Reforming Colombia’s electoral system?

One of the lowest turnouts in Latin America, widespread political apathy, delegitimized and broken democratic institutions, widely disliked politicians – Colombia’s political and electoral systems aren’t working as they should be, and it becomes even clearer with every passing scandal or political incident. Reforming, improving, Colombia’s political system is one of the intentions of the recent peace agreement with the FARC, and perhaps one of the more important points of this peace agreement – how can you build peace if the ones building it aren’t seen as legitimate?

Colombia’s political and electoral systems have many problems, with deep historical roots. Historically, Colombian politicians and parties have failed – often because they were unwilling – to accommodate and effectively represent new sectors of society, which helps explains the enduring control of regional political and economic elites (caciques) over political parties, which in turn make parties weak and incoherent amalgamations of personalist and clientelist machines (rather than representative of citizen interests as the theory would like them to be). These regional and national political and economic elites have, at times, consented to democratizing the system to integrate new emerging interests and groups into the political system, as with the 1991 constitution, which has had undeniable positive effects on the quality of democracy in Colombia. At the same time, they seek to use these same reforms to fit their own interests or otherwise pretend that everything is OK, usually under the facile argument that “Colombia is Latin America’s oldest democracy”. Although Colombian politics are too dynamic and complex to be reduced merely to ‘regional and national elites’ – certainly local government in the major cities has shown that these elites may be successfully challenged – the broadly elitist nature of Colombian politics over the past several decades, as well as the armed conflict, has contributed to widespread political apathy. The last World Values Survey poll showed that 75% of Colombians were ‘not very interested’ or ‘not at all interested’ by politics – including nearly half who weren’t at all interested; in general, political interest isn’t very high in Latin America compared to ‘global north’ democracies, but Colombia has the highest levels of disinterest in the region.

Colombia is one of the few Latin Americans without compulsory voting, which makes regional comparisons more difficult, but it has one of the lowest turnouts in the region. Turnout has been below 50% in all non-local elections since 1998; it was 44% in the 2014 congressional elections, 40% in the first round of the last presidential election, 48% in the second round of the last presidential election and just 37% in the 2016 peace agreement plebiscite. Unlike in most other countries, Colombia has significantly higher turnout in local elections – 60% in 2015, which shows several things: the parochial nature of Colombia and its politics, with its long history of poorly connected regions; greater interest with local politics of direct relevance and concern to voters; the maximal influence of clientelistic (vote buying) at the local level. Usually, the bigger cities don’t show great variations in turnout between national and local elections, whereas smaller towns and villages, especially in poorer peripheral region, have very big differences. Geographic analysis of turnout shows significant differences between any given election (often due to differential mobilization of clientelistic machines), but also persistently very low turnout in peripheral and ‘forgotten’ regions with a very weak state presence, poor communications, historic guerrilla presence and large illegal economy.

Recent polling all shows how widely disliked and unpopular many leading politicians and most institutions. Congress is hated, nearly 80% had an unfavourable opinion of it in the last Gallup. Political parties in the abstract are even more widely hated, with only 9% thinking well of them – that’s less than respondents who had positive opinions of the FARC (19%) or Donald Trump (13%). In sum, it should be pretty obvious that there’s something wrong and something to fix.

The peace agreement, among other things, created a ‘special electoral mission’ to make recommendations on potential reforms to the electoral system – particularly aspects like electoral management bodies, resolution of electoral disputes (electoral justice), campaign financing and the electoral systems for different bodies. In January, the names of the six members of the special electoral mission were announced, having been selected by international and national organizations working on electoral matters (Carter Centre, Netherlands Institute for Multiparty Democracy and the political science departments of the National University and the Universidad de los Andes) with a seventh representative from Colombia’s Electoral Observation Mission (MOE). The special electoral mission has four months to deliver its recommendations. It reported on its initial proposals today/March 24. Its presentation can be seen here.

The mission has spelled out its goals as: building strong, legitimate and professional electoral bodies; improving the quality of political representation, especially for women, youth and ethnic minorities; strengthen political parties so that they’re less personalist and clientelistic; promoting a financing system which cuts costs of politics, is transparent and more publicly funded; establishing a simpler electoral system for citizens, candidates and electoral bodies.

Its recommendations are interesting and provide a good basis for debate.

A major focus recently has been reforming the structure, responsibilities and makeup of Colombia’s electoral management bodies (EMBs), notably to make them more efficient in dealing with things like campaign finance law violations. Under the 1991 constitution, Colombia’s EMB structure is a bit peculiar in that its divided between two separate bodies, unlike in most other South American countries.

The Registraduría Nacional del Estado Civil (National Civil Registrar) has non-electoral responsibilities like vital records and identity cards (cédula), but it is in charge of voter registration, registering candidates, organizing and managing all elections/referendums and counting the votes. It is a fairly non-controversial body, as it is politically independent and counts the votes (very) quickly, which isn’t something that can be said about its equivalents in Ecuador or Venezuela.

The National Electoral Council (CNE)’s powers include reviewing vote counts, certifying election results, legally recognizing political parties (and revoke that recognition), regulating and monitoring parties’ activities, revoking the registration of candidates, regulating polling and campaign activities and overseeing campaign financing. It is an administrative body with the power to impose sanctions on parties and candidates for violating electoral laws. The CNE is made up of nine members elected by Congress for a single four-year term. Unlike in most other Latin American countries, its members are partisan – parties or coalitions of parties propose candidates, then elected by Congress through proportional representation. The CNE’s predecessors were also partisan – it’s a holdover from the two-party and National Front period, when partisan disputes over elections made a balanced partisan composition of the EMB a necessity (the alternative was murdering the other side). The CNE has been very widely criticized for its partisan composition, constant internal deadlock, general lack of professionalism, inefficiency, lack of resources to carry out its functions and inability to enforce laws (like financing rules).

In addition, since 2009 the Fifth Section of the Council of State (the supreme administrative court) hears electoral disputes and has judicial powers to overturn election results (once certified). It also decrees loss of mandates (pérdida de investidura).

The mission proposes to clearly delimit powers (administrative vs. jurisdictional), without overlap. There would be a Colombian Electoral Council (CEC), an EMB of 5 non-partisan members selected from lists (not specified who will come up with these lists) for 8 year terms. It will plan, organize and administer electoral events, administer vital records and the voter roll (as well as the register of party members), count the votes, control political financing and promote civic education. There would then be an Electoral Court (CE), part of the judicial branch, to resolve electoral disputes, arbiter party disputes and decide on loss of mandates and removal from office. It would have 6 regional tribunals with 3 career magistrates each and a national body with 5 non-partisan magistrates (8 year terms).

In sum, the CNE would disappear into the CEC, which would also take powers from the Registraduría, which would presumably be reduced to its non-electoral roles (citizen identification). The Council of State would lose its powers over electoral disputes, placed in the hands of a specialized and professional electoral court. The jealously protective and corporatist Council of State won’t like this, and chances are the Constitutional Court wouldn’t like it either, as it tends to jealously protect the ‘corporate interests’ of the judicial branch from ‘political interference’. On the other hand, the mission proposes to have the electoral court be part of the judiciary rather than be a ‘fourth branch’, as it is in Ecuador, so the judiciary may be more amenable to this – probably even moreso if the members of the CE are selected through the same mechanisms as Supreme Court and Council of State judges currently are (as the proposal suggests).

The institutional architecture would ressemble Mexico, which has an EMB running the electoral processes (the INE) and an electoral court which is part of the judicial branch (the TEPJF).

The mission also proposes to review the electoral system – how members of multimember bodies, like Congress, are elected. The current Colombian electoral system is peculiar and rather unique in the world – party-list proportional representation but with both closed and open lists, leaving it up to parties what kind of list they put up, although in any case they may only put up one list per body (which may sound obvious to everybody, but before 2003, parties could and did put up more than one list for the same body). The mix of open and closed lists and the ballot structure (each candidate identified with a number rather than by name) is confusing to voter and results in a high percentage of unmarked or invalid ballots – 16% of votes cast for Senate in 2014 were invalid or unmarked, compared to just 3% in the presidential election a few months later.

Most parties choose open lists, because that’s the only way for them to continue functioning as disparate motley crews of regional elites and personalist machines. With open lists, voters may (and almost all of them do) vote for a single candidate on the list and the ordering, which determines election, is dependent entirely on the number of individual ‘preferential votes’ for each candidate. As a result, elections for multi-member bodies like Congress have remained intensely personalistic, decided by clientelistic/personalistic machines rather than partisan/ideological identification – congressmen seek out votes for themselves and their associated candidates. The 2003 electoral reform and later laws (like the 2005 law on party caucuses) impose an artificially rigid party system on a country whose party system was completely de-institutionalized by the 1991 constitution and, prior to that, by the National Front. With the 2003 electoral reform, there has been a clear consolidation of the party system – 63 competing parties in 2002, 9 in 2014 – but these parties are not necessarily stronger.

Critics of Colombia’s electoral system (myself included) claim that open lists encourage or aggravate problems like: excessive power of individual politicians, internal fragmentation of parties, expensive campaigns, vote buying, clientelism, infiltration of illegal money or groups and lower women’s representation. The main solution proposed, time and time again, has been closed lists; this was last proposed by the government in its 2015 constitutional reform package, but Congress gleefully scrapped that idea.

The Senate (save for 2 special indigenous seats) is elected in a single national constituency. The ‘national Senate’ has allowed for the political representation of minor parties and strong national leaders have emerged, but national interests are poorly represented: many senators have regional strongholds and/or are identified with their region of origin, leading to the over/under-representation of some regions. The House of Representatives (166 seats) is elected by department with district magnitude ranging from two to 18.

The mission proposes a 100 seat ‘national Senate’ elected on closed lists, using the current system of PR (D’Hondt) and a 200 seat House elected in departments (min. 4 seats each) through a mixed system with closed lists and single-member districts (MMP or parallel voting). Parties will need to choose their candidacies and list ordering through internal democratic mechanisms like primaries. The mission talks of ‘moving towards’ gender parity on party lists, likely with requirements for gender alternation on lists as is the case in France.

Advocates of a closed list PR system in Colombia argue that it would strengthen parties, give them greater internal cohesion, make elections about parties rather than individual candidates and increase women’s representation. The most valid concern against closed lists is, like elsewhere in the world (South Africa just to give one example), placing power in the hands of the party leadership and making congressmen accountable to party leaders rather than voters. Internal party primaries is a solution, but there’s a risk the existing machines would just work within primaries instead.

The recommendation for a mixed system in the House is interesting and novel. Former Green senator John Sudarsky had proposed a mixed system for both houses in 2012 (and again in his 2014 presidential campaign in the Green primary). His idea was a 60-40 split between single-member seats and PR list seats, with single-member districts of about 410,000 people for the House (820,000 for the Senate).

The electoral mission doesn’t offer more details about how many list seats and SMDs there would be. There are 33 departments in Colombia (including Bogotá D.C.), four seats minimum per department would leave just 68 seats to be divided based (presumably) on population, so smaller departments would very much overrepresented. The four seat minimum per department is also a bit ridiculous, considering remote Vaupés and Guainía in the Amazon have populations of barely 40,000 (vs. 7.8 million in Bogotá).

Congressmen won’t like the idea of closed lists, mostly because it reduces their individual power and weakens their political machines greatly. On the other hand, they might like the idea of SMDs for the House, as they might find (especially in rural areas) that SMDs can consolidate local, individual fiefdoms. Could this be a ‘fair’ compromise to get them to agree on closed lists?

The mission does not recommend compulsory voting, an idea proposed by some politicians (recently by interior minister Juan Fernando Cristo), instead recommending some civic education and improvements in voting accessibility (more polling stations, free public transportation on election day). The EU Parliament will be able to tell you that ‘civic education campaigns’ are a waste of money and time, but the idea for free public transportation on election days is an interesting and worthwhile idea: currently local political machines are effectively in charge of transportation on election day, which perpetuates clientelism and vote buying politics.

Political financing is a complete mess in Colombia. In theory, electoral campaigns are partially publicly funded, foreign donations are banned, corporate donations to presidential campaigns are banned, anonymous donations are banned, vote buying is a criminal offence, strict sanctions (including loss of registration and removal from office) can be imposed for contravening the law and there are campaign spending limits. But, as one old Colombian saying goes (coined by old Liberal sage Darío Echandía), una cosa es Dinamarca y otra Cundinamarca – Denmark is one thing, [but] Cundinamarca (Colombian department surrounding Bogotá) is another. In practice, illegal campaign financing is widespread, public reporting systems are a smokescreen, vote buying is commonplace, nobody cares where the money comes from, candidates themselves don’t know how their campaigns are being paid for and the CNE is too useless and incompetent to do much about it. The issue of political financing has been a big focus this year, with revelations that both 2014 presidential campaigns in the runoffs – Santos and Zuluaga – probably received money from corrupt Brazilian construction giant Odebrecht, or that Odebrecht through a Panamanian firm had footed the bill for Santos’ 2010 posters. The Santos 2014 campaign’s claim that they relied only on public financing and a bank loan is ludicrous and I have seafront property to sell you in Arizona if you believe that tale.

The mission proposes a mixed, predominantly public, system of financing increasing public funding to parties, half before the election and the other half after the election. It also proposes more effective control by the EMB and free airtime on TV (it already exists for public TV and radio, but most TV and radio stations in Colombia are private). These sound like noble ideas but not a very big shift from what is currently on the books: public financing already exists and its amounts are clearly defined by law. The main change would be a more effective EMB or electoral court. Public financing obviously isn’t perfect either and has a lot of problems. Mexico shows the risk of public funding turning parties into lucrative businesses for their owners – just look at the infamous example of Mexico’s “green party” PVEM.

These are only preliminary recommendations. Their transformation into reality would require a constitutional amendment, which is probably unlikely to happen before the 2018 elections even through the ‘fast-track’ mechanism for legal implementation of the peace agreement. I expect significant push back from the ‘special interests’ standing to lose from some of these ideas – the Council of State, the CNE, congressmen and maybe the Registraduría. The mission dreams of the ‘broadest possible parliamentary majority’, ‘broad political consensus’ and ‘political will’ but that’s a pipe dream, particularly in the current context of continued polarization and pre-electoral politicking between parties. However, these are interesting recommendations which would, on balance, likely help improve Colombia’s electoral and political systems.

To watch: Cajamarca (Tolima) votes in a highly anticipated local referendum on mining projects in the area tomorrow. A very important vote for the future of mining in Colombia.

One thought on “Reforming Colombia’s electoral system?

  1. hschlechta May 9, 2017 / 10:11 am

    Does the report say whether the proportional representation seats would be distributed on a basis that compensates for the disproportionality in the single-member seats (like Germany or New Zealand, or whether there will be no connection between the two (like in Japan or Russia)?

    Like

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