{Reposted from the author’s website}
Note: This piece is a response to an essay by Haviv Rettig Gur, which can be found here
Israel’s current political crisis exemplifies the maxim that hard cases make bad law. This case is desperate. Six months after the coronavirus erupted and nine months after the fiscal year began, Israel still lacks both a functioning contact-tracing system and an approved 2020 budget, mainly because Prime Minister Benjamin Netanyahu is more worried about politics than the domestic problems that Israel now confronts. The government’s failure to perform these basic tasks obviously invites the conclusion that civil servants’ far-reaching powers must not only be preserved, but perhaps even increased.
This would be the wrong conclusion. Bureaucrats, especially when they have great power, are vulnerable to the same ills as elected politicians. But unlike politicians, they are completely unaccountable to the public.
That doesn’t mean Haviv Rettig Gur is wrong to deem them indispensable. They provide institutional memory, flesh out elected officials’ policies, and supply information the politicians may not know and options they may not have considered. Yet the current crisis shows in several ways why they neither can nor should substitute for elected politicians.
First, bureaucrats are no less prone to poor judgment than politicians. As evidence, consider Siegal Sadetzki, part of the Netanyahu-led triumvirate that ran Israel’s initial response to the coronavirus. It’s unsurprising that Gur never mentioned Sadetzki even as he lauded the triumvirate’s third member, former Health Ministry Director General Moshe Bar Siman-Tov; she and her fellow Health Ministry staffers are a major reason why Israel still lacks a functional test-and-trace system.
Sadetzki, an epidemiologist, was the ministry’s director of public-health services and the only member of the triumvirate with professional expertise in epidemics (Bar Siman-Tov is an economist). As such, her input was crucial. Yet she adamantly opposed expanding virus testing, even publicly asserting that “Too much testing will increase complacence.” She opposed letting organizations outside the public-health system do lab work for coronavirus tests, even though the system was overwhelmed. She opposed sewage monitoring to track the spread of the virus. And on, and on.
Moreover, even after acknowledging that test-and-trace was necessary, ministry bureaucrats insisted for months that their ministry do the tracing despite its glaringly inadequate manpower. Only in August was the job finally given to the army, which does have the requisite personnel. And the system still isn’t fully operational.
None of this absolves Netanyahu, who could have overruled Sadetzki but didn’t because he also opposed involving the army, out of reluctance to share power with his defense minister. It merely shows that letting the “professionals” take charge wouldn’t guarantee a better outcome.
Nor is that the only problem. Civil servants are also just as vulnerable as politicians to letting extraneous considerations influence their decisions. Both often abhor sharing power. Health Ministry bureaucrats opposed outsourcing contact tracing to the army for the same reason Netanyahu did: they didn’t want to cede control. Both can also have conflicts of interest.
Shaul Meridor, the treasury budget director whose resignation opens Gur’s article, is a perfect example, as a Ha’aretz report in September shows. Back in 2012, as a less senior treasury official, he was actively involved in the Tzemach Committee, which drafted Israel’s natural-gas policy. He pushed for letting more gas be exported rather than reserving it for domestic consumption, a position the gas companies favored. The lawyer representing the companies at that time was none other than his brother, Mattan Meridor. Later, in 2015, Shaul was appointed director general of the Energy Ministry and put in charge of implementing the new policy. Mattan therefore stopped representing the companies in negotiations with the ministry, but his firm continued to do so.
Former Prime Minister Ehud Olmert was convicted of breach of trust in 2012 for not dissimilar behavior: in his previous role as industry minister, he made decisions benefiting corporate clients of a lawyer friend rather than recusing himself due to a conflict of interests. But there’s one significant difference: ministry bureaucrats had opposed some of Olmert’s decisions, which was considered evidence that he was motivated by favoritism rather than policy considerations. Meridor can never be accused of disregarding the bureaucrats’ judgments, because he is the bureaucrat making the judgments.
To be clear, I don’t think Meridor did anything criminal. (I wouldn’t have convicted Olmert in that case, either; I think politicians are allowed to disagree with bureaucrats.) Nor do I blame him for the sweetheart deal the companies received, which left Israelis paying well above market rates for natural-gas even as promised billions in royalties never materialized; Netanyahu badly wanted to get the gas flowing and pushed for major concessions to the companies to do so.
But it’s hard to deny that Meridor had an egregious conflict of interests, of the type that would have outraged the legal establishment and the media had he been a politician. (The Justice Ministry did eventually step in, but very belatedly.) Being an apolitical civil servant doesn’t immunize anyone against extraneous considerations.
A third problem is that bureaucrats are often poorly attuned to political sensitivities. Granted, that’s sometimes an advantage: Netanyahu has repeatedly gutted measures to curb the spread of the virus because he’s overly attentive to his ḥaredi allies. But sometimes, it’s a huge disadvantage—as demonstrated by that very same issue.
One reason the Ḥaredim have repeatedly resisted such measures is because they feel singled out for censure from other Israelis who also haven’t been paragons of good anti-viral behavior. Objectively, they haven’t been singled out. Health officials have targeted yeshivas and synagogues rather than, say, the mass anti-Netanyahu demonstrations that have been taking place in Israel for months because infection is more likely to spread indoors than outdoors. And officials have sought tighter restrictions on ḥaredi communities because Ḥaredim account for a disproportionately high share of COVID-19 infections.
Nevertheless, ḥaredi grievance didn’t emerge from nowhere. Even during Israel’s first lockdown, long before evidence emerged that demonstrations pose a limited infection risk, Attorney General Avichai Mandelblit and other senior legal officials insisted that protests be exempt from lockdown rules—not on health grounds, but because protesting is a fundamental democratic right. That remains their position to this day.
But legally speaking, it’s not clear why freedom to demonstrate trumps free exercise of religion or freedom to earn a living—all are fundamental rights. Indeed, the last could arguably claim precedence in Israel’s legal system, since it’s the only one explicitly protected by a quasi-constitutional Basic Law (the Basic Law: Freedom of Occupation). Thus by according the right to protest special privileges, legal officials were making a value judgment—one that happened to favor the needs of secular leftists, who comprise the bulk of the anti-Netanyahu protesters, over the needs of Ḥaredim, for whom yeshiva study and synagogue worship are far more important than demonstrations. That rankled deeply, and it bolstered ḥaredi opposition to the latest restrictions.
The bureaucracy obviously isn’t solely to blame for anyone’s noncompliance. Ḥaredim are far from the only people flouting the rules. And their legitimate grievance doesn’t excuse the prime minister’s capitulation to their demands. Nevertheless, this is a classic example of how bureaucrats’ political tone-deafness can undermine their ability to implement the apolitical policies at which they ostensibly excel.
The final problem is that unless Israel abandons democracy entirely by stripping elected officials of any real power, civil servants’ ability to compensate for politicians’ follies will always be inherently limited. Indeed, Gur’s article underscores that point: the fight between the “treasury youth” and the politicians over Israel’s coronavirus spending ended in the bureaucrats’ complete defeat. They resigned from the treasury, while the politicians are still riding roughshod over budgetary norms.
For all these reasons, governance salvation cannot come from bureaucrats; it can only come from inculcating greater responsibility in our politicians. And in this regard, the bureaucrats’ already immense power is clearly counterproductive.
As Gur correctly noted, the fact that unelected bureaucrats now decide the “fundamental questions that . . . are considered the heart and soul of politics” has produced a “trivialized” politics and irresponsible politicians. Once, people entered politics to shape the country’s future. But for today’s Knesset members, convinced that they have little chance of actually affecting policy, garnering media attention through ever more outrageous statements and bills is one of the few things they can do to feel like they matter. Thus if Israel wants a responsible political class, it must reduce the bureaucrats’ power and thereby enable politicians to make their names through policy rather than sensationalism.
It also needs to create personal accountability for MKs. Israel is virtually unique among Western democracies in that its MKs aren’t directly elected and therefore never answer to the voters for their conduct. Since Israelis vote only for parties, MKs’ political futures depend solely on their placement on their party’s slate. In parties without primaries, that placement is determined by the party leader. In parties with primaries, it’s determined largely by so-called vote contractors—representatives of special-interest groups who can mobilize large numbers of party members behind their preferred candidates.
Solving this problem doesn’t require replacing Israel’s current proportional representation system with an Anglo-American constituency system. There are various methods of directly electing MKs while maintaining proportional representation, and most Western parliamentary democracies use them. It’s long past time for Israel to do the same.
Finally, there’s simply no avoiding the fact that Netanyahu’s current behavior, following four terms of largely responsible leadership, is due entirely to his criminal indictment. As Gur noted, he’s played politics at the expense of both virus-fighting efforts and the economy because the only way he can secure immunity from prosecution is by holding new elections that he hopes will give him the parliamentary majority needed to amend the law and save him from standing trial.
Thus, even though an indicted prime minister is an unprecedented event for Israel that hopefully won’t recur, legislation is needed to address the possibility. One option is to bar anyone under indictment from forming a government, but that would give the legal bureaucracy far too much power to determine who may or may not be prime minister. The other option is the route taken by most Western democracies: immunity from prosecution while in office coupled with term limits to prevent that immunity from becoming permanent.
If Israel wants to remain a democracy, expanding civil servants’ already excessive power is no solution. The only option is to start the long, hard work of building a more responsive and responsible political class.