The democratic shortcomings of political parties in Spain between constitutional requirements and a deficient legal regulation. A proposal de lege ferenda

Abstract

The contemporary political systems of liberal representative democracies have framed political parties as associations. This legal configuration has the virtue of conferring great freedom to the various sectors and political sensibilities of society when it comes to forming political parties, thus ensuring that their organization and operation are free from undue interference. Although this freedom of association is a fundamental premise in those historical contexts in which a liberal democracy is established preceded by a totalitarian regime, its scope and content must be questioned in the light of the challenges and problems posed by political parties in the new political reality we live in, especially in Spain, which has been adequately named the State of parties. Indeed, political parties have become the essential intermediaries between popular sovereignty and the institutions of the State, holding even greater levels of power without this seeming to result, in view of the various surveys conducted among citizens, in a political system of greater democratic quality or in a better management of the general interest. In this respect, the Spanish Constitution contemplates a clear and precise mandate regarding the necessary democratic nature of the organization and functioning of political parties; a mandate whose full development has only been partially carried out by the Law on Political Parties currently in force. In this sense, the halfheartedness of the legislator in establishing the necessary mechanisms and guarantees to promote political parties whose functioning and organization are truly democratic in order to adequately fulfill the functions constitutionally entrusted to them is striking. The observed halfheartedness cannot be protected by the associative nature of political parties since, as the Constitutional Court has established, the special and relevant functions assigned to them leave a wide margin of intervention to the legislator. Likewise, the detailed and extensive regulation that the legislator carries out on the functioning and organization of the companies in corporate law, which should be, par excellence, the entities that present a greater margin of self-organization for the management of their eminently private interests, contrasts with the imprecision and vagueness of the norms that are called to regulate the democratic
character of some entities that monopolize the democratic game and the great political decisions in our contemporary societies. For all these reasons, the reflection reflected in this article proposes the possible application of some guarantees and normative provisions from the field of capital companies to the regulation of political parties. Lastly, the article echoes some of the rules of comparative law, in particular German and Portuguese legislation, regarding political parties, which could inspire a reform of the Spanish law, which is suggested as urgent and necessary.