How should a situation in which media ownership and control of political power overlap be dealt with? The aim of this article is not to discuss the relation between the mediaFootnote 2 and politics in general; that has recently been done in a persuasive way in this journal.Footnote 3 Rather, the aim here is to investigate whether that overlap might be effectively addressed through a conflict of interests (COI) regulation strategy. The empirical basis of my argument is Italy during the periods of Silvio Berlusconi's governments (1994; 2001–6; 2008 to the present). During these periods, Berlusconi has been both the leader of the parliamentary majority (and as such in a position to influence the public television networks that represent half of the national broadcasting system) and the owner of a private media empire (organized around three television networks representing roughly the other half of the same national broadcasting system) at the same time. This overlap between media ownership and governmental power control has presented a formidable challenge to the basic democratic principle of fairness in political competition. One could ask whether this challenge was met by the COI regulation approved by the Italian parliament in 2004. My answer is that it was not, and that it could not have been; the overlap, by its very nature, would require more than a COI regulation to contain it.
In established democracies there are no comparable examples to the Berlusconi case of a media tycoon becoming a national political leader. However, in a larger comparative perspective, there is no lack of circumstantial evidence, especially at the local level – as epitomized by the New York's mayor Michael R. BloombergFootnote 4 – that the ownership or control of a media company might represent a formidable resource for achieving political power. Given the growing importance of the media business in all advanced economies, one might expect that media tycoons will try to translate their economic power into political influence, as was done in the past and as continues to be done in the present by other powerful economic actors. One might take the role played by Rupert Murdoch in the USA, Australia and Europe as an example of this. In the USA the News Corporation (whose holdings include Fox News Channel, the Wall Street Journal and the New York Post) was crucial in affecting the mid-term congressional elections of 2 November 2010, for instance, giving ‘1 million dollars to a business coalition that [advertised] heavily against Democrats’.Footnote 5 In the UK, Rupert Murdoch already controls 37 per cent of the daily news market and is now working towards obtaining the majority control of BSkyB, a television platform (of which he already controls 40 per cent). However, there are certainly no signs that Murdoch plans to use his media power to become either US president or UK prime minister. Indeed, this is the Italian anomaly; that anomaly might cease to be one, though, if it were properly understood.
This article will proceed as follows: first, I will analyse the implications of a television-based political process, namely that it is focused on political leaders at the expense of political parties. Television is not only the fundamental arena of political competition, but it is also the basic resource for creating successful leaders. Secondly, I will examine this personalization of politics in Italy, arguing that the ownership or the control of television by Silvio Berlusconi has been crucial to the success of his political career. Through the control of large part of the national television stations,Footnote 6 Berlusconi has been able to foster his political role, to the detriment of his adversaries or competitors, thus altering the basic principle of fairness (or equality of opportunity) in electoral and political competition. Thirdly, I will discuss how the Italian political elites dealt with this anomaly, by interpreting it in terms of COI. I will then conclude, arguing that using COI regulation (for dealing with the challenge represented by a media tycoon playing a political role) is a necessary but insufficient strategy.
THE CENTRALITY OF POLITICAL LEADERS
It has been argued by many scholars that one of the most important transformations undergone by democratic politics since the middle of the twentieth century has been the spread of mass communication (television in particular). According to Sartori, ‘the breaking off in democratic politics took place in the mid-20th century with the television’.Footnote 7 The growth of television has created a new context for the development of political competition. Arterton, probably one of the first scholars investigating that transformation more than a quarter of century ago, asserted that television had become indispensable ‘to facilitate the transmission of political information and opinion between citizens and their public leaders’.Footnote 8 In my argument, television is relevant because it has contributed to the transformation of democratic politics from a party-oriented to a leader-dominated one.Footnote 9
Television has created an environment where political debate is between political leaders rather than between political parties. The declining importance of social cleavages for setting up political identities and the consequent downsizing of the role of political parties have created a void in electoral communication and political representation.Footnote 10 Television has filled that void, promoting new patterns of communication and representation. The emphasis on the personal qualities of leaders rather than on political programmes might also be considered an outcome of the growing complexity of policy-making. In contemporary democracies many policy decisions are externally determined, by international organizations such as the World Trade Organization or the G-20, or in Europe by the supranational European Union in crucial areas such as economic and monetary policies, trade policies and defence. In this context, it is cumbersome to identify what differentiates the policy proposals of one political leader from another, and thus their personal qualities have become a way of attributing meaning (accessible to a broad audience) and fostering identification (in a destructured public) in an otherwise obscure political reality. The more politics becomes complex, the more the public feels the need to single out some sound-bite in order to relate to it: the leaders serve this purpose.
In a television-based political process, the personalization of political debate has become inevitable. It is difficult to attract attention through the narrative of impersonal events; it is the reports of rivalry and discord between leaders that more easily evoke emotions and identifications by viewers. In television, the complex historical, institutional and social processes that gave rise to an event and shape its outcome are simplified in order to present them as a confrontation between political leaders, as competition between rival contenders for the commanding heights. On the television screen, political narrative has been gradually transformed into a kind of political biography. The complexity of political phenomena has been replaced by the personal abilities or shortcomings of a leader. In popular talk shows, nothing is more attractive than a personal confrontation between leaders. It might be argued that the logic of television communication has led to an interpretative typology of politics based on the friend/foe dichotomy: television has resurrected Carl Schmitt.Footnote 11
The leaders have thus come to take the centre stage of political competition. In a national competition parties are not seen as autonomous agencies; they matter because of their connection with a leader. Some parties may have strong territorial roots in specific areas of the country, but their national success will depend on the attractiveness of their leaders. Without a good leader it is impossible to win elections; without a leader it is impossible to even run in them. The politician, not the party, has become the message. Moreover, a television-based political process has tended to award the leader that resembles ‘us’, not the one that ‘is different from us’. Television has provided an enormous impetus for transforming politics into a structurally populist game. The successful leader is the one who knows how to talk to ‘the people’, with his/her words if not with his/her body. Indeed, the successful leaders are those who understand the populist character of politics in a television-based political competition.
However, the personal qualities of a leader are the result of an interactive process between the latter and the media (and television in particular). On one side, the success of the strategy of construction of leadership depends on the ability of the leader in question to harmonize with the audience of viewers. The successful leaders have been those who use a particular talent for singling out phrases and gestures capable of creating an emotional tie between them and the viewers/listeners. On the other hand, that success is also dependent on the willingness of the media (and television in particular) to support the leaders' ambitions. The leaders are constructed although they, in their turn, have to assist in the process. So, what happens when the leader controls the television that constructs or constructed him/her as leader?
PERSONALIZATION AND POLITICAL THEORY
If parties have been replaced by the leaders as the main actors of electoral competition, it is not necessarily true that the process of personalization has not met with some opposition. Certainly, political parties have seen their role as the basic link between society and the institutions of representative democracy diminished; however – although transformed – parties are still important agencies of electoral mobilization and governmental action. Moreover, the logic of the institutions, in particular in the fusion of power of the European systems, cannot be easily bent in order to accommodate the personalization of politics. Nevertheless, several political theorists have seen personalization as either an indistinct or an unconstrained process.
For example, the French scholar Bernard Manin argues that representative government has now interrupted its march toward popular self-government.Footnote 12 Analysing the experiences of the USA and Europe, Manin retraces the evolution of representative government between the nineteenth and twentieth centuries, dividing it into three distinct political regimes. The phase of parliamentary democracy was based on the political oligarchy controlling legislative government. It was followed by a long period of party democracy based on organized participation and programmatic government. The recent technological and social changes have ushered in a third phase of audience democracy. This is the phase that marks the end of popular self-government. In audience democracy, the electoral decision has become personalized (the electorate votes for a person rather than a party); the representatives enjoy an almost complete autonomy from those they represent (because the voters respond to the proposals of the elected and no longer the other way round); and the cleavages in the electorate are virtual rather than real (to the extent that they are created from above by the politicians instead of being the result of processes occurring in society). In audience democracy, citizens have become a public that listens to or watches the action of the sole protagonists of politics – the leaders, who primarily use their image to attract the attention of their viewers. How can these leaders be made accountable to the voters, if the latter make their evaluation on the basis of the leaders' personal qualities? One might argue that the personal politics propped up by television has weakened the accountability of political leaders while increasing their exposure to the mood of public opinion as informed by the media, and television in particular.
Although Manin is correct in identifying the formidable pressures to personalize politics in contemporary democracies, at the same time he underestimates the political and institutional resistance to the process of personalization. This can be seen in Europe, where leaders dominate parties, but the parties have not become redundant; leaders dominate governments, but the executives continue to function as a collegiate body. Pressures for personalization have been evident in the electoral arena, contributing, inter alia, to the opening up of the system for selecting candidates in several European parties.Footnote 13 Yet, once elected, leaders have to rely on parties and cabinets for governing. Admittedly, in those systems where the members of parliament are elected by single-member districts (with a simple majority in Great Britain or run-off elections in Fifth Republic France) the vote has acquired a personal character. Nevertheless, it is also true in these democracies (parliamentary in the first case, semi-presidential in the second) that governments cannot function without parties connecting the parliamentary majority to the executive's prime minister (and also to the president in the French case).
In the case of France, it seems plausible to argue that, because the president is directly elected, personalization has extended more easily to the executive than in parliamentary Britain, especially when the president enjoys a solid majority in the legislature (as is the case with Nicolas Sarkozy, whose electoral victory in May 2007 was followed by the success of his party in the parliamentary elections of the following month). However, also in the French case, the president requires the support of his own party in order to have his proposed legislation passed. Even in the USA, where the president is not dependent on the confidence of Congress,Footnote 14 he has to look for partisan support in Congress in order to advance his own legislative agenda (as shown by the contrasted process of approval of the health reform bill in spring 2010). Although the personalization of the executive has encountered substantial obstacles in Great Britain and France, this has not been true in Second Republic Italy (post-1993),Footnote 15 in particular during the governments of Silvio Berlusconi (1994; 2001–6; 2008 to present).
PERSONALIZATION OF POLITICS IN ITALY
The rise of Silvio Berlusconi as undisputed leader of the Italian centre-right can be considered to be a direct consequence of the diffusion of television in political communication. In Italy, television has contributed to the undermining of the traditional class- or culture-based identities of sections of society. The society that emerged from the technological revolutions of the 1980s and the globalization of the 1990s is no longer organized along the lines of an industrial society. In a society constituted by individuals more than by groups, television has taken on the crucial function of constructing new patterns of political representation. The leadership of Silvio Berlusconi has been instrumental in aggregating a society that has become increasingly individualistic.Footnote 16 The personalization of Berlusconi's leadership is the outcome of a political process that has also been seen in other countries, as shown by personal (and not party) leaders such as Nicolas Sarkozy in France, Tony Blair in Great Britain or Barack Obama in the USA. The difference is that in these other democracies the leader has not also controlled the process of personalization of which he was (and continues to be) the beneficiary. This is the Italian peculiarity.
Silvio Berlusconi employed (and continues to employ) the political influence of the national television networks to serve his political career in a way that neither Sarkozy nor Blair nor Obama would ever have been able to do. This has been possible in Italy because of the ownership of the national broadcasting system. Until the 1980s, television broadcasting was a public monopoly; its national channels were colonized by the main political parties, according to a scale of electoral power, and even the opposition was consociated in the distribution of television spoils. With the dawn of the 1990s, the public monopoly of television broadcasting gave way to a public (RAI) and private (Mediaset) duopoly, with the latter owned by Berlusconi.Footnote 17 At the same time, the crisis of the post-war party system opened a formidable window of opportunity for Berlusconi to enter politics and then also to influence the public broadcasting system. In fact, since the latter is controlled by parliament, the conquest of the parliamentary majority by Berlsconi (in 1994, but especially 2001 and 2008) has given him the legitimate authority to extend control to almost the entire television system of the country.
In 1993, the crisis of the post-1945 Italian party system (the proportions of which were unparalleled in any European country) permitted Mediaset to transform itself into the organizational and cultural base of a new party (Forza Italia). Since then, the owner of a media empire has also been the main political leader of the country. Silvio Berlusconi has been able to combine the role of television entrepreneur with that of political entrepreneur. Forza Italia was not simply a personal party,Footnote 18 but also a tele-party: the first one in the history of Western democracies. In 2008, the transformation of Forza Italia into the new encompassing party of the centre-right, Popolo della Libertà (including other previous parties such as the National Alliance, led by Gianfranco Fini, current president of the Chamber of Deputies) tried to magnify further the personal leadership of Berlusconi. The television networks of the private entrepreneur Berlusconi together with the public television networks affected by him once he was in government have inevitably fostered his leadership.
Since his entrance into the electoral arena (1993), Silvio Berlusconi has deliberately acted as if the country were a large single-member electoral district with his personal victory or defeat at stake. Both under the electoral system passed in 2005Footnote 19 (and adopted in the elections of 2006 and 2008) and the quasi-majoritarian electoral system passed in 1993Footnote 20 (under which elections were held from 1994 to 2001), the centre-right has been embodied by a single candidate: Silvio Berlusconi. The candidates of the blocked lists of the post-2005 period and the candidates of the single-member districts of the pre-2005 period were stand-ins for the only candidate: Silvio Berlusconi. Certainly, with the blocked lists adopted as of 2006 and 2008, the electoral personalization of Silvio Berlusconi rose to unprecedented heights. Not only was he the frontman of several blocked lists, but the candidates of the various blocked lists ran their electoral campaign on his behalf and not for themselves. In the various electoral districts, the success (or failure) of the list was not due to the individual qualities of its members, but to the trust – or distrust – placed in Berlusconi in these constituencies. Thus, after the success of the centre-right in 2001 and 2008, this personalization of electoral politics made Berlusconi the undisputed leader of the executive.
However, Berlusconi had to overcome considerable hurdles in his efforts to transform electoral personalization into personal power at governmental level. In the period 2001–6 the struggle between the parties of the coalition led to some ministers being replaced and then to a government reshuffle in 2005. Since 2008, the rivalry with the other co-founder of the encompassing party Popolo della Libertà (Gianfranco Fini) has constituted a permanent restriction on Berlusconi's full control of the parliamentary majority. Indeed, in the summer of 2010, he went so far as to angle for the expulsion of Fini from the party. Moreover, in both periods, the alliance between the centre-right parties/party and the Northern League was – and has continued to be – a source of permanent tension within the parliamentary majority. Finally, the constitutional court and the president of the republic have regularly intervened in order to preserve the division of powers prescribed by the constitution. All this has inevitably constrained the personalization of the executive, although it has not neutralized it.
The media power that Silvio Berlusconi has enjoyed has not only supported his leadership, but has also equipped him with enormous power that can be used against his adversaries, both within and outside his majority. At the same time, the popularity constructed on the basis of his media power has made him less inclined to accept not only the checks and balances of the constitutional division of powers, but also the collegial logic of parliamentary government itself. As a result, Italy has been subjected to a permanent electoral campaign that has fomented a constant tension between the populism of the leader and the constitutionalism of the republic.
BERLUSCONI AND CONFLICT OF INTEREST: THE CENTRE-RIGHT'S PERSPECTIVE
If in Italy the process of personalization has affected all main political groups, it has, however, favoured one leader (Silvio Berlusconi) at the expense of his political rivals. It seems undisputed that Berlusconi's political role has been supported by a television system largely controlled or influenced by him. The dominant role that Berlusconi exercises in Italian political life is also the outcome of a dramatically unfair distribution of political resources. If it is true that television plays a crucial role in constructing and promoting political leaders, then the fact that Berlusconi has the opportunity to enjoy the support of a large part of the national broadcasting networks means he has been given an advantage that challenges the basic democratic principle of equal opportunities for candidates running for office.Footnote 21 How should this unfair distribution of resources be dealt with?
In Italy, the political elites have generally considered the condition of Silvio Berlusconi to be a case of conflict of interests. In 2004, during the period of the centre-right majority of 2001–6, a new Law (Law 215) was approved concerning the regulation of conflict of interests.Footnote 22 The Law provides a general definition of the notion of conflict of interests. A situation of COI arises when a holder of government officeFootnote 23 takes action and participates in decisions on matters in which he/she has direct or indirect private interests that may conflict with public interest. The following cases of COI are covered by the Law: (1) COI existing when the government office-holder does not resign from previously held public or private posts or functions; (2) COI arising when the government office-holder performs, or omits to perform, a mandatory act when his/her interests are incompatible; and (3) COI arising when the government office-holder participates in decisions (even in policy initiation) concerning an act, or omits to perform a due act, that has a specific and preferential weight on his/her personal patrimony, or on the assets of his/her spouse, a next of kin up to the second degree of kinship, and companies owned or controlled by any of them, to the detriment of the public interest.
To deal with these situations, the Law provides for the following regulation: within 30 days of taking up office, the government office-holder must declare to the competition authority (the Anti-Trust Authority or the Communications Regulatory Authority or AGCOMFootnote 24 ) the situation of incompatibility that exists at the date of taking office. In the following 60 days he/she, and also his/her spouse and relatives up to the second degree of kinship, must notify the authority of all data concerning personal assets and shareholdings, including those concerning the previous three months. Next, within 30 days of the receipt of such declarations the Anti-Trust Authority or the AGCOM shall carry out all necessary verifications. The two agencies are empowered to ascertain the existence of situations of incompatibility; they have the duty to supervise compliance with the resultant statutory prohibitions and, in case of non-compliance, should seek to secure: (1) that the competent administration removes or disqualifies from the office or position the individuals concerned; (2) that the individuals concerned are suspended from their public or private employment; and (3) that the professional organizations to which the individuals concerned are registered take action to suspend their inscription to professional registers.
Specifically, if the Anti-Trust Authority verifies that the company headed or controlled by the government office-holder or relevant members of his/her family is aware of a COI and has acted to take advantage of it, the authority shall warn the company that it must abstain from that conduct, inviting it to take the necessary steps or corrective measures. In case of non-compliance, the Anti-Trust Authority can fine the company in accordance with the seriousness of the conduct. The AGCOM is empowered to supervise the conduct of those companies working in the communications sector that are controlled by the government office-holder or his/her relatives. The AGCOM shall also notify a company that has deliberately acted to give advantage to the office-holder to halt its conduct and to adopt, where possible, the necessary corrective measures. In case of non-compliance, the AGCOM has the power to impose penalties and pecuniary sanctions on the company, depending on the seriousness of the violation.
After all verifications, the Anti-Trust Authority and, if competent, the AGCOM make a report to the parliament in the form of a detailed communication addressed to the presidents of the Senate and the Chamber of Deputies. This report specifies: the substance of the advantaged position of the government office-holder, the consequences of the advantaged position and the distorting effects produced in the market, as well as the corrective measures required and any sanctions already imposed. In addition, the two authorities (whose presidents are nominated by the parliamentary majority) must present a six-monthly report to the parliament on their ongoing general activities of control and supervision. If the government office-holder fails to provide the necessary declarations or submits false or incomplete declarations, or has not complied with a specific request of the authorities within the fixed time limit, the authorities then send a documented report about such irregularities to the competent judicial authority and to the presidents of the Senate and the Chamber of Deputies.
In the centre-right's approach, therefore, it is the parliament (that is, its political majority) that has the last word in the eventual punishment of a member of its government for not respecting the rules established by the COI law. Is this enough to neutralize the unfairness of the situation that exists in the media arena between Silvio Berlusconi and his competitors?
THE CENTRE-LEFT'S PERSPECTIVE
The centre-left submitted a draft bill to the Chamber of Deputies in the summer of 2009 in order to advance a different COI regulation.Footnote 25 According to the centre-left, the 2004 Law has structural limits. The main criticisms are that: (1) the scope of the Law, which provides for incompatibility between government offices and management tasks in for-profit companies or in activities of an entrepreneurial nature, does not address the question of ‘mere property’; (2) the remit of the Anti-Trust Authority, when it has verified the existence of a COI, is nevertheless limited to the measures needed to remove the incompatibility; and (3) according to the Law, once the presence of an incompatibility has been proved, the Anti-Trust Authority needs to report to the parliament. Moreover, while the logic of the centre-right Law is to intervene ex post to resolve a COI, the centre-left draft bill aims to prevent a COI from occurring. The centre-left bill is built around the idea that a clear-cut separation between the public and the private spheres must be guaranteed from the outset. For this, ex ante measures are necessary to prevent the rise of COI situations, and must be taken alongside ex post measures, which are to sanction violations once they have occurred. Ex ante measures consist of identifying possible incompatibilities and obligations of abstention in those cases. Ex post measures include warning (diffida) and sanctions to be imposed for any violation.
The centre-left draft bill provides a systematic account of how to interpret ‘absolute’ incompatibility. The role of government officerFootnote 26 is absolutely incompatible with: (1) other public posts (the only exception is the combination of parliamentary mandate with government office); (2) any private or public job position; (3) the exercise of professional activities or self-employment, even if these activities are not remunerated; (4) the exercise of any entrepreneurial activity (even through a third person or trust company); (5) posts within public and/or private companies, public and/or private agencies and foundations (as a president, administrator, major, member of management or surveillance committees or similar posts); (6) ownership of a personal patrimony higher than €30 million consisting of assets whose nature suggests a COI situation (with the exception of state bonds); and (7) ownership (even if through a third person or trust company) of considerable shareholdings (even if lower than €30 million) in the sectors of defence, health care, transport, infrastructure, energy, credit, advertising, public works of national interest, communications and public services within a system of licence or authorization.
The draft bill states that, apart from the cases of absolute incompatibility a government office-holder who is in a COI situation must abstain from participation in any decision that might have a specific effect on his/her patrimonial status or that of his/her relatives up to the second degree of kinship and determine an economic advantage for himself/herself or any of them. The exercise of such obligation of abstention is still supervised by the competent authority. Among ex post measures, a warning is issued when a company headed or controlled by a government office-holder or relevant member of his/family takes discretionary actions with the aim of profiting from a COI situation. In this case, the Anti-Trust Authority shall warn the concerned company that it must take corrective measures or the necessary actions in order to end the violation. Furthermore, financial sanctions would be imposed when the obligation of declaration is not fulfilled, when the rendered declarations are incomplete or false, when the obligation of abstention is not respected, or when there is no compliance with the authority's warning. All kinds of imposed sanctions shall be communicated to the presidents of the republic, the Senate, the Chamber of Deputies and the Council of Ministers.
Finally, in contrast with the 2004 Law, which does not include any specific provision concerning equal access to mass media during electoral campaigns, the centre-left draft bill adds a specific section on this subject. Alongside situations of COI that arise when a government office-holder favours certain companies out of self-interest, the draft bill also considers the mirror-case – when certain companies, working in the media sector, favour candidates running for public posts such as potential government offices. Specific measures must be taken in order to regulate electoral campaigns, and to afford equal opportunities to all political forces, coalitions, leaders and lists of candidates, in the access and use of national public and private television and radio (in accordance with Article 51 of the Italian Constitution, which states that all citizens can access any public post or elective public office under conditions of equality).Footnote 27 It is interesting to note, however, that in 2009 the centre-left was again in minority in parliament and thus the draft bill would not have any serious chances of even being considered in parliament. Indeed, when the centre-left had the majority in parliament (1996–2001 and 2006–8), no law on COI (in the first period) or on reforming the previous law on COI (in the second period) was introduced. So, can we assert that either the centre-right Law or the centre-left draft bill are able, in their own way, to tackle the question of political unfairness in the media arena?
TELEVISION AND POLITICS: BEYOND CONFLICT OF INTEREST
The centre-right Law and the centre-left draft bill deal with (mainly) the economic aspect of the intermingling of media and politics. After all, COI regulations have historically been necessary for dealing with the overlap between economy and politics. Markets have beenindispensable for the development of democracy, but the particular interests they have generated have sought to undermine the universalism of democracy. The relation between politics and economics has been, and continues to be, contradictory.Footnote 28 If democracy wishes to live up to its egalitarian promises, then it has to regulate the way in which economic resources influence decision-making. In a democracy votes count, but resources (frequently) decide the outcome. Accordingly, democracies have sought to prevent: first, those who control the industrial, financial, social and professional resources from gaining political power with which, in turn, they could increase their wealth; secondly, those who hold political power (the head of the government or the president, ministers or deputy ministers, parliamentary leaders or top-level civil servants) from exploiting it in order to acquire economic resources for their own ends or on behalf of a group or a party.
In established democracies, the regulation of conflicts of interest has been designed to preclude the circularity of the relation between economic interests and political power.Footnote 29 As a result, various solutions have been devised, such as the so-called blind trust, which requires that politicians not only refrain from controlling their own property, but also remain ignorant of how it is managed by those responsible for the trust. For historical reasons, Italy has come to recognize the threat posed by conflicts of interest only at a relatively late stage.Footnote 30 During Italy's First Republic (1948–93) politics coincided largely with economics,Footnote 31 due to the existence of an extended public sector of the economy. In this context, the issue of conflicts of interest never arose. The mingling of the spheres of economic interests and political parties has given rise to a widespread mentality of indifference with respect to the separation between private and public spheres.Footnote 32 This mentality has also prospered in the Second Republic (post-1993),to the point that conflict of interests has assumed epidemic proportions.Footnote 33
A more insidious conflict of interests emerged in Italy when Silvio Berlusconi decided to play a political role.Footnote 34 Certainly, Berlusconi also embodies the traditional conflict of interests, particularly if one assumes that he entered politics through the media in order to save and expand his economic business interests and power. The mingling between his media ownership and his control of political power needed to be regulated to prevent Berlusconi from using the latter to foster profits in the former. The implications of such an overlap go beyond a COI regulation, however. Indeed, the COI regulation introduced in Italy with Law 215 of 2004 has not been sufficient to resolve the structural condition of unfairness in political competition between Berlusconi and his adversaries. Even if he is kept ignorant about the economic trend and development of his media empire, and even if the latter is managed by a blind trust, it is nevertheless reasonable to assume that the operators (journalists, editors, officers) of that empire will continue to favour him and not his political competitors. This is a political bias that is currently fully legitimate in a democratic society. This situation might change with the expansion of digital television (DTV), single-issue public channels or the growth of Murdoch's Sky network. Still, for the period considered here, the duopolistic structure of the broadcasting system has supported Berlusconi's leadership much more than the leadership of his rivals. For the time being, this will continue to be the case.
The Italian experience shows that the separation between media and politics will not be effective as long as that duopolistic structure is preserved. Indeed, the Italian parliament, during the centre-right majority of 2001–6, approved a LawFootnote 35 on the reorganization of the radio–television system, which de facto institutionalized that structure, leaving Silvio Berlusconi in a unchallengeable position vis-à-vis his competitors. Once in government (2006–8), though, the centre-left did not even try to reform that Law. On the contrary: it used its majority status to fill the positions of decision-making power in the three public television networks with its supporters, showing the compatibility of its oligopolistic political culture with that of Berlusconi's media business. Berlusconi is thus the beneficiary of the incapacity or unwillingness (by the Italian political elite) to create a pluralistic television market, free from public or private oligopolies. The Italian anomaly is thus the persistence of a structural unfairness in political competition. The centre-right shied away from dealing effectively with this issue and the centre-left has so far been unprepared or unwilling to resolve it.
CONCLUSION
If it is true that television is playing a central role in political competition through the construction or deconstruction of political leaders, then it makes sense to focus on the property structure of the television system in order to guarantee fairness. If politics is more and more about communication, then the ownership of the communication system becomes a constitutional problem, an issue that should be taken away from the will of the majorities of the day. Legislation on conflicts of interest may be useful in preventing media owners from gaining economic advantages through the control of political power, but even stricter COI regulation cannot prevent a broadcasting network from supporting one leader to the detriment of others – that form of support is, per se, fully legitimate. If that network is in a monopolistic or oligopolistic condition, then its political bias may have a significant effect on the outcome of political competition – that outcome is, per se, not fully legitimate.
Italy's experience during the Second Republic has both a peculiar as well as a general character. The concentration of political and media power in the hands of Silvio Berlusconi is the result of the dramatic failure of an entire political elite to comprehend the implications that a concentration of media powers has for democracy. At the same time, the latter is also an indication of a more general transformation of our democracies in which media (and television in particular) has become a crucial power. In politics, media power matters much more than other economic or financial powers. The egalitarian promise of democracy is threatened not only by the concentration of economic resources, but also by the concentration of media resources. If this is the case, then COI regulation is a necessary but insufficient strategy to prevent media, and television in particular, from affecting politics. Such a regulation should be accompanied by a radical fragmentation and diffusion of media ownership. The anti-trust strategy pioneered in the USA at the end of the nineteenth century needs to be further developed in order to deal with the property structure of television and media networks. Formal constitutions or constitutional conventions should make any (public or private) property concentration of the latter impossible.
