On Saturday, France’s prime minister Édouard Philippe announced he would be pushing through the controversial pension reform using constitutional article 49-3 — meaning that it will simply be decreed, without a vote in the National Assembly. Like his predecessor François Hollande, the neoliberal president Emmanuel Macron has thus resorted to pushing through his attacks on the French social model by undemocratic means — simply disregarding the displays of mass opposition. In this article for Mediapart, Ellen Salvi argues that this move shows the government’s weakness — and promises lasting damage to Macron’s legitimacy.
Running His Presidency to the Ground
Emmanuel Macron has just pointed the weapon of 49-3 against his own head. In deploying a mechanism that allows a bill to be passed without being subject to a vote, the government broke off a parliamentary debate that wasn’t going as quickly as it liked. Its intention is to put an end to the catastrophe brought by the pension reform — and get people finally talking about something else. But the decision has not opened up a way forward for the government. Rather, it can expect to spend the next two years watching on impotently as Emmanuel Macron’s presidency runs into the ground.
The formal decision to use 49-3 was taken at a special cabinet meeting on February 29. The meeting was initially meant to be solely devoted to handling coronavirus. But the government exploited the situation to slip 49-3 onto the agenda, after weeks of threatening to use it. The cabinet considered the time was right — and the mood now ripe — to deploy a mechanism that even ministers have no problem terming “the nuclear option.”
Late on Saturday, Prime Minister Édouard Philippe headed to the National Assembly to announce his decision to the only sparsely populated parliament. Evoking the “particularly sad image that the events of recent days have provided of our institutions” — “and I must say that there is no more eloquent illustration of this than what we’re seeing right now,” he added, responding to continual barracking by France Insoumise MP François Ruffin — he said he did not “feel our democracy can afford the luxury of such a spectacle.”
He insisted that this use of 49-3 was not meant to “put an end to the debate” but rather to put an end to “this episode of ‘non-debate,’ to a Parliament deprived of its highest function — making the law.” He further specified that this was not the original bill but “an improved text, greatly enriched thanks to the amendments we have included,” indeed one reflecting “two months of concertation with social partners regarding particularly strenuous jobs, old-age employment, and the transition phase.”
Already on February 25, the prime minister had warned of such a move. As he had put it:
My goal is to allow a debate. If that isn’t possible, then after very many hours of discussion, the Constitution allows the prime minister to use 49-3. To ensure that the debate can progress and does not become sterile. . . . When it is necessary to take one’s responsibilities, I will do so without hesitation, and I will use the whole Constitution and nothing but the Constitution.
Under François Hollande’s administration, Philippe had sat on the opposition benches, as an MP for the right-wing Les Républicains. Back then, when Prime Minister Manuel Valls used 49-3 for both the Macron and El Khomri bills (changes to the Labour Law implemented by the Hollande-Valls government), Philippe voted for the censure motions responding to each use of this mechanism.
These two episodes in 2015 and 2016 left a deep mark on Emmanuel Macron, at that time Hollande’s economy minister, after whom the 2015 Loi Macron (“Macron Law”) was named. In a certain sense, these censure bills even strengthened Macron’s ambitions to bid for the presidency — a necessary piece of revenge.
Indeed, Macron was unable to stomach the fate of his law for “growth, activity and the equality of economic opportunities” being settled in such a manner. Or, indeed, the fact that the hundreds of hours that he spent negotiating every dot and comma of his text with opposition MPs and dissidents within the Socialist government ultimately came to nothing. “There was a form of humiliation in this, which escaped no one,” recalls one former ministerial adviser.
“He had a lot of reservations about the use of 49-3, we all did,” confirms Socialist MP Cécile Untermaier, who presented the Loi Macron alongside Richard Ferrand, today president of the National Assembly. For her,
the situation was very different back then, because the parliamentary debate had taken place. The 49-3 came at the end, because the prime minister feared losing by a few votes. This time around, there was nothing like that: the text wasn’t even amended in the committee stages. The government can just pass its initial version — it’s a lot more inflammatory. Democracy has nothing to gain from these exceptional measures — and democracy will pay most for this failure.
On November 25, 2016, as he ran as presidential candidate for En Marche! — just months after quitting Hollande’s government — Macron told Le Monde that he did not believe for “a single second . . . in reforms by decree.” Today’s pensions bill, in fact, counts twenty-nine such decrees, which, even in the State Council’s own opinion, “removes the overall transparency which is necessary to evaluate the reform’s consequences and thus its constitutionality and conventionality.” But back in 2016, Macron’s comments didn’t stop there: he spoke of “what happened when reforms were made via 49-3, even though it’s a constitutional article: people took it very badly.”
Even when he was confronted with these statements by Mediapart on the eve of the 2017 presidential runoff, Macron sought to qualify his comments: “I criticized the context for the Labour Law . . . a law at the end of the president’s term which was not explained, which was not carried politically — the debate was denied,” he insisted, regretting political officials’ “neurotic relationship” with 49-3.
As Macron’s government today seeks to justify its own use of this mechanism, it will insist in every way it can that it was forced to do this. To this end, it will decry an opposition that did not want any discussion of the reform and prevented parliamentary debate by “obstructing” it with myriad amendments — indeed, some forty-one thousand were tabled.
Under the Fifth Republic, constitutional article 49-3 was often used to build majorities — notably under 1988–1991 Socialist prime minister Michel Rocard, who resorted to this mechanism twenty-eight times. And it has repeatedly served as a convenient tool for beating recalcitrant majorities into shape.
This time, it was deployed against the opposition in the name of “rationalizing” parliamentary work — just as previous prime ministers Pierre Mauroy, Laurent Fabius, Édouard Balladur, and Jean-Pierre Raffarin did in their time.
But if this use of 49-3 puts an end to a first battle, this isn’t the end of the war. As Jean-Luc Mélenchon recently emphasized, speaking to Mediapart, “You’re never quite as clever as you think. [Philippe] can use [this mechanism] only once [for one text per ordinary session]. So, it can’t be used on the loi organique” — the financing bill which is to follow.
“The Beginning of Their Troubles”
In the meantime, the government has been working to push its own preferred talking points. For some days now, MPs and ministers have been hammering away at these arguments, exploiting the slightest pretext to denounce the “spectacle” offered by MPs from France Insoumise and the Communist-led Democratic and Republican Left (GDR). On February 25, Philippe caviled that
a considerable time [was] spent asking if we ought to replace “considering that” with “given that,” “annually” with “each year” or “each year” with “annually.” For me, the time devoted to these exchanges . . . did not seem to address the deeper sense of what is an ambitious reform for all our fellow citizens.
To put an end to this situation, some — including within the majority — thus pleaded for a rapid use of 49-3.
Philippe was well-aware of how explosive deploying 49-3 would be — and of the political trap it entailed. This is especially true in the midst of the premier’s difficult election campaign in Le Havre, where he is bidding to win back the mayor’s office. At first, he wanted to slow things down a bit. However coy he was about it, he dreaded using this unpopular mechanism — synonymous with passing legislation by force. And he wasn’t the only one.
As today’s Economy Minister Bruno Le Maire told Mediapart when the Hollande administration used 49-3 to pass the Loi Macron, using this mechanism “is a show of authority, but only for twenty-four hours. After that it’s just the beginning of your troubles.” Or, as one of his government colleagues put it more recently, “It’s a shame to use this weapon, it doesn’t send the right message. After that, it’ll be more difficult to lower tensions again.”
For his part, the president wants the prime minister to take sole responsibility for 49-3 — and, as far as he can, dodge the inevitable collateral damage. For some weeks, the executive has thus been preparing the ground, acting as if it had no choice. Philippe has constantly repeated that Macron enforced a calendar which demanded that the pensions reform be definitively adopted before the summer.
Hence the need to proceed at a rapid pace — despite the unprecedented mobilization by French society. Despite public opinion’s consistent hostility toward the project. Despite the damning verdict from the State Council itself. And despite a series of events which has served only to reinforce the idea of a government absolutely deaf to the world around it.
Disaster for Macron
Ultimately, 49-3 put the finishing touches to a fiasco. “The mistake came before, long before,” insists a minister who prefers to place the blame on former high commissioner for pensions Jean-Paul Delevoye — and thus to avoid going down together with the sinking raft of the reform.
During the 2017 presidential campaign, the En Marche! team said it wanted to make this vast area of the administration’s work into an “illustration of Macron’s method faced with France’s blockages.” This bill will, indeed, be a fixture in the annals of political history — but as a textbook case of what shouldn’t be repeated. After weeks of improvisation, it led the government to use the favored weapon of those who haven’t managed to persuade the country. As Richard Ferrand wrote in February 2016 at the time of the Loi El-Khomri, the use of 49-3 is another “unpleasant admission.”
Using 49-3 isn’t just a big political risk — it’s an enormous one. Yet never did the executive consider doing otherwise. The ministers Mediapart has interviewed in recent weeks have all offered the same response: “Do you have any other idea?” It’s impossible, under this administration, to take the time to go through the reform, to recognize its errors, to get everyone around the table. Out of a political calculation that defies comprehension, Macron remains convinced that he has no chance of reelection in 2022 if this pension reform doesn’t pass.
But within the majority, some are beginning to think the opposite: “Passing such an important text by force is opening the door to Marine Le Pen,” worries one La République en Marche (LREM) lawmaker, who doesn’t see how the executive can continue chugging along with its reforms after such a rout. “We can’t think that Parliament emerges entirely strengthened from what’s just happened,” laments one of his colleagues. For this LREM MP, “the problem isn’t that the opposition opposes, that’s totally normal. The error comes from the calendar decided by the government: you don’t do the mother of reforms in two weeks.”
At the heart of the government there are ever more people saying this kind of thing. They are worried — an even stronger word could be used — about the center-left electorate. It was a “cornerstone” of Macron’s election victory in 2017, but it has now drifted away from the president. The 49-3 may end up convincing it to stay at home in 2022, if the second-round contest again pits Macron against Le Pen.
Bored of waiting for a (very much hypothetical) “Act II” of this administration, some Macronists are no longer even hiding their desire for change, directly attacking Prime Minister Philippe. He came from the right-wing Les Républicains — and they have never fully accepted his appointment. “We should do everything to avoid 49-3 and ask ourselves how we got here,” the LREM MP Aurélien Taché told RFI listeners on February 22. “Yes, the local elections are important, especially in Le Havre, but we need everyone’s commitment, including that of our conductor, to carry through the pensions reform.”
After an express trip to his home city of Le Havre on Friday evening, Philippe put aside his diary as mayoral candidate to make a rapid return to Paris and his responsibilities as prime minister. Like all his predecessors who have used 49-3 (as in eighty-eight cases since 1958), he will now be subject to a censure motion. Opposition legislators have twenty-four hours to table a motion, which must be signed by fifty-eight MPs. This must then be discussed in the Assembly over the following forty-eight hours.
After the prime minister had finished his speech, the Communist MP André Chassaigne said that his GDR group would “table a censure motion together with the other left-wing groups.” “This goes without saying,” responded France Insoumise leader Jean-Luc Mélenchon, who sees “treacherous goings-on” behind the government’s arguments. The Parti Socialiste’s first secretary Olivier Faure tweeted that his party would propose a censure motion to the opposition parties, as did Les Républicains’ parliamentary leader Damien Abad.
If one of these motions had been adopted, then the government would have had no other choice than to resign. (On Tuesday, these motions were tabled, but failed.) But as for what comes next, that’s a quite different story. And after using 49-3, the future is much more troubling for Macron’s government.