Grand bargain for Spain's institutions: renewals with deadlines and defaults

Spain's Constitutional Court has now worked for ten months with a third of its members past their term. The four magistrates the Senate chose in 2017, the court's president Cándido Conde-Pumpido among them, saw their nine-year mandates expire in December 2025. They stay in their seats until successors arrive. On 1 October Conde-Pumpido asked the parties to agree and simply comply with the Constitution, which sets a nine-year term. The PP holds an absolute majority in the Senate, and the vote needs three-fifths, so the seats need the PP and the PSOE to agree.

This is the problem Miriam González named when she launched Democracia 21 on 10 October: two iron blocs and nothing that favours consensus. Our day-11 piece answered it with general rules that make agreement pay. This one takes the hardest case, the appointments to the bodies that are supposed to check power, and proposes one cross-party deal to settle them for good.

A decade of overdue institutions

The queue has been long for years, and whoever sits in opposition learns the same trick. When the Court of Audit's mandate ran out in July 2021, it joined a list: the Ombudsman post acting since July 2017, the judicial council (CGPJ) expired since December 2018, the third of the Constitutional Court elected by Congress since November 2019, and the leadership of the Data Protection Agency since July 2019. On 20 July 2017 the deputy ombudsman, Francisco Fernández Marugán, took over on an open-ended basis, as the organic law allows, until a new holder was elected. He was still there in October 2021, when the PSOE and the PP agreed a package covering the Constitutional Court, the Court of Audit and the Ombudsman, with Ángel Gabilondo as the new Ombudsman. The CGPJ stayed out of that deal, because the PP wanted to change how it is elected and the PSOE wanted to keep the system. It waited until 25 June 2024, when Félix Bolaños and Esteban González Pons signed its renewal in Brussels in front of Commission Vice-President Věra Jourová. Our day-10 piece tells the rest of that story.

Two things stand out. Every unblocking came as a bundle in which each side got something, which is how Spanish appointments really work. And the fallbacks Spain has tried point the wrong way. In 2018, when Congress could not agree a new board for the public broadcaster RTVE, a decree-law let the government propose a sole provisional administrator, and Rosa María Mateo ran the corporation until a public contest could produce a board: the default handed the choice to the government of the day. Organic Law 4/2021 stripped the expired CGPJ of its main appointment powers, a measure the Constitutional Court upheld in 2023; it squeezed the institution and left the people blocking it untouched. Organic Law 3/2024, for its part, kept the three-fifths rule and added no anti-deadlock mechanism at all.

What Europe has tried

Germany moved first. On 19 December 2024 the Bundestag voted 600 to 69 to write the Federal Constitutional Court's core rules into the Basic Law, including the rule that a judge keeps working until a successor is elected and a substitute election mechanism: if the Bundestag or the Bundesrat cannot reach the two-thirds majority, the right to elect passes to the other body. The supermajority stays, and a blocking minority in one chamber loses its leverage.

Italy shows what a lower bar alone does. Parliament needs two-thirds for its constitutional judges in the first three ballots and three-fifths after that. Silvana Sciarra's term ended on 11 November 2023. According to Pagella Politica, the parties waited for three more terms to end in December 2024 so they could share out four seats at once, and it took 14 ballots before Parliament elected all four on 13 February 2025. The lower majority simply moved the haggling to a later date.

The bargain

Matthew Miller's The Two Percent Solution (2003) proposed a series of problem-solving grand bargains in which each camp gets what it cares about most, whole. We've explained the book and the idea before. Marc Dunkelman's Why Nothing Works supplies the other half: give people a voice in the process, and take away the veto. We've called a check without a clock vetocracy.

Put the two together and the trade writes itself. The PP has spent years demanding a change in how the CGPJ is elected, and the Venice Commission said in October 2025 that letting judges directly elect its judicial members complies with the European standard of peer election. The PSOE, facing a frozen Constitutional Court, wants appointments made on time. One organic law can give each side its thing. Peer election for the twelve judicial members, with the safeguards against association capture we set out on day 10. And a binding calendar for every body the Cortes appoint: the Constitutional Court, the Court of Audit, the Ombudsman, the RTVE board, the judicial council's lay members and the rest.

The calendar works like this. Each renewal opens six months before the term ends, with public hearings. If the competent chamber has not voted by the expiry date, the choice passes to the other chamber, German style, still by three-fifths. If three months later nobody has been chosen, the seat is drawn by lot from a shortlist of candidates an independent panel has already found appointable, the panel we proposed for Spain's watchdogs. The lot is the key piece. Nobody can predict it, so waiting for a better majority after the next election stops paying, and every party prefers to negotiate the names itself. That is the use of sortition as a check on power at its simplest. Every new term counts from the original expiry date, so a delay never lengthens anyone's tenure, and Congress publishes, for every body, how many days each seat is overdue.

Each tradition gets something real here. The left gets what it has always asked of institutions: bodies that protect citizens from whoever governs, staffed on time and never parked at the mercy of a party. The right and the liberal market tradition get Miller's logic of a trade in which both sides win something they value, plus the legal certainty of a known calendar. The design against vetocracy belongs to neither. It keeps every supermajority, so consensus still decides almost every appointment, and it strips the blockade of its hostage value, so the consensus actually arrives.

The four Senate seats on the Constitutional Court would be the first test. Under these rules, they would have passed to Congress last December.