The new fourth branch. A way forward for constitutional democracy?

The paper analyses the existing models for appointing members of independent authorities in EU Member States, to assess whether appointment rules change according to the functions the authority is attributed. The diffusion of independent authorities firstly started in the US, where their functions mainly consist in regulating highly technical sectors, e.g. financial markets. In Europe, instead, many independent authorities are designed to provide an additional guarantee for citizens against State‘s misconducts in sensitive sectors, like the electoral process. In the former model, independent authorities base their legitimacy on the expertise of their members, whereas in the latter their legitimacy primarily lies in the guarantees of independence enjoyed vis-à-vis the ruling majority. By analysing their respective systems of appointment, the paper seeks to establish whether there is a difference, as to the degree of independence, between regulatory and oversight independent authorities.

The paper focuses on the issue of accountability of regulatory independent authorities. When the problems faced by society require long-term solutions, the ruling majority has little incentive to pursue policies whose effects will be visible after the next elections. Hence the delegation to independent authorities, allowed to elaborate policies ignoring electoral consensus and better equipped than politicians to act on the basis of expertise. Contrary to the courts and oversight authorities, who operate on the presumption that unrestricted majorities would infringe minorities rights, the legitimacy of independent authorities thus appears to be founded on functional reasons. However, delegating fundamental policies to unelected bodies sidelines parliaments, opening a legitimacy creep in democracy. By looking at accountability powers of EU national parliaments vis-à-vis regulatory authorities, the paper aims at identifying the most promising solutions to hold experts to account.

During the accession process of Central-Eastern European States to the EU, the Commission pushed for a depoliticisation of the national public sphere to be realised by conferring significant powers to experts and other non-elected agents. The rationale behind this move was to provide for other 'guardians' of democracy alongside the judiciary and constitutional courts. Electoral commissions, ombudsmen, anti-corruption agencies, and other monitoring institutions were thus introduced to consolidate and protect the achievements of democratic transition. Yet, such a proliferation of independent bodies produced as a consequence a marginalisation of politics, triggering a backlash effect which led to the emergence of populist politics. Against this backdrop, the paper will consider the performance of independent authorities in Central Eastern European States in the last two decades, in order to assess whether they contributed to preventing, rather than fostering, constitutional degradation.

The aim of the paper is analysing the role of Parliaments in the appointment procedures to independent authorities. Adopting the prototypical case logic method suggested by Hirschl, the paper only focuses on countries with a parliamentary form of government. By illustrating the different ways in which Parliaments are involved in appointing procedures, the paper aims to demonstrate that the parliamentary involvement in the appointment process of independent authorities‘ members inevitably hinders the independence of the body. Nevertheless, it will be argued that the involvement of parliaments is an important tool in order to enhance the transparency of the appointing process, which allows a civil society grassroot control. And, more importantly, it provides these bodies with a source of democratic legitimacy, capable of enhancing public trust, thus creating the conditions for a more effective performance of their duties.