODIES

Portugal has three legislative bodies defined in the CPR [62]: (a) parliament; (b) government and (c) the legislative assemblies of the Autonomous Regions of Azores and Madeira [196, 186]. The legislative actions of these bodies are differentiated according to their power to propose a bill, and distinct laws emanate from distinct state bodies. In the national parliament is produced legislation in the format of laws,4 the government issues executive laws, and the autonomous regions, via the regional assemblies, create regional legislative decrees [196, 187–188]. Despite the diversity of legislation produced by Portuguese institutions, according to the CPR [62], it is the parliament that has legislative precedence. Parliament is the institution with general legislative competency. However, even outside its competencies (like the governmental and autonomous regions’ legislative actions) it establishes the general juridicial 3 For more information about the Constitutional Reforms see the website of the Por-

tuguese parliament http://www.parlamento.pt/RevisoesConstitucionais/Paginas/default. aspx and Miranda [196, 181 and ff.]. 4 They have to be approved by final global voting of an absolute majority of MPs; if vetoed, they can be overcome and the legislation approved by a majority of two-thirds of MPs. There are also other types of legislation that are not central for the reasoning of this book but are addressed in the section about the data.

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65

rules for executive laws and regional legislative decrees. This is the case because once a particular legislation is enacted, with the exception of laws that have the absolute reserve of a particular institution, there is always the possibility of its supervision, appraisal, rejection, suspension or amendment by parliament [196, 191–192]. Government5 In the Portuguese system, the government is the executive institution and it is appointed by the president. This presidential assent is dependent on electoral results but the prime minister is not directly elected in the legislative elections. Nevertheless, this procedural rule does not affect her legitimacy. In fact, the legitimacy of the government, in Portugal, goes beyond the mere idea of the separation of powers. This idea of the legitimacy of the indirectly elected government has its origins in the Constitution. The fundamental text advocates the separation of powers, and the independence of state bodies [241, 50–51]. The prime minister is nominated after the legislative elections. It is the president who makes this nomination by previously considering parliamentary parties’ indication and electoral results (Article 187 of the CPR [62]). Also, according to the current Portuguese legal and constitutional framework, the government has to seek approval for its programme. If there is a rejection of its manifesto, the government is automatically dismissed. The CPR [62] also established a clear distinction between head of state and head of government, the latter being politically responsible for the government in parliament (Articles 191 and 192 of CPR [62]). As a body that leads state administration (Article 182 of CPR [62]), the cabinet is formed by the prime minister, comprising ministers, secretaries of state and undersecretaries of state, and it may also contain one or several deputy prime ministers (Article 183 of CPR [62]). According

5 The literature that conceptualises the term government is vast and diverse, and some of these writings have previously been referred to in this book. However, government in Portugal is defined as a collective organ that executes political power within the state as a sovereign institution, according to the Constitution. According to Articles 110 and 182 of the CPR [62], the government is the institution responsible for the general running of the state and the principal agent of its public administration. To access more detailed information about the Portuguese government’s competencies, powers and obligations, see Calca [38].

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to the CPR [62], the government in Portugal has political (Article 197 of CPR [62]), legislative (Article 198 of CPR [62]) and administrative competencies (Article 199 of CPR [62]). Thus, and from a legal point of view, in Portugal, the government has been characterised as a complex organ composed of various individuals or groups of individuals: (a) the Council of Ministers; (b) the prime minister; (c) the ministers; (d) the secretaries of state and (e) the under-secretaries of state. As for governmental decisionmaking, the government should be understood as the cabinet or, in other words, the Council of Ministers [239, 42]. Aimed at analysing the government’s legislative behaviour, this book addresses governmental legislative initiative. It can be in the format of an executive laws (decree power) on topics that are not the reserve of the parliament, of parliamentary exclusive responsibility when the latter gives legislative authorisation to the government to do so, the development of executive laws in accordance with the country’s legal framework and government bills. In addition to these competencies, the government legislates on matters of its internal organisation and functioning.6 In Portugal legislative institutions have differentiated powers and these institutions define state politics and policies at any given time. They define a political direction and the establishment of a direction of politics, where political direction is developed by all the institutions co-oriented towards the state and the direction of politics mainly deals with the actions and the power of the cabinet and the prime minister.7 The government’s legislative power in Portugal is, on average, more extended than the bodies with similar functions of most Western countries,8 even considering the announced parliamentary supervision in some situations. The definition of the government presented in Article 182 of the CPR [62] provides information about the cabinet’s particular domain of action. This definition presents the government as a body regulated by the CPR [62], as well as the other institutional powers materialised in the president and parliament. Beyond its political powers and the other competencies 6 For more details about the constitutional attributes of the government see Calca [38]. 7 For more information on the types of legislation enacted by the government and a deeper

understanding of it see Miranda and Sousa [197, 131 and ff.], Queirós [239, 52], and Morais [203, 435 and ff.]. 8 For a debate on the governmental powers and their extensions in Portugal see Miranda and Sousa [197] and Miranda [196].

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67

expressly assigned to other bodies, all the government’s functions concerning the general setting of policy execution are of governmental reserve [241, 64–65]. Nevertheless, the cabinet does not have any legislative precedent that deals with political aims or emergencies, as these powers cannot be transferred by the president (even if she wants). The CPR [62] does not address this hypothesis [196, 201]. Hence, even with strong powers, it would be legally impossible for the government to surpass parliamentary legislative powers. Parliament Parliament (Assembleia da República),9 as a sovereign body of the Portuguese state is an unicameral institution that shares sovereign status with the president, the government and the assemblies of the autonomous regions [196, 333–335]. The Portuguese parliament has 230 MPs elected through proportional representation. The conversion of votes into seats is carried out using the D’Hondt method.10 The Portuguese system has 25 uninominal circles coincidental with the country’s divisions into districts. Portuguese emigrants living abroad can also vote and they elect four MPs divided into two circles (inside and outside Europe). The electoral lists are presented by the political parties, on their own or in coalition with other parties. Open to the integration of independent candidates, these lists are multimember, closed and blocked without the possibility of change or rearrangement. There is no formal electoral threshold in the conversion of votes into seats, and each voter has the right to vote once. The parliament has legislative powers (Article 161 of CPR [62]) but also supervising powers (Article 162 of CPR [62]) regarding other political institutions, for instance regarding the president, when she takes office and has to travel abroad, the government, dealing with the governmental programme evaluation and approval, the Council of State, the Public Ministry Superior Council or the Constitutional Court, dealing with nominations, amongst other cases (Article 163 of CPR [62]). In this setting, every legislature corresponds to a period of four years divided into four legislative sessions (each with a duration of one year). Considering Article 161 d of the CPR [62], parliament is described as having the power

9 About the political features and the general attributes of the Portuguese parliament and

its functioning see Sá [272] and Leston-Bandeira [158]. 10 On the political system and respective revision see Freire et al. [100].

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to legislate on all matters, with the organisation of government being the only exception, although it can determine earlier legislative aspects of the same activity, as shown in Miranda [196, 245] and Reis Novais [241, 27]. The CPR [62] establishes the dominion of parliament regarding law reserve.11 The government only legislates in instances where parliament does not have reserved power. That is, the government has legislative powers over its internal organisation, and the functioning or enacting of certain types of laws like executive laws [239, 40–41].12 President In Portugal the president represents the Portuguese republic and she is the guarantor of national independence, unity and the regular functioning of state democratic institutions. She is also the Supreme Commander of the Armed Forces.13 The president is elected by universal, direct14 and secret voting of Portuguese citizens, both those living in Portugal and those residing abroad. The Portuguese president can dissolve the parliament but, this cannot happen in the six months immediately after her election or in the six months before the end of her term. Likewise, she cannot dismiss the government when there is a state of emergency in the country as pursuant

11 For more on the phases and the administrative procedure of the parliament see an indepth analysis in Miranda [196, 262 and ff.]. 12 For more in-depth information about the competencies of the Portuguese parliament see Freire et al. [98] and Leston-Bandeira (2004). 13 About the powers of the president, see Article 120 of the CPR [62] and Calca [39]. 14 These characteristics are basic features of presidential and semi-presidential systems, for instance as seen in Duverger [78], Elgie [81], Lijphart [161], Sartori [252]. Nevertheless, because in Portugal the president co-exists with the prime minister and she is accountable to parliament, especially regarding legislative procedures, we should classify the system as parliamentary. The effective power of the president is not unanimously interpreted by academics as there is some discretion in the way the president may use her formal powers, more specifically her power to dissolve the parliament, and consequently to dismiss the prime minister. Nevertheless this cannot be a warning that can always be in use as this would empty her claims and work as a hollow threat. Thus, for a vast majority of legislative proposals, given the very low numbers of political vetoes from the president, the main actors involved are the government and the parliament. Given that the prime minister is accountable to the parliament and the president, it is the parliament that unequivocally has major power over the future of the government.

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69

to Article 172 of the CPR [62]. The president has veto power15 and has in the Council of State her ultimate political advising body. Similar to some semi-presidential systems, in Portugal the president is constitutionally empowered in a way that can make the government accountable (in legislative terms). This may happen if the president vetoes legislation, which should be substantiated before parliament [241, 51]. However, if this means that the legislative action of the government makes it answerable to parliament, one may ask if this accountability is, in itself, a reflex of an adequate separation between the legislative function of the policy administration function [241, 39]. Duverger argues that Portugal is a semi-presidential system.16 The nature of the Portuguese democracy17 was initially mostly defined as being influenced by the military, and during the transition process this was determinant of an initial definition of the system in itself [64, 99]. However, the projects of the two major parties–Socialist Party (Partido Socialista, PS) and Social Democratic Party (Partido Social Democrata, PSD)–,18 were not in line with this[163, 153]. Nevertheless, the Portuguese system have been classified under a series of distinct categories, as a semi-presidential [e.g. 196, 204], parliamentary [e.g. 155], rationalised-parliamentary [e.g. 205, 219], mixed parliamentary-presidential [e.g. 205] or presidentialism of prime minister [e.g. 204, 239] system, to give some examples. The system is diverse enough to cause a divergence among authors when precisely and undoubtedly defining it under one or the other category in distinct

15 The veto power that the Portuguese president has is different to the power of

sanctioning. It reflects the ability to prevent a given legislative initiative coming into force, in a Montesquieu manner, and not a power to decide. The president cannot contribute to the content of an initiative, or decide on its making. Her veto is a refusal, an obstacle to the legislation, and supervision regarding the actions of another institutional body, the government or the parliament. For more details about possible veto configurations see Miranda [196, 303 and ff.]. 16 While describing semi-presidential systems, Duverger underlines three necessary conditions in order to classify a given country: (a) the president must be elected by universal suffrage; (b) the president must have relevant political powers; and (c) the president must coexist with the prime minister and, in general, with the cabinet that has the executive power, being accountable to parliament [78, 42]. 17 For a deeper look at the historical reasons for the choice of this system see Freire and Costa Pinto [99, 47 and ff.]. 18 About the party-system in Portugal see more detailed information in Jalali [132].

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typologies. For instance, there are two major characteristics of semipresidential systems that seem to be in line with what happens in Portugal. I am referring to a directly and universally elected president with the power of political intervention and, second, a prime minister (and a government) accountable to parliament [239, 57–58]. But, when comparing a parliamentary with a presidential system and setting aside reasons of a historical nature relating to their appearance, one concludes that they are opposites [242, 65]. However, if both systems are compared with the semi-presidential system, there are many common features. Thus, regarding the definition of a semi-presidential system in a representative democracy system of government that aggregates a president elected by popular vote and with significant constitutional powers, and a government politically responsible to parliament, one can see where the typologies overlap [242, 141]. Still, and despite more visible characteristics of the semi-presidential system, there are also striking aspects. The idea that a semi-presidential system holds a dual executive is not realistic. Identical characterisation may be given to the claim that a semi-presidential system, such as the Portuguese one, potentiates a double-headed executive action [242, 145]. Mainly within the literature of Portuguese origin, several authors have argued that even with the relevant change of the 1982 constitutional revision the system still maintained the major semi-presidential features [164, 57]. Following other reasoning, authors like Moreira [204] and Moreira and Canotilho [205] define the system closer to a parliamentary one. It is also with this in mind, even at a secondary level, that I present the main argumentation in this book. By trying to figure out how the legislative decisional process works in Portugal, I also shed light on the effective power of the actors, which may help in understanding the general notions of political power attached to the definition of the political systems. The constitutional ruling makes the government accountable to parliament. However, the praxis may demonstrate, also because of the discipline of voting and especially when there are clear majorities in parliament, that parliament is accountable to the government, or in other words, that the party in office mainly behaves as a block (government and parliament) albeit with some rare deviation. Parliamentary influence on the government’s political leadership, such as the adoption of laws on the primary options of plans, and the state budget reveals an interconnectedness between the majorities in parliament and governmental action. In the Portuguese political system the separation of powers may constitute a

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71

challenge as absolute majorities absolutely dominate the parliament and the government. In practice, the Portuguese institutional settings have several problems regarding full separation of powers [241, 42]. The political actions of the government can be placed in question by parliament, and this may happen via two distinct proposers and according to articles 192, 193, 194 and 195 of the CPR [62]: (a) MPs’ initiative while dealing with the government programme where this takes the form of a motion of rejection of the programme in itself or a motion of censure of government activity (which could be during the governmental programme approval or at other times concerning other issues), and (b) a government initiative for a motion of confidence that implies a confidence vote, that, if not approved, implies the dismissal of the government [239, 64]. The government’s political responsibility to the president is mainly noted in situations leading to a possible (but distant) exoneration of the prime minister, irrespective of the parliamentary majority. If this action takes place, there is an immediate end of the term and new elections follow.

4.3

LAW-MAKING

IN

PORTUGAL

The process of making laws, and proposing initiatives, is central to this book. Thus, and concerning the rules of conduct regulating certain practices within a state, this notion is broad as it refers to all legislative initiatives, regardless of the actor submitting them. When relevant for the argument and clarification, the author of a given proposal is named. Furthermore, as under the rational choice approach and in order to empirically test my model, I define law as all the legislation enacted, evaluated, appraised or vetoed by actors of the institutional framework, responding to a given legal procedure, embodying a certain policy idea.19 There are two distinct paths that legislation can follow in the Portuguese case.20 If the proposed legislation finds its way via the cabinet, it can either be initially signed by the prime minister, and then by each of the ministers involved, or be presented in the Council of Ministers, and approved. In 19 For a more in-depth discussion about the definition of a law, conceptualisation, history and philosophical perspectives see Miranda [196, 132 and ff.]. 20 In fact, there are three possibilities concerning the body where a particular legislative initiative may be initiated, but in this book I do not address the autonomous regions’ legislative capacity because it does not incorporate governmental (as national government) initiatives, but, as I have already stated, these regions also have legislative power.

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Prime Minister

Ministers

Cabinet

Cabinet

INITIATIVES

President∗

Fig. 4.1 Legislative process in the Portuguese government (Source: Official documentation from the Portuguese parliament). (∗ : The president may veto the proposal, and when and if that happens, the cabinet has to end the proposal, change it and submit it again. The alternative to this last step is to present it and propose it via the parliament.)

both cases, it will always be necessary to send the initiative for presidential approval. In the case that the president vetoes the legislative proposal, the government can end the proposal, change it and submit it again, or present it as an executive law in parliament. Figure 4.1 illustrates possible pathways of the legislative process if initiated in the cabinet. In the other legislative process, within the parliamentary framework, the path occurs as shown in Fig. 4.2.

4 CHARACTERISATION OF THE PORTUGUESE CASE

MPs / Parliamentary Groups/ Groups of Citizens

Public Discussion

Changing Proposals

Changing Proposals

INITIATIVES

73

Government/Autonomous Communities Legislative Assemblies

Parliamentary Secretariat

Rejection

Registration and Number

Appeal

Committee

Committee

Floor

Floor∗

General Approval

Rejection

Committee

Floor (iv)

Floor

Committee

Parliamentary Decree

President of the Republic

Veto

Promulgation

Ministry

LAW

Fig. 4.2 Legislative process in the Portuguese parliament (Source: Official documentation from the Portuguese parliament). Common Legislative Process (∗ : When a proposal arrives at this stage it can follow two different paths: either it returns to the registration, and numbering, or it is rejected and can make the same path as before.)

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First, individual MPs, parliamentary groups, groups of citizens or the government can propose an initiative (e.g. a member’s bill in the first two examples), or via the government as a government bill (or as an initiative originating in the legislative assemblies of the autonomous regions). After this first step, the initiatives are presented to the floor where they are registered, numbered and announced. At this stage, they can be accepted or rejected. If rejected, there is the right to appeal by the initiator(s) and the initiative will be evaluated by a committee and returned to the floor for voting. If accepted, the initiative is presented to a committee that produces a report about it. Afterwards, it will be subject to public discussion in which changes may be proposed. Then, the proposal is announced in plenary to be discussed and voted on, in general (at this point it can still be rejected). If the main conditions of the initiative are approved, its major details are discussed. This discussion happens within a committee and regarding particular aspects of the legislation. At this time, if it is a member’s bill proposal it can be changed there. By contrast, if it is a government bill, it has to be presented for discussion on the floor. At this time, the proposal should be submitted to the floor to be voted on. Then, the respective committee will make the final draft of the legislation. Later, it will be published as a parliamentary decree. After this step, it will then be sent to the president to be signed (here, it can be vetoed and returned to parliament). If the president accepts the final drafting of the law, it will need ministerial approval to be published in the official gazette (Diário da República).

4.4

PORTUGAL: AN OUTLOOK

On a factual note and in order to have a better idea about the distribution of mandates among the parties, of the political institutions of the Portuguese state, I show how political power was headed by the different political spectra of the society during the period 1980 to 2009. Illustrated by two distinct tables, the following schematised information helps to engender a better idea of the political power distribution within Portugal’s political institutions for almost three decades. Table 4.1 presents all of the nine legislatures that my empirical analysis includes, covering a total period of 27 years. Besides the definition of the legislature, this table contains the name of the prime minister and respective party(ies) that supported her candidature. The last column presents the

Francisco Pinto Balsemão (PSD, CDS-PP, PPM) Mário Soares (PS, PSD) Aníbal Cavaco Silva (PSD) Aníbal Cavaco Silva (PSD) Aníbal Cavaco Silva (PSD) António Guterres (PS) António Guterres (PS) Durão Barroso/Santana Lopes (PSD, CDS-PP) José Sócrates (PS)

II (1980–1983) III (1983–1985) IV (1985–1987) V (1987–1991) VI (1991–1995) VII (1995–1999) VIII (1999–2002) IX (2002–2005) X (2005–2009)

Source: Own illustration based on http://www.portugal.gov.pt and http://www.museu.presidencia.pt/

Prime minister

Legislature

Table 4.1 Legislatures and prime ministers in Portugal (1980-2009)

09.01.1981–30.05.1983 31.05.1983–03.11.1985 04.11.1985–12.08.1987 13.08.1987–03.11.1991 04.11.1991–26.10.1995 27.10.1995–23.10.1999 25.10.1999–04.04.2002 05.04.2002–09.03.2005 10.03.2005–14.10.2009

Dates

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dates regarding her time in office. From a first glance at Table 4.1 it is apparent that six were single-party governments, and in just three cases there was a coalition.21 Both the PSD and the PS were in power for three legislative terms. This tendency is closer to the centre of the political spectrum, and runs parallel to the trend presented in Western democracies with comparable systems. One-third of legislative terms were coalitions, and in the third legislature there was a coalition that was aligned at the centre, once the PS and the PSD coalesced and formed the Central Block (Bloco Central). For the sake of the formal model empirical testing this government is considered, as are the other coalition governments, a government with a majority in parliament and a single actor. I recognise that a one-party government will have distinct internal dynamics from a coalition government but for the sake of the exercise I conduct in this book, these details do not endanger the main framing of the model. In this specific case, the prime minister was from PS. The two remaining coalitions were at the center-right spectrum of the political arena (PSD and CDS-PP), which seems to indicate that it is easier to unite right-wing and center-right parties than left-wing parties. Calca [44] develops previous work by Magone [175] on the rare coalition governments in Portugal for the twenty-first century onwards. By analysing governments and more specifically coalition governments since the 2000s, Calca [44] underlines an overall government instability that ended in the termination of several governments and a prevalence of the decisionmaking process by the Council of Ministers with a strong prime minister (Dominant Prime Minister Model of governance). Within the analysis period, there were three re-elections. Aníbal Cavaco Silva was prime minister in three legislatures (IV, V and VI) over the course of roughly ten years. António Guterres was the head of government for two terms (VII and VIII), for a total of around six years, with the second term ending abruptly with the prime minister’s dismissal. In the ninth legislature, the term was shared by two prime ministers, which meant that each of the prime ministers was in office for a shorter time than the average of the other legislative terms considered in this timeline.

21 There is a vast body of literature on coalitions that may be of interest when looking at some micro-foundations of governmental decision-making. Very recently an important contribution systematising coalition government in Western Europe may be found in Bergman et al. [25] based on a previous book of Mülller and Strøm [208].

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Table 4.2 shows the legislatures and the dates (as in Table 4.1), but now concerning the term of office of the president (not coincidental with the legislature duration period). The last two columns show the number of presidential political vetoes, first with total initiatives coming from the parliament and second with total initiatives from the government directly (PCM). Table 4.2 shows that of the four presidents, two were supported by the PS and one by the PSD and CDS-PP, demonstrating a clear division between the center-left and center-right of the political spectrum. However, in the first presidency, Mário Soares, as a historical member of the party, was supported by the PS. But in his second term in office he was also backed by the PSD, making him the recipient of a broad range of support that increased from one election to the other. There is a high variation in the percentage of government legislative success (an interval of between 67 and 27%), and a reduction of success concerning MP bills. According to the legislative success rates, initially there was the idea that parliament and government followed similar lines of action, but this notion has faded over time. In the early years of democracy not many bills were voted down by the parliament [212, 311]. In Portugal, studies about the government, from an institutional perspective, have been sparse and have mostly used qualitative techniques and are essentially descriptive. For instance, in Portas and Pulido Valente [229], the authors write about the cabinet, and more precisely, the prime minister. They develop their research by investigating the political conditions needed to maintain executive power, the relationship between the prime minister and the media, and cabinet decisions. Lobo carries out a broader analysis of the Portuguese government as she investigates the Portuguese government during the democratisation and consolidation period [164, 89]. This research strategy uses interviews with past government members in order to deduce that, depending upon a set of circumstances, the system has matured from the transitional period. After conducting an analysis of some legislation, the author concludes that from 1976 onwards the government strengthened its position on the definition of public policies [164, 25–26, 185]. Alongside the works that only deal with the Portuguese case study, other studies incorporated and analysed Portugal as an institutional unit in a comparative framework, for instance King [139], Pasquino [218] and Lancaster [155]. Identically, some work on the Portuguese political institutions has already been developed. The parliament of Portugal has been studied

09.03.2006–09.03.2011 (until 2009)

Jorge Sampaio (PS)

Aníbal Cavaco Silva (PSD & CDS-PP)

12

12

12

0

Vetoes parliamentary origin

0

63

25

13

Vetoes government origin

Source: Own illustration based on documentation provided by the Portuguese presidency and by the Portuguese parliament archives. Because the total numbers of vetoes is not always coincidental, when there was a disparity I used the totals obtained from the documentation I had access to in the Portuguese presidency archive

09.03.1996–09.03.2006

Mário Soares (PS; PS & PSD)

António Ramalho Eanes (PS)

II (1980–1983) III (1983–1985) IV (1985–1987) V (1987–1991) VI (1991–1995) VII (1995–99) VIII (1999–2002) IX (2002–2005) X (2005–2009)

Dates

14.07.1976–09.03.1986 (from 1982) 09.03.1986–09.03.1996

President

Legislature

Table 4.2 Legislatures, presidents and vetoes in Portugal (1982-2009)

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much more often than the Portuguese government. Over the years of democracy, several attempts to explain the processes and behaviour of MPs have been developed and most of this work has come to light in the last two decades. The first contributions specifically devoted to the study of the Portuguese parliamentary institution date back to the first years of democracy [159, 212]. Lobo Antunes [165] also refers to the democratic consolidation of Portugal via the parliament, looking at the rules that help to establish a more mature system and how this contributes to a successful transition process from a dictatorial regime to a full democracy. Two other important studies on Portugal appeared at the beginning of the 2000s dealing with an institution which has since changed profoundly Freire et al. [98] and Leston-Bandeira [158]. This last book uses the Portuguese example as an important and valuable case to study. It reflects on the changes that occurred in the institution during the years of democracy and it conducts an analysis from the first years of the implementation of the democratic state until the parliament changed and adapted its main functions in a more mature setting. Leston-Bandeira analyses the discussion of budget bills (1985–1995), and offers a closer look at the conduct of actors in this institutional setting.

4.5

CHAPTER FINAL REMARKS

The country description presented in this chapter leads to open questions in need of clarification. It is relevant for the empirical testing of my model to try to understand what kind of formal and organisational relations exist between parliament and government. The primary aim of this chapter was to characterise the legislative system in Portugal. This is not a purpose, per se, but a step in the direction of a more analytical procedure. The information presented here is central to understanding the internal processes of law-making in Portugal and its institutional framework so as to construct the database as accurately as possible. The first Constitution of the democratic era, from 1976, contributed to the maturation of the transition process and, accordingly, played a central role in the reconstruction of the political system. Not just because it is the fundamental law, but also because it managed to aggregate preferences in society, which, in the beginning, were more directly related to military concerns as a consequence of that historical period.

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The constitutional text would be changed once it was subject to the revisions of 1982, 1989, 1992, 1997, 2001, 2004 and 2005. The constitutional revision that is most relevant to this book is the first constitutional revision of 1982, and has to do with the end of the Council of Revolution.22 Other relevant revisions of the Constitution would be directly related to EU integration once Portugal become a full memberstate in 1986. Considered as a semi-presidential system by several Portuguese constitutionalists and other academics, the separation of powers of this system nevertheless entails some conflicting aspects. The diverse characterisation of the system is visible, for instance, but not only, in the legislative process. There, the actors operate in such a way that the main legislative actions converge between parliament and the government, as I show in this book. I do not wish to establish new ways of classifying political systems, but I would like to reflect on how power struggles play out in reality. Furthermore, when thinking about strategic interactions between actors, in this approach, it is thus critical to first describe how the system functions, and which kinds of procedures find their roots in order to deal empirically with law production. The next step will be to examine empirical information about Portugal aimed at constructing the empirical analysis of the formal model.

22 The data analysis conducted in this book is counted from 1982 until 2009, when the financial crisis hit the country and new dynamics were established for a while. The decision about the temporal interval was made because for relevant institutional coherence and comparability of actors’ actions given a specific set of powers.

CHAPTER 5

The Construction of the Database

Abstract This chapter addresses the dataset construction. Covering a period of about 27 years (1982-2009), this dataset was coded from the theoretic perspective previously presented. The operationalisation and respective coding of each of the variables also implied several recombinations of initially coded variables to create variables able to mimic the four scenarios used to solve the formal model. This database is a relevant contribution presented in this book. Keywords Dataset • Operationalisation • Coding • Legislative variables

In this book I present a legislative decision-making model and test it using Portuguese data.1 As this dataset was first used in my PhD dissertation in around 2010, when I first started to work on it, there were no data which were previously coded and readily available [41]. The empirical testing of the model I present here required a solo effort in the coding 1 Greatly inspired by the Empirical Implications of Theoretical Models (EITM) philosophy.

The key objective of the EITM is to provide tools for researchers interested in the predictions of formal models who wish to clarify their mechanisms by integrating empirical data in their analysis by deeply comprehending the data-generation process. For more information about the EITM, see .

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 P. Calca, Executive-Legislative Relations in Parliamentary Systems, https://doi.org/10.1007/978-3-030-92343-3_5

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of a non-existent systematized. Although, as stated earlier, country-specific and comparative data concerning legislative behaviour have recently been the object of growing interest from researchers, resulting in an increase in legislative data coding, Portugal’s legislation is not usually included in these samples.2 Besides Calca [41] and Calca [43], there are only a few works that direct their investigation towards legislative production in Portugal, although from a parliamentary perspective and not considering the role of the government more profoundly.3 This chapter is structured as follows. First, I present major details related to the coding process of the database. Second, I offer an explanation about the conceptualisation and the variables that constitute this legislative database, and additionally I define and explain the dependent, independent and control variables. Third, I offer some descriptive statistics. Finally, I conclude the chapter with some final remarks.

2 From my PhD dissertation was published a working paper with more detailed information about the new database that I use in this book. This description of my database is set out in my paper published as Calca [42]. 3 About these pieces of literature see the Chap. 4 on the characterization of the Portuguese case. In addition, Claro da Fonseca and Guerra Martins [51] present a database in a book chapter that includes the Portuguese case. However, it has two limitations that keep it from being user-friendly. First, it is not coded in English but rather in German, which is an international drawback since a majority of researchers do not understand the language. Second, this work does not have most of the variables needed to test institutional moves by actors, and, consequently, actors’ interactions. In their analysis, Claro da Fonseca and Guerra Martins [51] only presented totals of legislation, and they did not code until the 10th legislature. Another study that deals with Portuguese parliamentary legislation production is the book by Leston-Bandeira [158]. This work is centred around budget bills from 1985 to 1995. As I have noted previously, there is some research about Portuguese institutions and legislative production, but none in a format as comprehensive and complete as the one I present here. Additionally, the database that I coded encapsulates legislative production from the government and the parliament, which is not so common, and will be available with additional information on the following website: . More recently, two studies on Portuguese legislation and the European Union (transposition of European Directives) considered legislative production Calca [43], Calca [40] and Caupers et al. [48]. Both works use data on legislative production but they present limitations, since these data are a small parcel of the country’s major legislative production. They analyse interesting and useful information but as they are not complete, they are insufficient for the testing of my model.

5 THE CONSTRUCTION OF THE DATABASE

5.1

THE CRAFTING

OF A

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DATABASE

Portugal is a case that may work as a convenient example for comparisons and the further disentangling of theoretical and empirical questions to use. Just as I identify the theoretical foundations for a certain mechanism behind several political decision-making processes earlier in this book, I am confident that this case will help shed light on other causal mechanisms in parliamentary and semi-presidential systems. The intriguing aspect of the Portuguese political system is evident in the diverse attempts to classify it. There is no consensus on its categorisation, and there are attempts to incorporate it into theoretical and/or empirical frameworks in several typologies. The Portuguese unicameral system is defined as semipresidential by some, like Duverger [78], Sartori [252] and Elgie [81], or as premier presidentialism by Shugart and Carey [261] or yet as a system that was originally called premier presidentialism and afterwards a parliamentary system, by Diamond and Morlino [68]. Occasionally, because the system falls into a hybrid classification, given its conflicting characteristics, it is neglected or forgotten. On account of this, studying the outlier case that is Portugal can prove to be a suitable way to find new research paths. Identifying legislative powers, and thus political powers, will help to disentangle the effective functioning of the political institutions and the country-specific system. The database’s backbone is all the legislative initiatives inclusive of all the official legislative documents published in the Diário da República.4 The Portuguese legislative initiatives that I coded are from a time frame covering approximately 27 years (1982-2009).5 The data were coded between 2010 and 2013, during several stages of my research and while I was developing and refining my formal model, having dealt with the data that were available at the time. In this database, two possibilities of legislative production were coded. The first relates to the so-called common legislative process and connects

4 This is the Portuguese official gazette. The legislative documents are binding from the

moment they are published there. To access these documents see https://dre.pt/ or http:// www.parlamento.pt/. 5 Those data that I analyse start on 30 September 1982, when the Conselho de Revolução was officially dismissed. This institution had powers that constrained the other institutional powers, such as the government, the president and parliament, in such a way that to include it as part of my analysis would produce a bias and drive the results towards partial conclusions.

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with the legislative process that takes place in parliament.6 The second path of legislative production refers to the legislative process that takes place in the Council of Ministers. I started by coding all the initiatives produced within the PCM7 and all the law initiatives presented in the parliament.8 The coding of my database was carried out in several steps while doing my PhD dissertation and, after the definition of the time frame that I would use, it was useful for the coding process to see if the needed documents were available. At first, the data were not entirely available online, as I stated earlier. The parliamentary legislative information was accessible for only a few legislatures at this stage, and only a subset of the information could be downloaded from the parliament’s website. Nevertheless, I accessed the full set of documents (i.e. all the digitalised information of the Diário da República, from the parliamentary archives) and from that point I started coding it. Later, a list with all the legislative initiatives produced in the Portuguese parliament was made publicly available online, which helped me crosscheck my previous work and contributed to a more accurate and complete database. Once I had listed all the initiatives originated in the Council of Ministers, I listed all the initiatives presented and approved by the parliament. Then, with the two complete lists, which had been previously merged, plus some of the attributes of the legislation such as the title, reference and type of legislation, I created other variables. More importantly, it was from this initial information that I generated a variable in order to operationalise my dependent variable. Starting from this structure, I added institutional variables (e.g. party(ies) in power, vetoes enacted by the president and European Union-related legislation, among others). The coding of these extra variables, some with a relevant strategic feature, enabled me to test the formal model as accurately as possible within this framework.9

6 More information about these processes is available in Chap. 4 about Portugal. 7 The presidency of the Council of Ministers (PCM) is the cabinet. There, governmental

policies are defined, their execution is planned, and other actions associated with the duties and powers of the government are materialised. For more information on the composition of the Council of Ministers see the CPR [62], Article 184 (1) and Calca [38]. 8 Despite my main concern lying with the proposals from the government, I had to consider the other actors in order to test the first actor’s strategic moves. 9 For more on each variable, as well as their conceptualisation, operationalisation and measurement, see the next subsection.

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The total process of data compilation proved to be harder than expected, particularly due to the structure of the available information. Upon close inspection of the Portuguese parliament’s website, it is apparent that the legislative initiatives and the approved initiatives pages are connected by links but separately constructed. More recently, I confirmed that the website changed again. At the time of my initial coding, the linkage between proposed and approved initiatives needed to be made and I had to match the data in order to have a procedural logic (proposal −→ approval).10 After the completion of this cleanup process, I matched the initiatives with the approved initiatives. Then, I was able to match the observations of the database, which changed its final structure. This means that in cases where several laws have the same legislative initiative and therefore the initiative is repeated, the output (final law) will be different. Conversely, various laws could have several legislative initiatives as origins. The next step was to check for and erase any duplicates, which could occur due to the partially automated retrieval of the data. Once I had merged the two datasets, I still had to add the initiatives proposed by the PCM. The source of this information is not the same 10 During the coding of the initial dataset, while navigating the parliamentary website, one could see in the left-hand menu of the homepage that there was a link to the Parliamentary Activity and Legislative Process. If you were to follow this link, you could see further breakdown between Legislative Initiatives and Approved Legislation. By clicking on the options, you could find separate pages, each with relevant aspects that could be selected: type of law, legislature, date and legislative session, among others. Even with relevant information, the two types of action (initiatives and accepted initiatives) were not directly connected. To find a relationship you would have to search through several layers of information and click on several links. It was this structural aspect that made the data matching necessary and much more time-consuming and problem-prone than expected, even in the moments where some automated coding was possible. For this reason, and in order to match both sets of information–the listed and the downloaded data–I had to clean the database of features that were not needed. This cleanup also involved other tasks, such as correcting mistakes in the information from when it was introduced on the website, spelling errors and typos. This data cleaning was done both automatically (any time it was possible) and manually, given the specifics of the mistakes encountered. Dealing with elements such as the titles and the abstracts of the legislation was not simple, typically due to the Portuguese encoding. This was one of the hardest tasks to carry out because of the specific features of the Portuguese language, such as the use of diacritics (ç, ˜, ˆ). This task is not easy to manage, even using such powerful software as R (http://www.R-project.org). Typing mistakes, extra spaces before and after words within the cells, and changes made by the alternate use of Macintosh and Windows computer environments, among others, created extra problems to be solved. Only after this time-consuming process were the data ready to be matched and merged.

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as that of the parliamentary initiatives and approved initiatives. For this reason, and given the different structures of these datasets, I had to adapt their features in order to merge them. It was after this long process that I finally had the complete and necessary database to test my formal model.

5.2

FROM CONCEPTUALISATION

TO

MEASUREMENT

Previously, I provided more detailed information about general theorisations that helped frame my approach in this book. To study the strategic legislative behaviour of the government, it was essential to define dimensions that helped frame the central concepts of my argumentation. Legislative data is, in general, quite straightforward from conceptualisation to operationalisation, not forgetting the measurement of these variables. In principle, this happens because the initiatives (all the proposed and all the accepted) were coded as observations, which gave rise to the needed variables. What is not so simple is the structure of the datasets, the institutional implications of processes and stages, and the bitter taste of not being able to insist on an answer from a respondent as this was not about individual perceptions. In the case of this dataset, coding the legislation as data entries of a given variable was the most fruitful thing to do and allowed me to empirically test my model. Most of the time, it is the use of the law production that produces the variable values needed to test scientifical hypotheses empirically and to answer research questions. I followed this same logic and coded legislation types, legislation reference numbers, initiative proponents and two variables that can potentially reflect strategic aspects (the choice between an executive law and a government bill),11 among others. In the variables that reflect strategic aspects, the interactions among actors and respective strategies were automatically incorporated due to their basic nature. I also coded some other variables that served as controls for my analysis. Not being directly related to my

11 Concerning the conditions under which governments are more likely to initiate an executive law (legislation that is defined in the presidency of the Council of Ministers by the government) or a government bill (legislation that is presented to the parliament by the government and all the other legislation proposed by opposition parties and approved or not) it was necessary to know which proposals were initiated by the government during the analysed time period. Additionally, other relevant institutional features were incorporated in the database, such as the legislature in which the proposals were initiated or the party(ies) that supported the president’s candidacy.

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theory, it could arise that these aspects drive possible results provoking effects that I could not explain, a good example of which is issue-related characteristics. To analyse the conditions under which the governments are more likely to initiate an executive law or a government bill, there was a need for the realisation of which proposals the government had proposed over time. In addition to that coding, other institutional features which were considered potentially relevant were incorporated into the database, for instance the legislature to which the proposal belonged, and the party(ies) that supported the president’s candidacy, among others.

5.2.1

Dependent, Independent and Control Variables

The data that I use to test my model and its hypotheses cover a period of 27 years (1982–2009) and a total of nine legislatures. The data were not further extended, since the impact of the financial and economic crisis led to an external intervention in the country creating several years’ constraints to the executive and legislative branches. This database presents all the initiatives that took place in the Council of Ministers and all the legislation initiated and approved by the Portuguese parliament during this time frame. As already stated, other institutional variables were added to this information. Among others, I am talking about an identification of the president in office, which legislation the president vetoed, and the left-right positions of the parties represented in parliament. The approved initiatives were matched with the information regarding the parliamentary initiatives. Afterwards, it was possible to identify which became law. I also bore in mind governmental initiatives (because of the project I was developing and because it was my primary goal to look at governments’ legislative behaviour), theoretically considering that the government as a legislator makes strategic calculi in order to propose laws that, in principle, are approvable. I have coded all the legislative initiatives, distinguishing the ones raised by the opposition (all the parties that were not in office) and by the government.12

12 Not all the legislative initiatives are approved and enacted as laws and not all the passed

legislation has its origins in parliamentary initiatives, for example international agreements or the transposition of European Union directives.

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Every observation in the database corresponds to an initiative (from the parliament or from the presidency of the Council of Ministers) or an approved initiative, and it can have its origins in government or the opposition. I assumed that all the proposals made by the parties in office (even if not declared government proposals on the parliament website) were considered governmental proposals, and the same happened when I aggregated the proposals of the out-of-office parties in a broader category referring to the opposition proposals. For reasons related to the structure of my model, it was important to recognise that all the proposals that are governmental initiatives were aggregated. As for the other proposals, the ones that were initiated by the parties in the opposition and within parliament, they were aggregated as belonging to one opposition and not as being initiated by several parties that were in the opposition. This aggregation of proposals is empirically relevant and theoretically comes from the frame of my formal model. My main idea was to keep to the three actors, which is complex but still tractable. If I considered all the opposition parties one by one and as distinct actors, it would make the task of solving and testing the model extremely cumbersome. Adding more actors in this way would probably not increase the explanatory power of this model or the clarification of the causal mechanisms. In Table 5.1, the variable names are defined in the database. I do not highlight all the variables that the database contains, but I give a more in-depth characterisation of the variables that do not have a natural and immediate interpretation and need further explanation.13 I dedicate the

13 Two of the variables that I coded in this dataset, which comprises a total of 48 variables, are identification variables regarding its coding, so I do not report them here. Also, not all the variables presented in Table 5.1 are relevant in terms of content for eventual analyses, but they were useful in organisational terms and were important to help in the construction of the final database. They are: (1) Orig—origin of the initiative (if it is legislation proposed in the parliament or the Council of Ministers), (2) Filna—the name of the file that was downloaded from the website of the parliament in order to be able to match and merge the entries, (3) Pub—the publication reference, (4) Appr—the information on whether a given initiative was approved or not, (5) Obs—observations, (6) Prop—the type of proposal, (7) Legis—legislature, (8) IniTyp—the initial type of initiative, (9) TypLaw—the type of legislation created after approval, (10) Num—the number of the proposal and (11) Ref —the reference to the proposal.

Identification

Origin File name Title Publication Approved Observations Proposal Legislature Party in power 1 Party in power 2 Party in power 3 President of the republic President of the republic party of support 1 President of the republic party of support 2 President of the republic party of support 3 President of the republic party of support 4 President of the republic party of support 5 President of the republic party of support 6 President of the republic term Initial type Type of law Number Reference

Variable

Orig Filna Tit Pub Appr Obs Prop Legis PartPow1 PartPow2 PartPow3 PR PRPartSupp1 PRPartSupp2 PRPartSupp3 PRPartSupp4 PRPartSupp5 PRPartSupp6 PRTer IniTyp TypLaw Num Ref

PropSig1 PropSig2 PropSig3 PropSig4 PropSig5 PropSig6 PropSig7 PropSig8 VetoPar VetoGov Titabst CAPCod el_gb1 EU str maj min wea el_gb2 med_leg_pos med_leg_part1 med_leg_part2 med_leg_part3

Variable

Proposal subscriber 1 Proposal subscriber 2 Proposal subscriber 3 Proposal subscriber 4 Proposal subscriber 5 Proposal subscriber 6 Proposal subscriber 7 Proposal subscriber 8 Veto of parliamentary proposals Veto of government proposals Title and abstract Project code comparative agendas Executive law/governmental bill European union Strong government scenario Majority government scenario Minority government scenario Weak government scenario Executive law/governmental bill (strategic) Median legislator position Median legislator party 1 Median legislator party 2 Median legislator party 3

Identification

Table 5.1 Variable name and identification of data, Executive Laws and Government Bills (1982–2009)

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following sections to these variables which are defined in my model and are used in my empirical analysis, as well as respective observations. Dependent Variable The construction of the dependent variable resulted from the operationalisation of other variables that incorporate law characteristics and institutional settings. The government having to choose between initiating an executive law or a government bill is the primary strategic behaviour that I want to explain, this being my dependent variable.14 When I coded this new variable (el_gb1) I created it as a dummy variable (I attributed the value one, 1, for the cases of an executive law and the number zero, 0, for the cases where a government bill was enacted). With the same idea in mind, I coded another variable that is a slight variation of this one. I am referring to the variable called el_gb2. It follows exactly the same logic as the previous one but instead of considering the total number of proposals, I only considered those that were strategic for the government. When coding the dependent variable, I did not directly use the opposition bills, since my interest relates to the strategic calculation of the government when proposing a bill and, therefore, when the choice is made between a executive law (within cabinet) and a government bill (within parliament). The type of legislation proposed and approved was particularly relevant to creating the variable el_gb2. This strategic variable concerns law proposals that could be presented either as an executive law or as a government bill (excluding all the others that are specifically from one of them). This means that I could derive this strategic aspect of the type of law within the initiatives.15 14 This variable incorporates the executive laws and the government bills plus several other types of legislation. This variable is an aggregation of particular rules proposed in the Council of Ministers which, for the sake of simplicity, I named executive laws, and the other legislation introduced via the government in the parliament, which I named government bills. 15 There are ten possible types of initiatives in parliament: Legislative Parliamentary Consideration (Apreciação Parlamentar), Popular Initiative (Iniciativa Popular), Popular Inquiry (Inquérito Parlamentar), Draft Decision (Projeto de Deliberação), Member’s Bill (Projeto de Lei), Drafted Rules of Procedure (Projeto de Regimento), Draft Resolution (Projeto de Resolução), Draft Amendments to the Constitution (Projeto de Revisão Constitucional), Government Bill (Proposta de Lei) and Draft Resolution (Proposta de Resolução). There are eleven types of approved initiatives: Constitutional Decree (Decreto Constitucional), Decree of the Republic’s Assembly (Decreto da Assembleia), Decision (Deliberação), Law

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Independent Variables There are several possible explanatory aspects that can influence the choice of the government regarding legislative formats. To test the four scenarios of the formal model, I first describe how I operationalised the scenarios, and then how I coded the respective variables. (i) Strong, Majority, Minority and Weak Government Scenarios I derived four possible scenarios to solve the formal model of this book. Empirically this can be relevant because it stylises the reality in such a way that institutional features can be relevant for other studies. These scenarios relate to particular conjunctures that drive actors’ moves and are thereby conditions which frame their actions. Pursuant to the operationalisation of the Portuguese political institutional features and conjectural aspects, it was relevant to create variables that would operationalise actors’ constraints in particular scenarios. Following this logic, I defined a strong, a majority, a minority and a weak government scenario that are defined based on similar or distinct political spectra and the alignment of the actors therewith. When a Strong Government Scenario exists, all the political actors are from the same political spectrum. In a case where there is a Majority Government Scenario, the majority in parliament is from the same political spectrum as the government and the president is from a different one. When a Minority Government Scenario exists, the majority in parliament is from a different political spectrum than the one occupied by both the government and the president. Finally, the Weak Government Scenario occurs when the parliamentary majority and president are from the same political spectrum but from a different one from that of the government. To have a better idea of these possible scenarios when applied to the Portuguese case, see

(Lei), Constitutional Law (Lei Constitucional), Organisational Law (Lei Orgânica), Rules of Procedure (Regimento), Rules of Procedure of the Republic’s Assembly (Regimento da Assembleia da República), Resolution (Resolução), Republic’s Assembly Resolution (Resolução da Assembleia da República) and Correction (Retificação). The legislation originating in cabinet can have the following format: Agreement (Acordo), Warning (Aviso), Contract (Contrato), Declaration (Declaração), Declaration of Correction (Declaração de Rectificação), Extract-Declaration (Declaração-Extracto), Decree (Decreto), Executive Law (Decreto Lei), Regulatory Decree (Decreto Regulamentar), Decision (Deliberação), Order (Despacho), Joint Order (Despacho Conjunto), Order-Extract (Despacho-Extrato), Normative Order (Despacho Normativo), Extract (Extracto), Instruction (Instrução), List (Listagem), Praise (Louvor), Ordinance (Portaria), Protocol (Protocolo), Correction (Rectificação) and Resolution (Resolução).

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Table 5.2 Possible scenarios per legislature and actor Legislature/actor II III IV V VI VII VIII IX X

Government

Majority in parliament

President

= = = = = = = = =

= = = = = = = = =

= = = = = =

=

= =, =

Variable maj min wea maj str min min maj str, maj

the following table. Table 5.2. helps to clarify several points, for instance the first is that on the 8th legislature the parliament was divided in half: 115 MPs from PS (the government) and 115 from the opposition (as I aggregated). Nevertheless, I coded this legislature identically to the previous one, with a majority in government because despite the weaker position of the government, there was no chance of approval of a motion of censorship to dismiss the government what would require half of the MPs plus one. Second is that in the 10th legislature, there are two different indications in the variable column because the president changed after the presidential elections, and the new president was from a different political spectrum from that of the government. From 3 September 2006 the scenario changed from the Strong Government Scenario to a Majority Government Scenario. The third is that, out of all scenarios, there was just one case of a Strong Government Scenario (half of one presidential term) and just one case of a Weak Government Scenario. The other institutional conjunctures produced five legislatures where the Majority Government Scenario existed (again, one of the cases only lasted for half a legislature), and three cases corresponding to a Minority Government Scenario. (ii) Party in Power To know if it was any of these party’s members who proposed a given piece of legislation, I had to match who was in office at the time of the proposal and who was the proponent in parliament. To operationalise the coding of this variable, I had to consider that a law sponsor in parliament

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could be in any one of the three possible parties in power (when more than one party shared the office), therefore coding it (together with the government proposing it in parliament) as zero, 0, (government bill), with all the legislation that was introduced with a cabinet origin being coded with a one, 1 (executive law). This variable helped me verify whether any one of the parties in power was a proposer of a particular law, and if that happened I coded it as a governmental proposal. The coding of this variable was made using the acronyms of the parties. (iii) Proposers It is important for my analysis that I differentiate between the proposers. First, because I am mainly interested in the proposals from the government, or the proposals presented in parliament by the party(ies) in government, and second, because I also had to operationalise these proposals by opposition to the proposals from the majority in parliament. I aggregated the initiatives of the party(ies) in government as government initiatives, and thus the government and the majority in parliament function as a unitary actor. If at least one of the parties in government was a signatory of a legislative initiative, I coded it as a proposal by the government. I followed the same rationale when there was a proposal by one of the ministries. I did not consider proposals with other origins. I also aggregated all the proposals made by the opposition parties considering–as in the model– just one.16 This variable is relevant for the creation of the other variables, especially those related to the scenarios and the dependent variable in itself. (iv) Legislature The distinction between legislatures was necessary to see the positioning on the political spectrum of each government. Afterwards, I checked whether those positions were coincidental with that of the president during her mandate(s). The same was done with regard to the idea of majority or minority governments. I considered the legislature as the unit of time division. The classification of law proposals by legislature also helped aggregate other units which were relevant to the analysis, and to the definition and description of the four scenarios. To code the variable I used

16 There are not too many studies that consider the opposition parties in the analysis

of legislative output [34, 10]. In introducing the majority in parliament, I must take into consideration the opposition parties.

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Roman numerals. In Portugal, the legislatures are usually denominated with these numerals, and I decided to use the same logic. (v) President Supporters To know who supported the president is relevant for positioning this actor on the political spectrum.17 In general, although she represents all the Portuguese citizens and usually does not have official party affiliation, the institutional support for presidential candidacies comes from the parties. Thus, it is important to look at the distribution of parties, in and out of office, and their positioning along the political spectrum, and to know which of them supported the president’s candidacy. To identify and code who supported the president, I used the acronyms of the parties. (vi) President Vetoes I examined the president’s vetoes in order to determine whether they related to the conditions present in the four scenarios. In fact, if one considers the rational choice approach, a veto should not occur in a perfectly rational world, where the actors make their calculi about their actions and the other actors’ actions, since it will be avoided preventively. However, a few do indeed appear in the variable elg b1, while none appear in the strategic variable elg b2. Also, when the total number of vetoes is compared with the large numbers of pieces of legislation proposed and approved, one can easily understand my argument. In Portugal, two kinds of veto can be enacted. One is related to Constitutional Court vetoes, and this type of veto is linked with the disrespect for the CPR [62]. The other regards a power of the president, who can exercise vetoes, but this type of veto can be overridden by parliament if, therein, a majority votes against the presidential veto. These are two dummy variables coded with a one (1) in the case of a presidential veto for an initiative coming from the parliament and in the next variable from the government, or a zero (0) for the absence of one. In the period covered by the database, I identified a total of 36 presidential vetoes of legislation with parliamentary origin, which works out to an annual average of one point three (x = 1.3 per year). On the other hand,

17 In Portugal, the citizens directly elect the president. In the database, when I refer to the

president’s supporters, I am talking about the parties that publicly declared their support for their candidacy.

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I identified 101 vetoes with presidential origin from legislation coming directly from the government (PCM), which means an annual average of three point seven (x = 3.7 per year). Finally, from the strategic dependent variable that I created, none of the vetoes of legislation with parliamentary origin is coincidental with them, and of the ones with government origin, only three were vetoed by Mario Soares. This aligns with what should be expected, as none or very few should exist in an institutional setting such as the one the country presents.18 Control Variables The main focus of this book being the strategic choice between two types of legislation, one should consider that other variables can be influential and drive the effects of the independent variables. In order to avoid confounding results, I defined some control variables. In my analysis, I control for issues of the legislation,19 European Union-related legislation, the term of the president and the position of the median legislator. (i) Issues Since it is possible that law proposals and eventual vetoes could relate to the significance of topics, I used the Comparative Agendas Project coding, which considers issue attention and classifies the policies into topics. The issue factor can lead to a potential increase or decrease in the likelihood of a particular legislative initiative being proposed and even approved. In other words, according to the issue of a certain initiative, its legislative relevance could be distinct, which depends on the proposer and the conjuncture. Furthermore, it is to be expected that certain proponents pay more attention to particular issues than to others (e.g. core ideologydriven issues).

18 The three vetoes were made during the second presidency of Mário Soares: the first

one on 17 December 1993 on the regulation of university fees; and the second on 20 February 1995 regarding loans, with state guarantee, for social associations. The third and last one happened on 13 October 1995 on the status of the Portuguese public notaries. These informations were compiled from the Presidency of the Portuguese Republic Archive. 19 In this book when I refer to issue, I adhere to the agenda-setting notion on the issues (more specific) rather than topics (more general themes) as objects of public attention. This concept goes together with the broader notion of political agenda as a set of issues that are present in enacted policies.

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The decision to introduce a specific law or not can be determined by the issue of the legislation. Because this aspect does not directly relate to the design of my formal model but can be introduced indirectly in its cost structure, I decided to control for the issues of the proposals. In Table 5.3 I is shown the relevant issues regarding law production. This coding scheme has been developed by several country-specific teams. They aggregated issues into these main topics and have been using them in several units of analysis (various countries), and not just regarding policies or legislative initiatives, but also in other environments like issues present in newspapers. More recently, the intention has existed to congregate possible countryspecific differences in a unique coding scheme, especially at the sub-topic level, which I do not use in this book.20 It is possible that some initiatives can relate to several topics. However, in the coding, I had to define just one topic per observation, so I always define it considering the stronger one and code it accordingly. I used 21 topics in order to organise the issues around the topics defined by CAP. By using this coding scheme, I also facilitate future comparisons with data from other countries, giving this database a relevant and comparative feature. (ii) European Union-Related Topic Because the European Union has legislative power which extends to the member states, it could happen that EU-related legislation (not necessarily transpositions) drives the strategic choice of the government concerning the type of law. It is because of this that I coded a dummy variable in which issues related to the European Union are coded with a one (1) and the ones that are not are coded with a zero (0). All the legislation (proposed and approved) that had any reference to European Union affairs in its title or abstract was coded as being an EU-related topic. (iii) President’s Term It could be relevant to consider the first and the second terms of the president as variables because they may have been distinct. My initial idea, while coding this variable, was to see if during their first mandate, the

20 For more information about the Comparative Agendas Project (CAP) see http://www. comparativeagendas.info. The standard coding procedure of the CAP project is to have more than one coder. However, due to resource constraints, for this database the coding was only carried out once by me, although it was confirmed once.

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Table 5.3 Coding number and respective topic—comparative agendas project Codes

Issue title

1 2 3 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 23

Domestic macroeconomic issues Civil rights, minority issues, and civil liberties Health Agriculture Labor and employment Education Environment Energy Immigration and refugee issues Transportation Law, crime, and family issues Social welfare Community development and housing issues Banking, finance, and domestic commerce Defence Space, science, technology, and communications Foreign trade International affairs and foreign aid Government operations Public lands, water management, and territorial issues Cultural policy issues

Source: Comparative Agendas Project, Master Codebook, available at: http://www.comparativeagendas. info/?page_id=101

fact that the president could still be elected to a second term would make a difference, as opposed to the second mandate where they would have reached the term limit. With this variable coded, I wanted to check whether the president being in the first or the second term had an impact on the results, especially in the potentially strategic version of the dependent variable (el_gb2). In other words, this variable helps understand whether the term (first or second) of the president affects the governmental choice of the type of law (government law or executive bill). The coding of this variable was one (1) for the first mandate and two (2) for the second and limit term.

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(iv) Median Legislator The calculation of the median legislator was also included in the database. Because in the case of Portugal there is party discipline,21 I assume that the median party is the median legislator.22 This measure helps us understand the relative position of parliamentary parties along a left-right dimension. The latter is a standard measure of a spatial model of politics commonly used to position the preferences of parties regarding policies within a spatial dimension. When I refer to the median legislator I highlight the party(ies) in the middle, having 50 per cent of the MPs on the left side and the remaining 50 per cent of MPs on the right side. I added the calculated effective position and the party names of the median legislator(s).23

5.3

DESCRIPTIVE STATISTICS

OF THE

DATABASE

After matching initiatives and approved initiatives (carried out for the parliamentary legislation), my database has 43401 data entries and 48 variables.24 Table 5.4 shows, in a synthesised manner, the descriptive statistics of the most relevant variables within the dataset (and the corresponding subset). 21 In most parliamentary democracies, because of party discipline, when MPs vote for legislative proposals they usually follow the party line. A broader discussion about this point can be found in [124]. 22 For a discussion on how the median legislator is closer to the majority party median and how this may influence the legislative process see [288]. 23 About this data see the Manifesto Project dataset available at . For coding procedures, literature-related and developed studies see Volk et al. [278]. 24 Although the number of initiatives presented in parliament is, in principle, included in the data from the cabinet it may happen that it is not. According to the services of DIGESTO that are services part of the Portuguese presidency of the Council of Ministers and concern the Integrated System for the Treatment of Juridical Information; more information on them is available at . According to DIGESTO services, this specific database is always being updated, even in terms of past legislation. It is important to underline that the final information that I extracted was retrieved on 28 November 2013 and given their capacities, the updating of legislation can be made, meaning that it may be the case that, currently, more cases are presented there. However, still considering these the most important entries that that are certainly there and only residual data could be missing. Statistically, eventual missing cases would not interfere with the direction of the results.

N 42,602 137 25,831 42,602 42,602 42,602 42,602 42,602 42,602 42,602 42,602 –

Variables

PRMandate Veto totals el_gb1 Strong government scenario Majority government scenario Minority government scenario Weak government scenario Majority Minority Government and president of the republic Government and majority in parliament el_gb2

Table 5.4 General descriptive statistics

1 1 0 0 0 0 0 0 0 0 0 –

Total Min 2 1 1 1 1 1 1 1 1 1 1 –

Max 18,341 – 18,341 18,341 18,341 18,341 18,341 18,341 18,341 18,341 18,341 18,341

N

1 – 0 0 0 0 0 0 0 0 0 0

Subset Min

2 – 1 1 1 1 1 1 1 1 1 1

Max

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24000 20000

Totals

16000 12000 8000 4000 0 Government Bills

Executive Laws

Fig. 5.1 Total of government bill initiatives and executive laws (1982–2009)

I opted not to include the standard deviation and median values in the table because they are dummy variables that, in essence, do not give us additional information. Table 5.4 presents the descriptive statistics of the database either considering the totals, or with the subset of the dependent variable. Considering the frequencies of Fig. 5.1 it is apparent that there are almost twice as many proposals for executive law (22748) than law initiatives for government bills (12674).25 When looking at Fig. 5.2 one can see that, as expected, the total of approved initiatives (7182) is lower than the number of initiatives (12674), with a 57 per cent approval of the entire universe of proposals within parliament.

25 Note that this is from the total number of data entries coded as approved initiatives;

some did not go through a first step as initiatives. In these cases, they do not count as initiatives because they have a distinct law-making process from the ones I have mentioned.

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14000 12000

Totals

10000 8000 6000 4000 2000 0 Government Bills (I)

Government Bills (A)

Fig. 5.2 Total of government bill initiatives and approved government bills (1982–2009)

6000 5000

Totals

4000 3000 2000 1000 0 II

III

IV

V

VI

VII

VIII

IX

X

Fig. 5.3 Government bill initiatives and executive laws, per legislature (1982– 2009)

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3000 2500

Totals

2000 1500 1000 500 0 II

III

IV

V

VI

VII

VIII

IX

X

Fig. 5.4 Government bill initiatives and approved government bills, per legislature (1982–2009)

Paying attention to the proportions of government bill initiatives and executive laws by legislature, which can be seen in Fig. 5.3,26 some trends are observable. For instance, in this graphical representation there is always a higher quantity of cabinet-originated legislations compared to parliamentary initiatives. Taking into account the proportion of government bills to executive laws by legislature, as shown in Fig. 5.3, some trends can be seen. First, the number of executive laws is always higher than the number of government bills and this is especially evident in the 7th legislature. On the other hand, the lower differences between executive laws and government bills, in relative terms, occur in the 9th and 10th legislatures. Looking at Fig. 5.4,27 one can have an idea of the totals for approved initiatives and initiatives in the parliament, now by legislature. On average, there were 1408 legislative initiatives. In terms of approved legislation, the total average of approved laws was 789 per legislature. Finally, looking at executive law initiatives, the number is higher, there having been on

26 Darker grey is the legislation with parliamentary origin and lighter grey is the legislation

with cabinet origin. 27 Darker grey are the bill initiatives and lighter grey are the approved government bills.

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3000

2500

Totals

2000

1500

1000

500

0 Government Bills (I)

Government Bills (A)

Fig. 5.5 Boxplot of government bill initiatives and approved government bills, per legislature (1982–2009)

average 2528 legislative acts per legislature.28 Nevertheless, concerning the previous distributions of initiatives from the parliament, the resulting approved initiatives, and the proposals that originated in the presidency of the Council of Ministers, some aspects related to their distributions should still be analysed. Looking at Fig. 5.5 one can see that the distribution of the two variables is identical, which makes sense considering that the approved initiatives are a subset of the initiatives. In the boxplot above, there are no outliers in the upper fence and behind the lower fence. When considering Fig. 5.6 no visible outliers are present. However, we can see distinct seat distribution there. Executive laws and government bills have a different

28 When calculating the average of totals per year, there were 845 executive laws and 469 government bill initiatives (266 approved).

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6000

5000

Totals

4000

3000

2000

1000

0 Government Bills

Executive Laws

Fig. 5.6 Boxplot of government bills and executive laws, per legislature (1982– 2009)

distribution, given that the second shows a median very close to the upper bound of the box. Figure 5.6 shows the information about the initiatives in the parliament, as well as all the approved legislation originated in the presidency of the Council of Ministers. Analysing Fig. 5.7 with just the strategic laws, there are no outliers. Here, the mean is in the lower part of the box and, regarding the initiatives, the distribution follows in the same sequence as before. The next graph, Fig. 5.8, presents an outline of the types of legislation per legislature. It illustrates the evolution of the total numbers per legislature and shows a typical development. The trend of government

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5000

Totals

4000

3000

2000

1000

0 Government Bills

Executive Laws

Fig. 5.7 Boxplot of strategic government bills and executive laws, per legislature (1982–2009) 6000

Executive Laws Government Bills (I) Government Bills (A)

5000

Totals

4000 3000 2000 1000 0 II

III

IV

V

VI

VII

Fig. 5.8 Types of legislation, per legislature (1982–2009)

VIII

IX

X

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bill initiatives, of approved government measures and of executive laws is very similar, with the exception of the 8th and 9th legislatures, where the executive laws decreased, contrasting with the moderate increase in government bill initiatives and approved government bills.

5.4

CHAPTER FINAL REMARKS

This database of legislative documents (proposals and approved proposals) presents new coded data for Portugal covering a 27-year period (19822009). The raw database contains 43401 observations and 48 variables. The reason why this database was constructed is directly related to the puzzle I was dealing with, that is, I wanted to know the circumstances in which a government will decide on a legislative path with regard to the choice of legislative instrument between a governmental bill and an executive law. First I coded my dependent variable. Because of the nature of the data, I did this in two distinct ways, initially using all the possible data, and then by subsetting the initial data according to some extra criteria, resulting in what I called the strategic variable. Moreover, and after operationalising the dependent variable, with the aim of answering my research question, I coded independent variables and control variables. These variables were defined from the operationalisation of my formal model via its respective hypotheses. I derived an explanatory variable from four possible institutional settings. These are (a) Strong, (b) Majority, (c) Minority and (d) Weak Government Scenarios. They were constructed from the use and re-coding of other variables that I had previously coded. I am referring to the proposers of a given law, the party in power at the time of proposal, the legislature, the president’s supporters (party/parties) and eventual presidential vetoes. To reduce effects that could drive my results but about which I did not have a theoretical explanation, I controlled for the issue of the proposal, whether the topic was related to the European Union, the term of the president and the median legislator.29

29 Other controls were used in the empirical analysis. However, because they do not

directly relate to the theory that I present, I do not extend the explanation of their use. More information about these variables is available in the corresponding section of this chapter.

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This database is one of the central contributions of this book. In future, it will certainly foment the inclusion of the Portuguese case in more extended datasets of comparative research. Additionally, and because of its uniqueness as a useful tool for several future usages, it will certainly be of interest for a vast academic community. Making it available publicly will thus help boost this area of study, either about Portugal or internationally, by adding the Portuguese case as one more unit of analysis [42]. Due to the fact that it contains legislative and institutional data of an understudied country, it can also be combined with already existing data, such as electoral results, economic indicators or survey results, these being potentially useful for a broad range of political and social sciences studies. The temporal scope it covers permits a wide range of possible analysis given the large numbers it contains. All in all, its empirical trends may serve as starting points for legislative reasoning, institutional framings, comparative investigations and other approaches that I hope can be undertaken in the future. Another novel facet is that this database incorporates strategic aspects related to the choice of types of legislation. As an innovative codification, it may help to grasp strategic interactions among actors in other settings as well, given that it relies on a strong theorisation.

CHAPTER 6

Empirical Implications of the Formal Model

Abstract In this chapter, I offer an empirical analysis of the formal model using a binomial logistic regression. The four hypotheses deduced from the formal model are confirmed empirically with data from Portugal. The empirical test of the model shows that governments will more likely enact an executive law when they are minority or weak governments, and a government bill when they are majority or strong governments. I also show that in the choice of a legislative instrument, the president has little influence, what does not mean that the president will not have other ways to influence public policies. But, the Portuguese president is, nevertheless, a non-executive actor. Keywords Empirical analysis • Testing of hypotheses • Scenarios

The study of legislative behaviour has been developed around two different main approaches. While some literature is, essentially, a description of the processes and actors involved, sometimes using large datasets that manage to go further in their analysis, the remainder incorporates formal work with strategic components. The integration of these two approaches can

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 P. Calca, Executive-Legislative Relations in Parliamentary Systems, https://doi.org/10.1007/978-3-030-92343-3_6

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be useful, although this does not happen very often.1 In this chapter, I incorporate both, using the previous formal model expectations and testing them empirically. I will assess the derived hypotheses from the propositions of the model and then I will move towards one of the more useful and attractive aspects related to the use of formalisation, which is the testing of deduced empirical predictions. This chapter is structured as follows. First, I conduct a logistic regression using the government’s choice between an executive law and a government bill. Second, I offer the same statistical test, but now with the strategic dependent variable (a subset of the first dependent variable). Finally, I present some conclusions.

6.1

TESTING

THE

THEORETICAL PREDICTIONS THE MODEL

OF

To test my theoretical model and its hypotheses I used data concerning the Portuguese government and legislative initiatives originating in either the cabinet or the parliament. In order to have a better sense of what I am testing in this chapter, I recall that the hypotheses that I deduced from the formal model are as follows: 1. In a strong government scenario, there is a higher likelihood that the government will propose a government bill.2 2. In a majority government scenario, there is a higher likelihood that the government will propose a government bill.3 3. In a minority government scenario, there is a higher likelihood that the government will propose an executive law.4

1 To have a better insight about formal claims that have been tested empirically and how

they were developed, see the review by Cameron and McCarty [45]. 2 In other words, this hypothesis means that a government tends to propose a government bill if it is supported by a majority and a president supported by the same party(ies). 3 In other words, this hypothesis means that a government tends to propose a government bill if it is supported by a majority but faces a president supported by different party(ies). 4 In other words, this hypothesis means that a government tends to propose an executive law if it is faced with the president supported by the same party(ies) but not supported by a majority.

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4. In a weak government scenario, there is a higher likelihood that the government will propose an executive law.5 I used a binomial logistic regression6 to test my hypotheses. First, I worked with the dependent variable which is not strategic (el_gb1). Although this variable may incorporate choices of the government between the two possible types of legislation, it does not have fine-grained distinctions between them, since it incorporates all the legislation proposed by the government. It may happen that from that total, some legislation has the only possible format which precludes the possibility of a governmental choice. Second, I repeated the analysis with the subset of observations contained in the strategic dependent variable (el_gb2). The latter is defined according to the sub-type of legislation. As explained in the previous chapter, it is a list of laws that could have been presented as either executive laws or government bills, not having format restrictions, and their format therefore being the result of a choice by the government. The statistical model that comprises the logistic regression, which I use to make this analysis, follows this formula: logit(p) = β0 + β1 x1 + . . . + βkxk

(6.1)

This is the most adequate model to use for analysing binary data which, usually, represents the success or failure of a given aspect. It often helps in understanding the presence or absence of an attribute in a particular variable (0 and 1). Let us consider the dependent variable as stylised in the following way:  1 if i is an executive bill yi = 0 otherwise (if it is a government bill). The meaning of this is as follows: the yi is a case of a random variable called Yi that can take on the values one (1) and zero (0).

5 In other words, this hypothesis means that a government tends to propose an executive law if it not supported by a majority and faces a president supported by different party(ies). 6 Also called a logit model. For more detailed information about this statistical technique, see Long [168] and Long and Freese [169].

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Regression models for binary outcomes, such as the logistic regression model, are models that give us the possibility to simultaneously make an estimation for two possible values (0 and 1). If my dependent variable is defined exactly like that, the presence of an executive law is coded as one (1), and the absence of it, or in other words the existence of another type of legislation such as a governmental bill, is considered a zero (0). This is the sort of model that fits the requirements for analysing my data [30, 169]. The use of a logistic regression allows me to investigate how my explanatory variable(s) affect(s) the probability of a certain event occurring. That is, how likely the occurrence of an event is, in this case the occurrence of an executive law, given the effect of a certain explanatory variable [30, 169]. The two main logistic regressions that I build can be found in Table 6.1 (el_gb1) and Table 6.2 (el_gb2). Here, these two models only consider the institutional variables related to the scenarios used, serving as baselines. Later in the analysis, other possible models incorporating the control variables are presented. The graphic representation of the binomial logistic regression is shown in Figs. 6.1 and 6.2. The evaluation of this results in a visual output that may help us interpret the results of the logistic regression. To better understand the analysis presented in Tables 6.1 and 6.2, it is important to recall the characteristics of the database used to generate this statistical test. First, I am using the dependent variable (or outcome) el_gb1, which contains all the laws proposed by the government, where those laws are of either one of the two possible formats. Then, when I implement this logistic regression with a dummy variable, I am able to predict the Table 6.1 Logistic regression estimates: Model 1 (el_gb1, str, maj, min, wea)

Strong Government Scenario Majority Government Scenario Minority Government Scenario Intercept N Pseudo R2 AIC ∗p

Estimate

Std. error

z value

Pr(> |z|)

−1.1454 −1.3550 −0.4684 2.6495 23,533 0.0311 19,414

0.1423 0.1168 0.1185 0.1143

−8.050 −11.601 −3.954 23.186

8.31e−16∗∗∗