The Carrot and the Stick: Party Regulation and Politics in Democratic Spain

Abstract

Party regulation in new democracies in general, and in the Spanish political system in particular, has not been a matter of concern until very recently. In order to fill this gap, this article explores the way political parties have been regulated not only in the Constitution, but also in the main laws regulating party foundation, organisation, dissolution and, not least, funding: namely, the 1978 and 2002 Political Party Laws as well as the 1985 and 2007 Party Funding Laws. The empirical part explores the impact such regulation has had on the Spanish party system as well as on the life of its party organisations.

Keywords::

• Constitution
• Party Law
• Party Funding Law
• Party System
• Political Parties
• Spain

Acknowledgements

We would like to thank the journal referees for their comments and suggestions for improving the text. This paper is part of the project MICINN CSO2009-14381-C03-02 (2009–12) funded by the Spanish government and the project SGR 2009-1290 (2009–13) funded by the Catalan regional government.

Notes

^1. There is much fruitful research on the political consequences of the Spanish electoral system (Gunther 1989; Oñate 2006; Lago & Montero 2009). Amongst other effects, these studies have pointed out the high electoral barriers to obtaining parliamentary representation (Lago & Martínez 2007). Paradoxically, these barriers are not so restrictive to limit access to Parliament for new or small parties, since there have quite often been party change and new parties in parliament at the regional level (Lago & Martinez 2011). We should be aware of the influence of these rules also on the distribution of power within political parties (Gunther et al.2006).

^2. This in clear contrast to the ‘mass party’ where members are at the centre of both the organisational and electoral apparatus.

^3. A non-decision (e.g. non-banning of the Czech Communist Party) can also have important effects on the party system (Haughton 2012, p. 7).

^4. Such distinction, repeatedly confirmed by the Constitutional Court itself, is currently being challenged (by both public and media).

^5. This sedes materiae, whose modification requires a qualified majority of two-thirds as well as again a two-thirds majority and a referendum after new elections have been held (article 168 CE), ‘shows the importance given to political parties in the constitutional system, as well as the protection that of their existence, and of their functions, is done.’ ( STC 48/2003, de 12 de marzo. Available at http://www.tribunalconstitucional.es/es/jurisprudencia/Paginas/Sentencia.aspx?cod=14290).

^6. While the former is an almost a perfect copy of the German Basic Law (article 21.1), the latter was influenced by both the French (article 4) and German Constitutions (article 21.2).

^7. For a historical contextualisation of the 1978 and 2002 PL, please see Casal Bértoa, Piccio and Rashkova (forthcoming).

^8. In clear contrast to the previous regulation, some of the members' duties are enumerated, even if obvious at times, by the new law: e.g. pay the fees (when applicable), respect the aims, statutes and agreement legally adopted, etc. (article 8.4).

^9. Together with the German, Portuguese, Romania, Latvian and, to a lesser extent, Lithuanian current Party Laws (Casal Bértoa, Piccio & Rashkova forthcoming).

^10. The competent criminal judge in the first case (i.e. ‘illegal association’), a Special Chamber of the Supreme Court in the other two.

^11. This in clear contrast with the doctrine of the European Court of Human Rights, which, departing from a ‘material’ notion of democracy, rules in favour of Spain in the case of Herri Batasuna and Batasuna v. Spain (2009) because it considered Batasuna's goals to be ‘in contradiction with the concept of a democratic society’ (Biezen & Molenaar 2012).

^12. According to the majority of the doctrine (e.g. Blanco Valdés 1990; Otto y Pardo 1985) as well as the Constitutional Court case law (STC 48/2003), the fact that as consecrated in article 168 CE it is possible to modify the Constitution as a whole clearly demonstrates that in Spain ‘there is not space for a “militant democracy” model’, meaning a model that imposes ideological control of parties.

^13. The idea was to avoid the more than presumable advantage of those parties close to the authoritarian regime, which were considered to be financially supported by generous private sources.

^14. Similar norms were quickly adopted also at the regional level, although it was not until the approval of the 1987 PFA that such practices were legally sanctioned (also at national level).

^15. For instance, while parties cannot receive private funds from companies hired by the State administration, these are explicitly permitted for their think-tanks.

^16. Based on the reinforced supervisory attributions given by the 2007 act, the CoA approved internal technical criteria stating that local incomes should be included in the control, so that party accounting could represent the whole of the party's financial activity (TCU 2008, p. 16). However, the GRECO (2013) report insisted on recommending they consolidate their accounts also at the local level.

^17. For instance, the limits the think-tanks' access to private money were relaxed.

^18. Here a difference between formal and practical aspects should be made.

^19. The Supreme Court banned Batasuna, Herri Batasuna and Euskal Herritarrok (HB's electoral list between 1998 and 2003) in 2003. Subsequently, other attempts at rebuilding Batasuna (under different names) were also banned because of political ties with the original organisation (Bourne 2012b). The decision to ban Batasuna was supported by the European Court of Human Rights in 2009 (Biezen & Molenaar 2012).

^20. The strong variations for PSOE (1997–98) and United Left (IU) (1988–89) are due to some problems with the data provided by the parties to the CoA (Martínez-Cousinou 2013, pp. 628–630).

^21. The fact that Spanish political parties have responded to major electoral crises with organisational re-foundation, rather than splitting or formation from scratch, explains such continuity.

^22. In this sense, some regionalist parties that have obtained regional representation from the beginning have had many difficulties in obtaining representation at the national level despite remaining strong in the regional chamber (Barrio et al.2011).

^23. Another political party was also banned in 2003 – Partido Comunista de España (reconstitutido) – because of its relationship with the terrorist group First of October Anti-Fascist Resistance Group (GRAPO). Yet, since it never attained institutional representation and did not have much electoral support, this banning was politically irrelevant.

^24. The GRECO 2009 Report warned Spanish authorities that this practice went against Recommendation 1516 (2001) of the Parliamentary Assembly of the Council of Europe on Financing of Political Parties.

Additional information

Notes on contributors

Fernando Casal Bértoa

Oscar Barberà is an associate professor at the Universitat de València (UV). Previously he has been a lecturer and visiting fellow at several Spanish and European universities. His PhD thesis was awarded by the Spanish Political Science Association. He has recently published Alianzas políticas, relaciones de poder y cambio organizativo. El caso de Unió Democràtica de Catalunya (2011).

Juan Rodríguez-Teruel

Astrid Barrio is an associate professor at UV. She has a Master's degree in Political Science awarded by Sciences-Po (Paris, 1999). She has also taught at the Autonomous University of Barcelona (UAB), Sciences-Po (Paris) and the University of Montpellier. Her PhD thesis was awarded in 2007 by the Spanish Political Science Association.

Oscar Barberà

Fernando Casal Bértoa is a Nottingham Research Fellow at the School of Politics and International Relations. He is also co-director of the Centre for Comparative and Political Research (http://www.nottingham.ac.uk/ccpr/index.aspx) at the University of Nottingham. His work has been published (or is forthcoming) in Party Politics, Government and Opposition, International Political Science Review, and East European Politics.

Astrid Barrio

Juan Rodríguez-Teruel is a lecturer at UV. He has also taught at UAB and been a visiting fellow at the Open University, the London School of Economics, Edinburgh and Leiden. His PhD was awarded the Linz Prize in 2006 and also the Spanish Political Science Association Prize. He has published in, among others, Comparative Sociology, Revista Española de Investigaciones Sociológicas and French Politics. He is also the author of Los ministros de la España democrática (2011).