Marcus Höreth

From Arguing to Bargaining Again
A Comment on Andreas Maurer*

In his recent article in International Politics and Society (Less Bargaining – More Deliberation. The Convention Method for Enhancing EU-Democracy) Andreas Maurer expressed his hope that the Convention method for enhancing EU democracy is characterised by less “bargaining” and more “deliberation”. Of course Maurer himself noticed that the criteria of deliberative democracy in the Convention are not fully met. Nevertheless the reader still has the impression that the Convention could be regarded as a nucleus for deliberative democracy. In Maurer’s own words: “My argument is that the Convention method can be seen as an alternative way for steering system change and fundamental reform of the European Union, because it features participative and inclusive forms of open deliberation, it respects and integrates the relative importance of minority positions, it offers open fora for parliamentary discourse and helps to include national parliaments at an early stage of system building, and it is conditioned by the method of consensus-building. Overall thus, the Convention method might become a future model for a more democratic set up of the EU”[1]. In his reflections on the “Convention method” Maurer made very worthy observations, presents some useful explanations but he came to conclusions which are by far too optimistic. In my reply I doubt that the Convention method is really able to transform interest conflicts in a “deliberative” way, so that less bargaining and more deliberation is the main characteristic of the Convention’s debates. In order to demonstrate my counter-argument, I will first recapitulate the pre-conditions of deliberation. Could, theoretically, the Convention be seen as such a model? Secondly, I will show the limits of deliberation within the Convention by examining the question how the Convention is (not) tackling the democratic deficit problem.

The Convention as a model for deliberative democracy?

What is the secret of the Convention method? Why do so many observers already claim it is a success, moreover, it is a nucleus for a true deliberative democracy? What are the premises of the underlying deliberative concept, what are its principles? In short: The basic principles of a deliberative democracy are discussion, persuasion and compromise. Ideally, no one unilaterally pushes his own preferences at the cost of the others. The debate is fair: every participant is free, has an equal voice and standing and is, vice versa, prepared to hear all the arguments of the other participants. Arguing is the dominating modus operandi instead of interest-driven bargaining. Consequently, the deliberation procedure is reasoned, no force is exercised except that of the better argument. With the help of some authors of deliberative democracy[2], Maurer argues that the result of deliberative procedures is that the tensions between interests can be reduced. Under these circumstances a rational, motivated consensus can be found as a result of a free and reasoned assessment of alternatives by equals. In the end, interest conflicts can be transformed into a deliberative search for the best solution which is the guaranteed outcome if all procedural requirements described above are fulfilled. In a deliberative setting, participants are more likely to reach optimal solutions because they share not only information freely but also a common frame of reference, while lowest common denominator outcomes are more likely in negotiations in which strategic rationality and bargaining dominate. The unsatisfying results of the IGC in Nice serve as an example for the latter. What does this have to do with the Convention? Theorists of deliberative democracy believe that the Convention strengthens the legitimacy of the European political system because it simply is very different from IGCs. And, therefore, it comes closer to the ideal of deliberation: it features a much wider range of actors who are all, in principle, free and have an equal voice during the deliberations. The openness of the Convention supports the necessity for the Convention members to persuade with the quality of their arguments. In contrast, typical characteristics of interest-driven bargaining processes such as pork barrelling, log-rolling are omitted because they are not well communicable for the European public. Last but not least, no one is able to push unilaterally his own preferences at the cost of the others without threatening the success of the whole Convention. As no one wants to be responsible for a total failure, no one is playing a real power game by flexing his political muscles.

Limits of Deliberation in the Convention

So far the theory. But the limits of deliberation within the Convention can be demonstrated by examining how the Convention is tackling the democratic deficit problem. Obviously, the Convention ignored – until recently – the democratic deficit, although this issue signifies one of the most urgent concerns of the public. Instead we had subsidiarity, simplification of the treaties, legal personality of the Union, economic governance and other issues on the Convention’s agenda. The only exception is the proposal of the so-called “early warning system” through which national parliaments should be enabled to control more effectively the EU decision-making process. But, as Maurer himself admits, no one in the Convention seriously reflected if these improvements for national parliaments will provide new ground for enhancing the legitimacy of European governance towards the citizens of the Union[3]. Besides the relatively non-controversial objective to enforce national parliaments in the multilevel game of European policymaking, the Convention didn’t address the real problem of how to democratise the European governance system. The very interesting question remains, then, why this is the case? Why this ignorance? My intuitive answer is that it has something to do with the new Convention method, the way it works as a deliberative consensus-seeking forum. However, this method has its limits exactly where the power struggle begins. And this power struggle has begun.

From a critical perspective, the Convention is ignoring the public regarding the democratic deficit and is unwilling to tackle this key problem of European governance more courageously. My argument is that this has something to do with the alleged deliberative nature of the Convention. The deliberative Convention method is not well-suited to address such tricky and contested questions. Why, then, the Convention method might become “a future model for a more democratic set up of the EU” as Maurer claims? I doubt that in principle because the Convention is faced with a real dilemma. On the one hand, the public and many observers expect that the Convention is addressing the democratic deficit problem directly and comprehensively; on the other hand, unfortunately, this very approach would be tantamount to stepping into a minefield – and the success story of the beautiful Convention method would come to an abrupt end. This is so for three reasons:

Firstly, if you want to address the democratic deficit problem effectively, you need a comprehensive institutional reform to change the nature of European governance. But the nature of the Euro-Polity is highly contested and so is the question of what institutional reforms are required. I am sure that more constitutional blueprints which offer more or less convincing solutions to the democratic deficit problem exist than we have members in the Convention. There is no obvious best solution to offer: there is no Pareto-optimal solution like, say, the Single Market Program which was such a success story for everyone who participated. Debates on the constitutional architecture are to a large degree zero-sum games – powers given to one institution have to be taken from others. You cannot maximize the powers of every institution, if you want to prevent an institutionalisation of permanent stalemates in the decision-making process or a lack of coherence in the political system as a whole. To offer some examples: A really strong European Council with a strong permanent Council President would marginalize a Commission President, even when he is elected by the European Parliament. Alongside such a powerful European President, the Commission would once and for all be degraded to a mere secretariat of the Council, with the right of initiative on the part of the Commission being undermined. Another example: A really strong European Parliament could once again reduce the powers of the Commission. Wherever and whenever the co-decision procedure is adopted, the Commission is more or less out of the game. The key players then are Council and Parliament. This is already practice in today’s European politics, well examined by legions of political scientists. A strong European Parliament – in the field of  legislating – is also a very doubtful constitutional choice for national parliaments, the traditional losers of the integration process anyway. Their governments have good arguments to take into account predominantly the preferences of the European Parliament and not of their domestic parliaments. The latter are not really part of the process but spectators despite all “early warning systems” we might invent. To be sure, truly empowered national parliaments would not only perform ex post control of a fait accompli at European level but also ex ante participation before European rules are adopted. Yet, under these conditions, the national parliaments could thus render decision-making processes at European level even more cumbersome which is not a very comfortable situation – neither for the European Parliament nor the Commission and the Council. To put it simply: Every comprehensive institutional reform would produce losers and winners, but no one wants to be the loser in the end. Theoretically, a comprehensive reform through which everyone is a winner at the end is only wishful thinking. Such a “one size fits all” reform would entail that every institutional actor and member state had been able to maximise his own institutional interests, and the found solution is also in the best common interest – an unrealistic expectation, particularly when dealing with a multitude of diverse interests. This principal difficulty hinders progress in the deliberative search for a solution which pleases everyone.

Secondly, different solutions to the democratic deficit problem have different massive and very complex implications for the whole institutional set-up and for the individual institutions. It is not only the fact that the inherent tensions of the institutional framework of the Union prevent a clear positive-sum solution of the democratic deficit problem. It is also a sad truth that constitutional engineers never know exactly what kind of implications certain institutional reforms will have. Therefore, whenever such big issues are to be discussed, the behaviour of the Convention members is as risk-averse as the behaviour of Member States governments in IGCs.

Thirdly, most important, and following from the earlier points I made, everyone in the Convention has certain institutional and institutionalised interests. Behind the facade of deliberative discourse lies the true struggle of conflicting interests. The Convention members are not independent wise men with no political interests. As representatives of certain institutions and institutional interests – and not to forget: states – they are biased, prejudiced. In the minefield of institutional reform, the different delegations of the Convention do not have very much in common as they represent different institutional interests. In rational choice terms, the only thing they have in common is that they are rent-seeking in so far that they are planning to continue their career – as Commissioner, Parliamentarian, as Minister and so on. Therefore, given the incentive structures which dominate in these debates on the institutional architecture, they are not and cannot be characterised by a deliberative modus. Debates are rather characterised by an interest-driven bargaining style by everyone who takes part (and has something to win or to loose).

Conclusions

As demonstrated above, Maurer’s optimism regarding the Convention’s method is not justified. It is hard to believe that the Convention operates as “a method for enhancing EU democracy” as claimed by Maurer, since it has avoided the vital question of how to democratise European governance all together. This disregard becomes understandable, when one realises that the Convention is not well-suited for the task, whenever real constitutional choices have to be made. The Convention method prevents the inclusion of highly controversial issues and, moreover, no member of the Convention has an interest to change this non-controversial modus. Previously, there were no endogenous reasons to change that style of deliberation. It was, under such circumstances, much better to give the public the impression that fair deliberation is the rule of the game. Whoever openly claimed to play by different rules could be blamed for destroying the deliberative paradise. But the factors which change the rules of the game could also be of exogenous origin, for example when the French and German government made a proposal on Dual Presidency. I fear that given the fact that controversial issues now have to be discussed because they were put on the table and hard constitutional choices have to be made, deliberations in the Convention will soon be replaced by a different modus of negotiations: the consensus-seeking "deliberative" Convention method will dramatically change from arguing to bargaining again. And also given the fact that deliberations have their limits exactly where the power struggle begins, the Convention's debates will differ slightly, if at all from the very nature of debates in Intergovernmental Conferences. Perhaps this is sad, but comes closer to reality. It would be a good thing to accept this fact rather than ignore it. The Convention members as well as academics should never forget: Even worse than ignoring the public is ignoring the facts.

a) Debates on the constitutional architecture of the EU are to a large degree zero-sum games - powers given to one institution have to be taken from others. This hinders progress in the deliberative search for a solution which would involve all participants of the Convention.

b) Unsure about the implications of institutional reforms, the Convention members are as risk-averse as the Member States’ representatives at Inter-Governmental Conferences.

c) Behind the facade of deliberative discourse lies the struggle of conflicting interests. Due to their affiliation to institutions and institutional interests, the ‘Conventionels’ are biased. They do not act as independent arguers but as rent-seeking representatives of their constituent units.  

1. The theory assumes that the participants in the Convention are free, they are only bound by the results of the deliberation. One can identify three groups of actors: (1) a minority who still try to act as representatives of the “national interest”, i.e. some (not all) of the representatives of the heads of states and governments; (2) a minority of national parliamentarians who act on their own behalf without considering the positions of their home bases; and (3) a large majority of members who try to cope with different layers of their identity as MPs/MEPs, government officials, and so on, and who change their positions several times according to an ongoing and open debate on the EU’s future design.

2. The theory assumes that deliberation is reasoned - no force is exercised, except that of the better argument. And in fact, the Convention does not feature any means of coercion or majority decisions. Instead, the debate within both the working groups and the Convention plenary remains open-minded and egalitarian. Representatives of larger member states or government officials do not tend to argue on the basis of their potential bargaining power.

3. The style of the Convention’s debate still remains arguing between individuals – not representatives of  legal bodies and interest groups – who try to develop empathy for each other’s  arguments and problems.