For Netanyahu and Gantz, a modest proposal to avoid repeat elections

For Netanyahu and Gantz, a modest proposal to avoid repeat elections

Could one historian’s out-of-the-box idea end the political deadlock and give everyone what they claim they want: Unity and stability for a polarized, virus-struck nation?

Haviv Rettig Gur is The Times of Israel's senior analyst.

Composite photo shows Prime Minister Benjamin Netanyahu, left, and Blue and White party chief Benny Gantz, right. (Flash90)
Composite photo shows Prime Minister Benjamin Netanyahu, left, and Blue and White party chief Benny Gantz, right. (Flash90)

In his broadcast Saturday night on the new coronavirus regulations, Prime Minister Benjamin Netanyahu told Israelis he was making “an enormous effort” to reach a unity government deal with Blue and White chief Benny Gantz.

“No one wants this more than I do,” he intoned, “because I saw the coronavirus pathogen galloping toward us, and I know it’s not going to leave us in the foreseeable future. Under these conditions, I know that the country needs a broad and stable government…. I saw and see an emergency national unity government as a crucial part of our victory in this war.”

It was a noble sentiment. There’s just one problem: no one, not Gantz, not the Haredi parties who have stood steadfastly beside Netanyahu for years, not even cabinet ministers from Netanyahu’s own Likud party, believes him.

The debate among Israeli politicians and pundits isn’t over whether Netanyahu is actually seeking a unity deal, but over the specific calculation that’s causing him to avoid clinching one. Has he seen the polls showing he’ll trounce a now-broken up political center and is therefore aiming for a fourth election, which is automatically triggered if no one is chosen as the next PM by May 7? (It goes without saying that one doesn’t openly declare one’s intention to drag a coronavirus-beset nation to a fourth consecutive election; one sidles toward that precipice while declaiming one’s deep aversion to the possibility. That’s just politics.) Or, as others argue, was he willing to sign a deal two weeks ago, but then got spooked by the uproar of his right-wing base?

Prime Minister Benjamin Netanyahu holds a press conference at the Prime Minister’s Office in Jerusalem on March 16, 2020. (Yonatan Sindel/Flash90)

Then there’s the matter of Netanyahu’s corruption indictments (his trial is scheduled to begin in May), and his opponents’ eagerness to legislate him out of the race by outlawing the possibility of an indicted MK becoming prime minister. Gantz suspects Netanyahu of repeatedly delaying the negotiations in order to run out the clock on the chance of passing that legislation.

Netanyahu might try to avert an election by drawing a couple of opposition MKs (like the Derech Eretz faction) to his 59-seat bloc, giving him the requisite 61-seat majority in the Knesset, but such a government would be ungovernable, and would have to contend with a betrayed Gantz as the parliament’s powerful and irremovable speaker.

No wonder so many are pessimistic. No wonder both parties insist to reporters that the unity deal is all but concluded, and at the same time may be dead on arrival; that a broad unity government is vital, and simultaneously that neither Netanyahu nor Gantz fears another turn at the ballot box.

It’s a political Gordian knot created by a Netanyahu who does not actually seem to believe he needs a unity government to deal with the virus. He may have thought that three weeks ago, but so far he seems to have dealt with the crisis well enough — or as he tells it in statements to the press, surpassingly and astonishingly well.

But what if there was a way out of the impasse that doesn’t force the country through yet another early election? What if there were a simple solution that avoids the pitfalls of the options currently on the table, such as a fourth election?

People shop for food at the mostly-shuttered Mahane Yehuda Market in Jerusalem on April 19, 2020. (Yonatan Sindel/Flash90)

That possible solution: Cancel article 11 of the Basic Law: The Government.

The idea has been percolating through the political system for over a week, and even made it into a bill proposed on Thursday by the Yisrael Beytenu party as part of its raft of five anti-Netanyahu bills.

Article 11 is the reason that each consecutive failure to produce a government over the past year has forced the country to new elections. It sets a deadline of a few weeks for forming a government, and decrees an automatic dissolution of the Knesset if that deadline is reached without one.

Article 11 is the source of the trouble of the past year, and the most significant leverage Netanyahu now wields over Gantz. It has also saddled Netanyahu with the excruciatingly hard-to-resist temptation to simply “reset” the election each time the voters failed to deliver his preferred outcome.

“The most important thing is to stop the bleeding” of Knessets serially dissolving themselves and calling new elections, explained Prof. Alexander Yakobson, the Hebrew University historian who first proposed the idea.

Prof. Alexander Yakobson of Hebrew University. (Courtesy)

Yakobson shared the idea with his well-connected colleague Prof. Yossi Shain, head of the political science school at Tel Aviv University, two weeks ago. Shain reached out to political figures to suggest the idea, leading Yisrael Beytenu chief Avigdor Liberman to then phone Yakobson to discuss it in detail.

Yakobson’s initial suggestion was to replace Article 11 with a provision “that the Knesset has the power to decide how the next government is built, and if it fails within a year to decide on a government, then you go to elections.”

But then Yakobson consulted with longtime mentor and Israel Prize-winning constitutional thinker Prof. Amnon Rubinstein, an author of two of Israel’s Basic Laws.

“Amnon said there’s an easier way: Just cancel Article 11.”

Stability and unity

Canceling Article 11 would strengthen Gantz by erasing any hope Netanyahu might have of running down the clock. It removes the clock.

Prime Minister Benjamin Netanyahu casts his ballot at a voting station in Jerusalem on September 17, 2019. (Heidi Levine/AFP)

It also preserves Netanyahu as prime minister during the virus crisis, delivering the stability so earnestly demanded by all parties, including Netanyahu.

Netanyahu probably won’t have a 61-seat majority for dissolving the Knesset himself. The factions he’d need to win such a majority — Gesher and Derech Eretz, for example — would be erased in a new vote. Even a promise to let them run on a joint list with Likud, thus ensuring they enter the 24th Knesset, would be a hard sell to Derech Eretz’s Yoaz Hendel and Zvika Hauser, two men with ample reasons to distrust the prime minister.

Gantz, too, won’t have a majority for forcing new elections, since many of his allies (especially Derech Eretz and Labor) would, again, fear being wiped out at the ballot box.

Netanyahu’s most die-hard supporters might protest that such a move denies him an expected victory in a fourth race. Perhaps. Then again, the 90-day wait from May 7 till election day is a long time in politics, especially at a time of soaring unemployment and growing frustration with the mass closures imposed by the government.

A nearly empty plenum, due to restrictions against the coronavirus, is seen at the swearing-in of the 23rd Knesset, March 16, 2020. (Gideon Sharon/Knesset Spokesperson)

Then, too, canceling Article 11 is arguably preferable to the constitutional amendments now being proposed that target Netanyahu personally. The anti-Netanyahu factions have valid ethical considerations for prohibiting an indicted MK from becoming prime minister (Netanyahu himself once supported such a bill, before he was the MK in question). But such constitutional changes usually go into force with a delay, in order to avoid the ethically dubious practice of changing an election’s rules in mid-stride to remove one’s opponent from the race.

The only ‘anti-Netanyahu’ bill that could pass

After the March election, Gantz led a slim and informal majority held together only by its distaste for Netanyahu. That majority has now splintered. Gantz divided his alliance to pursue a unity deal with Netanyahu; one MK, Gesher’s Orly Levy-Abekasis, defected across the aisle; others, including Derech Eretz’s Hendel and Hauser, don’t believe their political future lies on the center-left and have already balked at the idea of removing Netanyahu by legislative fiat.

The majority for anti-Netanyahu legislation has almost certainly evaporated.

But a majority probably remains among the MKs of the 23rd Knesset to at least preserve the 23rd Knesset. Those who would disappear in a new race — Labor, Gesher, Derech Eretz — would support the idea. Netanyahu’s opponents surely prefer him at his current strength than at his probable post-election strength. And many of his allies, from Haredi parties to Yamina and even many in Likud, fear the potential wrath of a voter who by August might be more incensed by petty politicking during a dire economic downturn than impressed by Netanyahu’s emergency management skills.

Liberman warned in a statement Sunday that Monday is the last date for Gantz to decide to advance anti-Netanyahu legislation and be certain it can be passed before the May 7 dissolution of the Knesset.

He’s wrong.

“The three-week deadline [to May 7] isn’t real. Unlike the British parliament, which once dissolved can’t meet until a new parliament is elected, the Knesset can continue to legislate” until it is replaced by the next elected Knesset, Yakobson noted.

A hidden camera allegedly snuck into a polling station in an Arab town by a Likud observer during parliamentary elections on April 9, 2019. (Courtesy Hadash-Ta’al)

Indeed, the Israeli right would be hard-pressed to claim otherwise. It has made repeated use of that post-dissolution legislative power. Two days before the September 17 election, it tried to introduce legislation in a long-dissolved 21st Knesset to allow it to send cameras into Arab polling stations.

There are nobler examples as well. In December 2018, shortly after the 20th Knesset voted to dissolve, then-justice minister Ayelet Shaked led a group of women lawmakers who pushed for a special plenum session to hold the final votes on a major reform of Israel’s prostitution laws, which redefined the client-prostitute relationship as one of exploitation rather than consent, and imposed penalties on clients rather than prostitutes. That new policy, legislated after the 20th Knesset voted itself dissolved, is set to come into effect this May.

No sacred cow

Finally, the amendment doesn’t upend any fundamental or primordial element of Israel’s constitutional order. Article 11 is new. It was added to the Basic Law in March 2001 at the urging of Justice Ministry officials who sought ways to pressure politicians to conclude their coalition negotiations quickly. Nineteen years later, after the experience of a year of repeated elections, it may be time, irrespective of one’s partisan sympathies, to wonder if that rationale might have been misguided.

On May 30, 2019, after he failed to form a government, Netanyahu pushed a vote through the Knesset to call new elections in a bid to avoid letting his opponent Gantz have a turn as prime minister. It was a legal but nevertheless unprecedented and astonishing move. The political class behaved as if the results of the election were an error that could be erased. After the voters confirmed their views twice more, on September 17 and again on March 2, Netanyahu has appeared willing each time to reset the election results until they fit his needs.

Small business owners and kindergarten teachers take part in a rally demanding financial support amid the coronavirus lockdown, across from the Knesset in Jerusalem, on April 19, 2020. (Yonatan Sindel/Flash90)

That fragility “is not fate,” Yakobson insisted.

A minor constitutional change requiring no more than 61 votes in the Knesset could shift the balance — not the balance between Netanyahu and Gantz, but between politician and voter. It would be the politicians who must come to terms with the people’s desires, and not the other way around.

Similar ideas have been proposed, but all are more convoluted and with more obvious downsides. Liberman has suggested that if a Knesset fails to produce a government, the president could appoint a government of technocrats until the Knesset gets its act together. Last month and again last week, Yesh Atid’s Yair Lapid proposed a six-month “freeze” of the current situation, anchoring in place a Netanyahu-led interim government and opposition-led Knesset and resuming the political wrangling after the worst of the virus crisis passes. Critics have said the plan would leave Netanyahu with full emergency powers and the government torn between the two competing power centers, one giving the orders while the other approves the budgets, with both relentlessly posturing in a frozen and thus never-ending election.

Yakobson’s idea is simpler and its effect possibly more dramatic. It is a fundamentally conservative idea, prioritizing the electorate over the politicians, and the politicians over the state bureaucracy; and it holds the promise — so Yakobson believes — of stability for a political system attempting to manage a pandemic.

Why hasn’t it been proposed by the wrangling politicians themselves?

“I have a rule that Amnon Rubinstein taught me decades ago,” Yakobson said: “Never assume that someone has thought of it.”

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