The Constitution invites itself into the conversation. In recent months, with the breathlessness – to use a measured word – of our democracy, the debate has swelled. This summer, L’Express revisits, with political scientist Olivier Rozenberg, associate professor at Sciences Po, researcher at the Center for European Studies and Comparative Politics, the history and issues of several emblems of the Fifth Republic. Second episode: the referendum.
EPISODE 1 – “The quinquennium is not responsible for all our ills”
EPISODE 2 – “Macron is a Gaullist without the referendum”
© / The Express
Article 49.3 of the Constitution does not have a good press. It allows any government to pass a law without a vote. The executive then exposes itself to the motion of censure which, if adopted by the deputies, will lead to its resignation. A tool aimed at ensuring governmental stability, section 49.3 has become the symbol of the pre-eminence of the executive power over the legislative. Associate professor at Sciences Po, Olivier Rozenberg – helped by Jean-Félix de Bujadoux for the preparation of the interview – tells the story of this cursed article… and so useful for our rulers.
L’Express: What is the purpose of introducing article 49.3 in our Constitution?
Oliver Rozenberg: Section 49.3 was introduced in 1958 to ensure the efficiency and stability of government. Under the Fourth Republic, governments resigned because their texts were not supported in the Assembly, but without being overthrown by an absolute majority of deputies! They threw in the towel because of their political weakness.
In 1958, the idea is to place the deputies face to face with their responsibilities: are you opposed to a text to the point of wanting to bring down the government? If these deputies censure him, they expose themselves to a potential dissolution of the National Assembly and new legislative elections.
So is there a consensus?
This measure was proposed by the Christian Democrats at the end of the IVth century. They take it up again during the preparation of the 1958 Constitution with the support of the Socialists. The Gaullists, on the other hand, are quite skeptical. That a text can be adopted without the express consent of Parliament is a problem for Michel Debré.
The procedure basically aims to save parliamentarism by making it more stable. De Gaulle is not in this logic. His vision is that of a strong president who leads the state by giving a secondary role to Parliament. The Gaullists, however, allow this provision to pass. How ironic! This article is considered today as a Gaullist legacy, which it is not.
Did the first governments of the Fifth Republic make extensive use of this article?
Very little. It is used for four texts under the presidency of De Gaulle, and never under that of Pompidou. For the Gaullists, this tool is so extraordinary that it must be reserved for exceptional cases. And then, de Gaulle has a stable majority from 1962, he does not need it.
Practice has shown it: there are several types of use of the 49.3…
There is three. Historically, the tool is used to govern when part of the majority is hesitant. Raymond Barre’s government uses it for five projects because the Giscardians are a minority in the Gaullist majority. Manuel Valls uses it in the same spirit in 2015 to have the Macron law adopted and in 2016 for the Labor law. He then places the socialist rebels before their responsibilities.
A second use develops under François Mitterrand. It aims to fight against the parliamentary filibuster of the opposition. This can be seen since 1982 with the law on nationalizations. The scenario is repeated during the first cohabitation and then the second term of Jacques Chirac, with the adoption of the CPE. Latest example to date: Edouard Philippe triggers 49.3 in 2020 to pass his pension reform in the face of the assumed obstruction of LFI.
A last use finally allows minority governments to have important texts adopted. 49.3 is here a remedy for the absence of an absolute majority. This is the case during Mitterrand’s second term or since the last legislative elections.
Does use by minority governments break with the spirit of the Constitution?
The tool was not designed for this. Professor Pierre Avril spoke in 1993 of a “misuse of procedure”. However, this usage by definition respects the Constitution. The Rocard experience has also been positive. 49.3 was used to sanction the failure of a parliamentary negotiation and not to remedy it. Rocard was trying to find a majority with the Communists or the Centrists. When he couldn’t, he used 49.3. His adviser Guy Carcassonne spoke of 49.3 “respectful of Parliament” because it was only activated at the end of the race.
Section 49.3 also aims to make the Assembly accountable by offering it the possibility of censuring a government. Is it also a power granted to him?
Some make a positive assessment of 49.3 saying that democracy gains in clarity. Voters know who supports the government and who does not. The 49.3 is indeed a tool of clarification which invites everyone to take their responsibilities. The problem is that it changes the majority threshold: to defeat a text, a relative majority is enough, while to bring down a government an absolute majority is needed.
However, no motion of censure was adopted after a 49.3…
It didn’t go far sometimes. In 1990, five votes were lacking on the creation of the CSG. This year, it is played with nine votes for the pensions. There is of course a cost for the deputies to censure the government: they expose themselves to a potential dissolution of the Assembly.
The use of 49.3 sometimes suits the deputies who do not have to assume their vote on an unpopular text…
As there is no vote on the text, everyone can benefit from it, the opposition as well as the government’s allies. In 1982, Pierre Mauroy put an end to the blocking of prices by means of the 49.3. The Communists – who have ministers in the government – do not have to decide on this unpopular reform. This year, LR deputies were reluctant to vote for pension reform, caught between their convictions, their voters and their leaders. Macron’s choice finally relieved them.
The 49.3 sometimes lends itself to a game of four cushion billiards. In 2015, Manuel Valls uses it to pass the Macron law. The Prime Minister – jealous of his economy minister’s success in parliamentary negotiations – was suspected of having imposed 49.3 to inflict a political defeat on him. All of this poses a problem: it is a kind of coup de force to consider as adopted a text that has not been voted on.
© / Stephane Humbert-Basset
During the pension reform, Elisabeth Borne equated the vote on the motion of censure with that, aborted, on the text. What about this equivalence?
It is false, the deputies did not vote on the pension reform. If there was no absolute majority against the government, there was probably a relative majority against its text. But it’s fair game: Elisabeth Borne needs to say that her text has been supported. And the opposition systematically cries scandal, forgetting that it has used this procedure previously.
In 2008, the constitutional revision of Nicolas Sarkozy limits its use. Why this development?
At the time, there was an abuse of 49.3 used to fight against obstruction. However, the constitutional revision of 2008 sets up tools to fight against obstruction, such as the limitation of the duration of examination of a text in session. Moreover, at the time, we had the feeling that with the advent of the five-year term in 2000, the governments would have clear and stable majorities. It was a double error of assessment: the obstruction continued and the legislative elections of 2022 gave birth to a relative majority.
The preparation of this reform is interesting. Nicolas Sarkozy was thinking of removing 49.3, no doubt to leave a liberal trace in history. The Balladur committee proposes to limit it to the only budgetary texts and, during the discussion, the Parliament adds a text per year. It’s a sort of Stockholm syndrome out of loyalty to an invented Gaullist tradition.
This evolution is also the sign of a growing unpopularity of the article, the use of which triggers a lawsuit in authoritarianism. How to explain it?
The unpopularity of the article played a role in the 2008 revision and the reluctance of governments to use it. After the retreats, Elisabeth Borne expressed the wish to no longer trigger it outside of budgetary texts. However, I do not think that the unpopularity of 49.3 is really linked to the perception of a denial of democracy. The most criticized legislative projects cause obstruction which, in turn, sometimes triggers 49.3. What puts people in the street is more the final adoption of the text than the way it was conducted. Whether Alain Juppé in 1995 for Social Security, Dominique de Villepin for the CPE, Manuel Valls on the Labor Law or Elisabeth Borne on pensions. Each time, the use of 49.3 reinforces a pre-existing anger.
Finally, 49.3 is not all-risk insurance. The power often pays for this passage in force by points of unpopularity in the polls and even, sometimes, by the impossibility of implementing the text.