The Government that wasn’t

Nu? Elections?
That was the news from Israel last week as Benjamin Netanyahu failed to form a government after apparently winning April’s national vote.

The new election has been set for September 17.

What happened?
The April 9 elections in Israel seemed to conclude with a close but definitive victory for Bibi Netanyahu and his right-wing allies. It would have been a victory that would have made Netanyahu the longest running prime minister of Israel, exceeding even David Ben-Gurion, the country’s founding father. It would have been a victory that arguably was just one more manufactured step toward Bibi’s hope to stay out of prison — as was the election itself. It is important to note that the April 9 elections were not held because the prime minister’s term had come to its end. No, they were called to give Netanyahu another lease on life, in the very real shadow of being indicted on several criminal charges. (More about that later.)

But the best laid plans…
On the surface, Bibi’s failure to form a government was due to a policy dispute. Netanyahu’s Likud won the largest number of votes, and no other party won more representation — but it could not govern in the 120-seat Knesset by itself. Netanyahu needed partners. President Rivlin gave Bibi the authority, within the limited time frame set by law, to create a coalition that could win the support of a Knesset majority. This, in Israel, is normal.

While the Likud is a secular Zionist party, many of its voters are comfortable with what has become a traditional coalition between the Likud (which had earned 35 seats in this election) and a combination of Jewish ultra-Orthodox religious parties (which together had won 16 seats). Further support could be obtained from that Netanyahu-engineered grouping of extreme right-wing, primarily religious, settler parties, including the successor to Meir Kahane’s banned Kach party (the combination winning five representatives). That put 56 seats in Bibi’s pocket. Netanyahu likely would have won the support of Moshe Kahlon’s right-of-center Kulanu party (four representatives). Indeed, Kahlon, disappointed with his election showing, agreed to join the Likud going forward. That would have given Netanyahu 60 mandates under control.

Close — but still no cigar.
That still left the Likud-led coalition one mandate short of a governing majority. The last few mandates that would tip the scale in favor of Bibi were held by Avigdor Lieberman’s secular, right-wing, Russian immigrant-based party Yisrael Beiteinu (five representatives). Lieberman recognized that he held the power card and conditioned his support on a binding coalition agreement to pass a bill he had proposed years ago, when he was the Defense Minister. The bill would remove any exceptions to IDF service for army-aged ultra-Orthodox boys. The ultra-Orthodox parties refused to agree, and the necessary majority could not be obtained within the legal time limit.

In Israel, this is not normal. It is the first time in Israel’s history that a governing coalition has not been negotiated after a national election. So much for the surface causes. There was an important issue underneath them that was shaping the political dynamics.

Corruption.
It has been public knowledge for some time that charges of corruption and misuse of office have swirled around Netanyahu personally, as well as against members of his administration. Last February, police recommended that charges of bribery, fraud, and breach of trust be brought against Netanyahu. The police provided Attorney General Avichai Mandelblit with evidence of crimes entailing four distinct actions on Bibi’s part.

The first case involves valuable gifts of fine wine, cigars, and jewelry, valued at more than one million shekels, given to Bibi and his family by Arnon Milchan, an Israeli Hollywood producer, and James Packer, an Australian businessman. Netanyahu does not deny receiving the gifts but claims these were presents given to him by well-meaning friends. The police believe that favors were exchanged.

A second case charges that Netanyahu offered to initiate legislation detrimental to a pro-Netanyahu daily, Yisrael Hayom, if the more independent Yediot Achronot would agree to hire pro-Netanyahu reporters. Yisrael Hayom, owned by Sheldon Adelson, and Yediot Achronot, edited by Arnon Moses, are Israel’s two largest daily newspapers. A former Netanyahu aide, Ari Harrow, has agreed to testify as a state witness. He is believed to have been involved in discussions between Netanyahu and Moses. Apparently, some of those discussions were recorded on Harrow’s phone, which the police have seized. Netanyahu has said the discussions were meant to test Moses and that he meant nothing serious.

A third case, and perhaps the most important, revolves around Bezeq, the state-owned telephone company. While no longer a monopoly and now only partially state-owned, Bezeq nonetheless is the dominant player in Israeli telephony. In 2012, Bezeq acquired Walla! Communications, Israel’s leading internet portal. In 2015, it acquired Yes, Israel’s main television provider. In 2013, Natanyahu appointed Avi Berger as director of the communications ministry. Berger quickly initiated a number of important reforms to increase internet competition and lower consumer internet costs. Those reforms were contrary to Bezeq’s interests. In May 2015, Berger fined Bezeq 11 million shekels (about $2.9 million) for hindering implementation of the reforms. A week later, Natanyahu fired Berger and took control of the communications ministry. This case contends that Bibi halted Berger’s reforms and promoted other actions in Bezeq’s interest, including the Bezeq — Yes merger. It is estimated that as a result of Bibi’s actions, Bezeq’s value grew by an estimated $500 million. The indictment papers claim that there is a direct link between Bibi’s support of Bezeq and favorable news coverage of his on Bezeq subsidiaries, particularly Walla! News.

A fourth case involves charges of bribery leveled at Netanyahu administration officials connected with the decision to purchase naval ships from a German company.

The police recommended that Netanyahu be indicted as early as December 2018.

Indeed, it was the threat of indictment that compelled Netanyahu to call for early elections in April rather than waiting until the autumn, when Knesset terms would have expired. Netanyahu’s goal was to win the elections and assert a popular mandate to protect himself. He hoped that in the course of coalition negotiations he could obtain an agreement to pass a new law shielding a sitting prime minister from prosecution. And to protect the Supreme Court from declaring this new law to be illegal, the proposal would include a section protecting his immunity from Court review. Clearly these provisions not only would pervert the course of justice in the current cases but also would invite corruption in the future.

In response to the police recommendations for prosecution, Likud sought Supreme Court intervention to delay the pending indictments. The court denied the requests on February 28, 2019. That same day, Mandelblit officially accepted the recommendations of the police and the State Prosecutor that Netanyahu be indicted. The indictment would go into effect following a procedural hearing.

Then Mandelblit aroused controversy by slow-walking the procedure for unsealing the indictments, delaying the pre-indictment hearing for up to three months. This was defended on the basis that Mandelblit did not want leaks to impact the April election. Because an indictment can’t be unsealed before the hearing, Mandelblit’s decision gave Netanyahu the necessary wiggle room to pursue his plan to evade prosecution.

Everything seemed to work to Bibi’s benefit. His Likud list won a plurality of votes, and the right-wing and ultra-Orthodox parties won a combination of seats that in theory could constitute a majority in the Knesset. As negotiations dragged on, however, it became apparent there was a problem. Lieberman would not back down. He would not join the coalition unless the bill to draft Orthodox boys into the army became law. Nobody, including Bibi, really knew what Lieberman — once a close associate of Netanyahu’s but now a bitter rival — really was up to. Was he bluffing, building maximal leverage to enter Netanyahu’s next government from a position of increased power? Or, either because of principled opposition to the draft law or animosity toward the prime minister (or both), was he truly willing to torpedo the formation of a new right-wing government?

Not ready to concede, Bibi went looking for other partners he could buy. In a Chad-Gad-Ya chain of events, the prime minister of Israel turned the halls of the Knesset building into a Middle Eastern bargain basement bazaar, trading ministries and government leadership positions and policy promises just to win over the last missing mandate.

He turned to the Labor party and offered it various ministries — including finance, which Likud also had promised to Moshe Kahlon. Bibi even promised that he would abandon his efforts to pass a shield law. A Labor Knesset member, Shelly Yachimovich was offered the justice ministry; a senior Labor MK, Amir Peretz, reportedly was promised the presidency at the end of sitting president Reuven Rivlin’s term. Simultaneously, Netanyahu’s negotiators were trying to woo various members of Benny Gantz’s Blue and White (in Hebrew, Kachol-Lavan) party. Here, the promises included no fewer than five ministries and various ambassadorships. Blue and White representative Pnina Tamano-Shavta, the first Ethiopian woman to sit in the Knesset, was promised a renewed effort to bring the remaining Jews from Ethiopia to Israel if she would join the coalition. Haaretz columnist Bradley Burston wrote that “In recent days, a desperate Netanyahu sent word to newly elected MK Gadi Yevarkan that if the Ethiopian-born lawmaker agreed to desert his centrist opposition Kachol-Lavan party and become the deciding 61st vote to ratify a new Bibi-led government, the prime minister would name him Immigrant Absorption Minister. The message to Yevarkan was clear: Agree to the deal, or the thousands of family members — some of whom have waited decades in Ethiopia for rescue to Israel — will remain as hostages to a government callous as concrete to their plight.” Sure that his far right-wing flank would “stick with him” Bibi even offered the Druze community, in an appeal to Gadeer Mreeh, a Druze MK also from Kachol Lavan, to change the controversial nation-state law that Netanyahu had championed and only recently guided to passage.

Diplomacy and stewardship of the government had been reduced to the trading of baseball cards in the playground. But no one else was buying what Bibi was selling.

It was May 29, and the clock was running out. Netanyahu had only three hours left if he was to form his new government, and none of his gambits were working. When the clock reached midnight, the law of the land would empower President Rivlin to assign another leader, most likely former IDF Chief of Staff Benny Gantz, the leader of the centrist Kachol-Lavan list, a chance to form a government. If Gantz would succeed, after 10 long years Benjamin Netanyahu would no longer be prime minister and no longer would be in any position to shield himself from the long arm of the law. He finally would be indicted and tried.

There was only one option left, so the right-wing and religious parties combined to dissolve the 21st Knesset, after only a month and a half, and to make a snap election necessary.

In another controversial decision, Mandelblit acceded to a request by Bibi’s legal team to defer the pre-indictment hearing until October, giving Netanyahu a potential second bite at the immunity apple. Whether he gets that bite or not largely will be decided by the Israeli electorate. A number of interesting questions now arise — questions that won’t have answers until after the votes in the new election are counted. But those questions form the challenges for Likud and Bibi.

What will happen to the sponsors and voters for slates that failed to breach the 3.25 percent vote threshold? Israelis do not vote for candidates in Knesset elections. They vote for party-sponsored lists. The number of representatives selected from each list is determined directly by the percentage of the total vote each list receives. Election rules establish that a list must receive at least 3.25 percent of the total vote. Lists that fail to reach that threshold are denied representation; the votes cast for those lists are discarded and the Knesset seats are reallocated. A large number of lists running in the last election failed to reach that threshold, but three came close. They controlled a significant number of votes, votes that if directed elsewhere could change the results of the future election drastically.

The largest of these lists, which garnered about 139,000 votes, just narrowly missing the threshold, was a right-wing party led by two ambitious politicians, Naftali Bennet and Ayelet Shaked. Will these politicians run their list a second time or will they try to merge with another group? Bennet and Shaked sought to appeal to a modern Orthodox and secular right-wing constituency — a similar voter demographic to Likud’s supporters. Those voters might favor Lieberman and his views about military service. But they also might want to support a right-wing government generally. Will Netanyahu court their favor during the four months until the next elections? What can he offer them to secure their votes and strengthen his ability to stay in power?

The second party that failed to earn even one seat in the Knesset was a right-wing libertarian party with a program of West Bank annexation and recreational drug decriminalization. Will it run again? If not, which lists will its 118,000 voters support?

The third list is a centrist party led by Orly Levy, a daughter of the late Likud politician David Levy. Will its roughly 75,000 voters support the Likud or the centrist Kachol-Lavan list? Will Netanyahu try to create a marriage of convenience with either or both of these parties as well?

Will Arab voter turnout change? The April election featured a low turnout driven by disaffection, disunity among Israeli Arab politicians, and a blatant campaign of Arab voter intimidation. But there was an active debate about electoral participation among Arab Israelis. If Arab voter turnout is materially higher, election results could be affected significantly.

Will secular right-wing voters support or reject Avigdor Lieberman? Bibi has blasted Lieberman as a “leftist” for his refusal to support the formation of a Netanyahu-led government. Anyone who knows anything about Lieberman will find this charge laughable. Lieberman supported the dissolution of the Knesset rather than permit President Rivlin from passing the authority to form a government to another party, and he is on record as saying he will not support the formation of a government under Gantz after September’s election. But he has not ruled out joining in a coalition with Gantz and the Kachol-Lavan party at any time. Lieberman likely is looking to a post-Netanyahu future, and he sees himself as playing a prominent role in that future. In any case, early indications are Lieberman’s constituency supports his stand. Early polls show his list gaining, not losing representation.

Finally, how will the votes of the electorate reflect the corruption charges, the efforts to manipulate press coverage, and the attempt to evade accountability through the proposed shield law unchecked by Court review? More than Bibi’s future hangs in the balance.

Recently, we have witnessed a broad assault on democracy and the rule of law, an epidemic now raging in Western democracies. Like the measles, this epidemic was thought to be contained, but it requires the inoculation of transparency and civic involvement in every generation. Let us hope that Israel’s voting public is sufficiently inoculated to thwart the potential of an immunity bill that would threaten the rule of law and offer new playgrounds for the corrupt.