Judicial review of constitutional transitions: war and peace and other sundry matters.

• Author: Weill, Rivka
• Position: III. Treating Caretaker Action as Justiciable C. Distribution of Material Goods to the Public through VI. Conclusion, with footnotes, p. 1417-1446

3. Distribution of Material Goods to the Public

   1. Distribution of Material Goods to the Public

      The decision concerning the authority of the Committee for the National List of Reimbursed Drugs (NLRD) to convene on the eve of Knesset elections dealt with the distribution of material goods by a caretaker government. (171) At first glance, the decision is mystifying. The NLRD Committee was banned from convening before the elections but was permitted to convene immediately after the elections, even before a new government was formed. (172) It was further emphasized in the Israeli Supreme Court's decision that, after the elections, the caretaker government was permitted to decide to adopt recommendations of the Committee to expand the NLRD. (173)

      How can the court's decision be explained? If the ban on convening the NLRD Committee was based on the government's status as caretaker, this status would not have changed after the elections until a new government was formed. It would have been expected that a caretaker government's actions banned before elections would be even more verboten after elections. (174) In the words of President Barak in Weiss, the range of reasonableness in which a caretaker government is entitled to act "becomes narrower--and the need for restraint and reserve made more necessary--after the elections, and before the elected prime minister begins his term in office." (175) But the NLRD judicial decision allows a caretaker government to perform functions after elections that it is not allowed to perform prior to elections.

      Although this was not explicitly stated by the court, this Article suggests that the rationale underlying the NLRD decision was the concern that, if the NLRD Committee and, in turn, the government decided to expand the NLRD before elections, this would have constituted a form of "bribery" and an attempt to distribute material goods in the form of drugs in order to gain electorate support for the existing government. (176) Justice Miriam Naor might have been insinuating this when writing that: "The real conflict is that the government decision, which the petitioners are aiming for, will be rendered before the elections and under the pressure of elections, thereby increasing the chances that the government will accept the NLRD committee's expected recommendation." (177) Since this involved a risk of distribution of material goods as a means of influencing the election's results, the court saw fit to bar the expansion of the NLRD before the elections, but permitted it after the elections when there was no cause for concern that the decision could constitute a form of election bribery. Obviously, the distribution of drugs after elections cannot change election's results that have already been decided.

      The decision to expand the NLRD--as opposed to the timing of the expansion--did not call for caretaker restraint in the court's view, since there was a "vital public need" for taking action to save lives. (178) Moreover, this Article suggests that the decision to expand the NLRD did not deviate from the country's regular course of business. Consequently, this action was not significant enough to warrant postponing the action for a new government.

      Another example of this category of material goods may be found in the court's decision regarding the timing of submission of investigative committees' reports. Regional Municipality of Modi'in v. Minister of Interior dealt with the question of when investigative committees should submit their reports to the Ministry of the Interior. (179) Because the reports implied change in the boundaries between local authorities and had potential implications for the distribution of income among municipalities, they could have affected the regional elections. (180) Probably for this reason, the court decided that "[t]he committee's recommendations shall not be submitted until after the elections for the local authorities." (181)

      Because the court distinguished between pre- and post-election distribution of goods, this Article suggests that if the court believed the government intended to distribute material goods on the eve of elections as a means of indirectly influencing the election's results, the court would prohibit the action before the elections but allow it afterwards, even before the formation of a new government. In principle, this could be within the government's regular sphere of authority; thus, if not for the timing on the eve of elections, it would not have been problematic even for a caretaker government.

   2. Comparing Distribution of Material Goods and Public-Sector Appointments

      But why is the distribution of material goods different from public-sector appointments? On its face, both constitute distribution of goods on the eve of elections. Yet, the court applies a different law to the two categories. (182) Public appointments must wait until a new government is formed. (183) In contrast, the government may not distribute material goods pre-elections, but can do so post-elections and even before a new government is formed. (184)

      This Article suggests that the divergent treatment can be explained by examining the beneficiaries and consequences of each act: a public appointment benefits the appointee; for him or her, it resembles the distribution of goods. Yet the consequences to the public are continuous throughout the appointment period and extend well beyond election time. Thus, the appointment is arguably a way to continue influencing, setting, and even entrenching the government's agenda after the government's caretaker period ends. A public appointment should therefore not be regarded as purely a matter of political hygiene, but should be avoided until a new government is formed.

      The distribution of actual material goods, on the other hand, benefits members of the public who receive the good and certainly can influence elections if done near elections. But its effects are usually short-lived; research indicates that people are more affected in their immediate decisions by short- rather than long-term considerations, and thus distribution done years in advance of the next election will probably not influence people's votes. (185) It makes sense, therefore, that the government may distribute material goods to the public as long as it is done after the elections, whether or not a new government has formed.

   3. Comparative Experience with Distribution of Material Goods to the Public

      Not only do Israeli governments distribute material goods to the public during transition times, but U.S. presidents, too, utilize their power during the end of their presidency to distribute favors and goods to individuals, interest groups, and the public at large. In addition to the exercise of the appointment power already discussed, which often requires the Senate's cooperation, presidents utilize their unilateral pardon power in favor of contested cases. (186) The pardon and appointment powers benefit specific individuals.

      Presidents also unilaterally declare vast parcels of land as national monuments and parks. (187) This may already serve as a "bribery" technique to affect the election's results. Indeed, President Clinton turned many acres into nature reserves in order to assist Al Gore in his election campaign. (188) It should be noted, however, that it is more common for presidents to exploit their unilateral power in the ways mentioned after elections rather than before. Two explanations may be offered for this post-election behavior. First, when this behavior is manifested after elections, it is generally intended to affect presidents' "legacy" rather than influence election results already decided. (189) Second, presidents utilize these unilateral powers more after elections when they fear influencing the ballot in unwanted ways if actions are pursued before elections. If their behavior carries the risk of being unpopular, they will wait until after elections to execute their plans. (190)

      These last-minute actions are typical to U.S. lame-duck presidents but not to caretaker governments in parliamentary systems. (191) This divergence can be attributed not only to the existence of effective caretaker conventions in parliamentary systems, (192) but also to the fact that, in parliamentary systems, prime ministers typically do not enjoy unilateral powers equivalent to those enjoyed by U.S. presidents. (193) Furthermore, this lame-duck concern about presidential legacy is more characteristic of the "cult of personality" that accompanies presidential rather than parliamentary systems. (194)

      This Article concludes by stating that the Israeli Supreme Court stepped into the vacuum caused by the lack of constitutional conventions regarding Israeli caretaker governments. The court will not hesitate to restrict caretaker actions if it believes that the actions should be postponed until a new government is formed, as is the case with public-sector appointments. (195) In this respect, the court functions as a restraining power on Israeli caretaker governments, much like constitutional conventions in other parliamentary systems. (196) But no similar restraining power inhibits U.S. lame-duck presidents. This perspective only makes the Israeli Supreme Court's position on peace negotiations more puzzling. Why does the court permit caretaker governments to negotiate for peace but ban them from making public-sector appointments? Shouldn't one be worried about democratic legitimacy or extraneous considerations when caretaker governments negotiate for peace? Or does the court's position show that regulating caretaker action has or should have limitations bounded by the political question doctrine? In the next Part, this Article proposes and critiques a number of possible explanations for the court's divergent treatment of peace negotiations, on the one hand, and public-sector appointments, on the other.

      4. WHY DISTINGUISH PEACE NEGOTIATIONS FROM PUBLIC-...