Party switch

Senator Arlen Specter apparently is the newest Democratic member of the US Senate.

As The Fix notes:

Because of the shrinking Republican vote in the state [of Pennsylvania], Specter was seen as a dead man walking politically in the primary with polling showing him trailing [Republican primary challenger Pat] Toomey by ten or more points. The bar for Specter to run as an independent was also extremely high due to the rules governing such a third party candidacy.

That left a Democratic candidacy as Specter’s best option if he wanted to remain in the Senate beyond 2010.

And Specter himself justified his decision by saying “Since my election in 1980, as part of the Reagan Big Tent, the Republican Party has moved far to the right. Last year, more than 200,000 Republicans in Pennsylvania changed their registration to become Democrats. I now find my political philosophy more in line with Democrats than Republicans.”

Now, one might say that was a convenient “finding.”

But should we see this as “agency loss” (he was elected as a Republican, after all) or as “agent responsiveness” (his principal–the electorate of Pennsylvania–has shifted its preferences in the last five years)?

Whatever our answer may be in the case of the current US Senate and Pennsylvania, would it vary if the electoral system or constitutional context were different?

25 thoughts on “Party switch

  1. There was a constitutional convention in Australia that Senate vacancies be filled by a member of the party for which the outgoing senator was elected. That convention broke down spectacularly in 1974 and 1975 when state legislatures replaced Labor senators with non-Labor appointees. That gave the opposition sufficient numbers to refuse to pass the budget and led directly to the constitutional crisis in which the Whitlam government was dismissed by the governor-general.

    In 1977 the people amended the constitution to provide that a senator must come from the party of the outgoing senator. However we now have the oddity that where a senator leaves their party they retain the seat, but if they then resign they are replaced by a nominee of the party for which they were elected, not their new party. The change was seen as desirable because senate vacancies are filled by state legislatures (or temporarily by state governments) and not by popular election. Indeed in 1975 the opposition was accused of taking advantage of the death of a Labor senator.

    In a weird little footnote, a friend of mine was readying himself to persuade the Queensland government that he was a member of the Labor party but so disgusted by the Whitlam government he was prepared to vote against the budget. The theory was that he would get himself sworn in and then inform a stunned nation he would pass the budget. Sadly the haircut took longer than we expected and the state government found a better (that is, worse) candidate.

  2. What I don’t understand is why Specter is even bothering. He is 79 and has been Senator for over 30 years. He really can’t serve out his turn and then find something else for him to do in the years left to him?

    I’m not sure if this can be linked to a constitutional issue. The context is that the government needs 60 votes out of 100 to pass legislation, under the current way politics is done in DC, and when governments get to that situation the have the means to persuade one of the opposition legislators to switch. But it is ridiculous that 60 votes is needed in the first place. You don’t see these theatrics in the House, which is more in line with other legislatures across the world in how it is elected and how it operates.

    There have been a fair number of other party switches in the past in Congress, and its only the magical 60 vote hurdle that is making people pay so much attention to this one.

  3. It is not clear whether the Australian Constitution (sec 15, as amended 1977) covers merged parties. The two conservative parties in Queensland recently merged into a single “Liberal National Party” and the State Labor govt could get (I estimate) at least 2 High Court votes for an argument that the State Parliament has a completely free choice in replacing any of the sitting Liberal or National Senators from Qld since those parties have “ceased to exist”. IOW, the LNP machine no longer has the Constl power to unseat any Labor-appointed replacement Senator by revoking his/her party membership.

    The convention that party-switchers should resign and fight a by-election, unless the general election was close, made sense when it originated in the UK Commons. It makes less sense transplanted to the US and Australian Senates, where by-elections are rare or non-existent and the defector will be replaced by some combination of the State govt and the original party.

  4. I should add that the Qld LNP is deemed to be the State division of the federal Liberal Party, for Cwth Electoral Act purposes. But the Act’s party-registration rules don’t control the meaning of the amended Const Sec 15 (which, oddly, predates any statutory mention of political parties by six years).

  5. Tom

    You are probably right about the LNP and the High Court would almost certainly say the stream cannot rise above its source and the electoral act cannot control the constitution. On the other hand, it would be exceedingly foolish politics for the Bligh government to emulate the unlamented Bjelke-Petersen. Writing floor-crossing rules is a drafting horror show, as South Africa and New Zealand have both discovered recently.

    As far as resigning if you switch parties, it can be worked into STV if you use the circuits idea submitted to the BC Citizens Assembly. You divide each STV electoral district into a sub-district, a circuit, for each representative and then hold by-elections by circuit.

    Opinion can shift between elections and by-elections do strengthen the agency relationship between electorate and representative.

  6. It seems that the subdistrict (circuits) idea for by-elections under STV undermines one of the main advantages of STV over SSDs: that constituencies can span the smaller geographic confines of the latter, depending on where the voters are who make up a candidate’s quota.

  7. The unit of election is still the large district The circuit comes into play only when the district representatives have been identified. STV gives you an order of election. The first representative elected gets assigned to a circuit and so on until all the circuits have representatives.

    Vacancies can then be filled by a by-election that is restricted to the circuit.

    Tasmania and the ACT use a countback system where the ballots which elected the former MP are recounted to determine a new MP. That’s also a good system but does have the slight disadvantage that it cannot register any change of opinion that has occurred since the election.

    Ireland uses a straight by-election. That is actually somewhat undemocratic. If you voted for the vacated deputy your general election vote disappears and you get only 1 vote in the by-election. If you did not vote for the deputy, your general election vote remains in force and you get an extra vote in the by-election.

    The Australian senate uses an indirect election by the state legislature, or a joint sitting of the federal parliament for a territory senator, with the rule that the elected candidate must be from the same party. The state STV legislative councils have elections by a joint sitting of the state legislatures, also with the same party rule.

    I’d guess some representatives would think of themselves as only representing their circuit, although that would be an electoral disadvantage to them. But that is not the same as thinking that the circuits idea would vitiate the proportional elements of STV in multi-member districts. I think Enid Lakeman advocated something like the circuit plan, but I would not swear to it and cannot cite a reference.

    I find the circuit idea attractive because of the change of opinion issue. On second thought I cannot see why it could not be used in MMP and list systems as well, although STV would, as always, be a more effective and elegant solution.

  8. I dare not try and insert this into an already lengthy comment. The same party rules in Australia generally provide that you have to be a member of the same party not only when elected, but when you take your seat. This gives the parties a chance to defend themselves from ‘rat’ candidates who hold membership but are prepared to vote against the party as happened in 1975,

    Tom was talking about this in his post on whether the LNP could use the when seated rule to defend their hold on Queensland senate seats from the inroads of the Bligh government.

    A bizarre footnote. Premier of Queensland Anna Bligh is actually descended from that William Bligh. After the Bounty mutiny Bligh was despatched to New South Wales (which then included Queensland) as the third governor. A mutiny ensued and he was forced from the governorship by the military. Anna is thus the second Bligh to govern the state, although she shows little sign of emulating her ancestor’s sad end in that role.

  9. As an STV shill, I could live with circuits if the reps each had some choice in the matter. Eg, you divide a 5-seat constituency into 10 circuits and ask each rep to pick two, in order of election. Then at least a minor-party rep could select portions of the electorate where his/her supporters were least dispersed.

    Alternatively (if the legislature’s term is very long, eg 5 years), a rule that a voter who votes in a special/by-election for one seat can’t later vote in a by-election for a different seat, for the remainder of that term. A slight inroad upon the secret ballot although it doesn’t require voters to publicly say whom they voted for.

    It may be harder for larger parties to coordinate their supporters: if, eg, Labour has 2 MPs out of 5, it needs to tell half its voters “don’t vote in the by-election this time – we might need you if the other MP goes under a bus!” Analogous to the problem with SNTV.

    Maybe then revise to “Your vote is reduced in value each time you vote in a by-election – 1.0 vote the first time, 0.5 the second, 0.33 the third, and so on.” Minor-party supporters might sit out the first one or two by-elections, then wait to come into their own when (or if) there’s a third or fourth vacancy. But then that’s speculative.

    I read one student union constn where (a) a large number of reps (double figures) were chosen at large by STV, (b) a vacating rep could appoint their own successor, but (c) once there were 5 such appointees, a bulk by-election is held.

    So on balance I’d stay with countbacks, and have staggered national/ provincial/ local elections in successive years to measure swings in voting support.

    Ironic that, despite all the anti-PR claims that “PR has no democratic way of filling vacancies”, a lot of US legislative bodies have single-seat elections but not special/ by-elections – using appointment by the party or the governor instead.

  10. I’d assumed (West’s submission is unclear) that a representative would be assigned to the circuit where they performed best in the election and where no other representative had already been assigned.

  11. Maybe reps should get to choose circuits in reverse order of reaching quota, on the basis that minor parties who straggle in for the last seat(s) are more likely to need all the help they can get in defending their seat at a by-election.

    Note that in Ireland, sometimes a party that wins (say) 3 seats out of 5 at a general election won’t run a candidate in a by-election to replace an opposing party’s MP: the prospect of holding 4 seats out of 5 for the remaining months of the term is outweighed by the reluctance of the sitting MPs to help anoint a rival sitting Member who might cost one of them his/her own seat at the next general election, when political gravity will bring them back to 3 seats.

  12. I’m wary of building an electoral system on favouring any particular group. I’d much prefer an objective standard that the electoral commissioner would apply.

  13. The link earlier from Julian West’s STV-plus-circuits proposal is for the presentation slides he gave to the Citizen’s Assembly. The text of his (second) submission, which should be read alongside the slides, is here. Page 13 of that submission gives us a suggested method for allocating circuits.

  14. Arlen Specter should not be allowed to switch from a Republican to a Democrat without not resigning first and run as a Democrat in a special-election.

    I can understand Jim Jeffords going from Republican to Independent (which is no party) and that could be okay, but then he retired after that and so the point is moot there for his case.

    Arlen should have just became an independent allied with the Democrats or ran as one if he lost the Republican primary in Pennsylvania unless that state doesn’t allow it like what Joe Lieberman did when he lost the Democratic primary to become an independent, but at least the voter approved of Lieberman’s party change status.

    I understand a news article in the LA Times might say that passing an ordinary law to ban party switching is unconstitutional, then maybe the constitution should be amended to ban party switching until the next election.

  15. Given that the Senate and House are free to set their own rules of procedure, I would think that they could ban party switching, but that a law could not. (Caveat: I am very far from a constitutional lawyer.) I suppose in the Senate it would take unanimous consent to do so, or at least 2/3. (I think rules changes require at least 2/3, but I am uncertain of that. Certainly not just 51 votes or even 60.)*

    However, on normative grounds, I would turn things around from the previous comment: Jeffords was never again accountable to his electorate (and would have been free from a primary challenge had he run again as an independent), but Specter will be. If either his new party electorate or the general electorate does not like his switch, it will be free to punish him for it.

    In a system of individual accountability (single-seat districts and no parliamentary confidence concerns), it would seem very odd to me to have bans on party switching. Of course, I would prefer more collective accountability, and then I might make a different argument.

    In other words, on my list of desired constitutional reforms, anything to do with party switching would be pretty far down the list.

    _______
    * Regardless of the majority it would require, it’s not going to happen.

  16. > “I am very far from a constitutional lawyer”

    My amateur and foreign reading is that either House could, by 2/3 resolution, make an ad-hoc decision unseating one of its own members based on the facts of that particular case. But both Houses can’t pass an Act in general terms directing the courts to declare a member’s seat vacant every time a member does some defined action, eg swapping parties.

    IOW, a decision by today’s Senate to unseat Specter (or Burris, or Adam Clayton Powell) for X ground cannot bind a future Senate to unseat a different Senator, even if the latter also falls within the same rationale.

    (I now sit back, count to 10, and wait for Alan to advise that I have completely overlooked a US Constitutional Amendment ratified in 1998.)

  17. One approach would be to throw party switchers off of their committees.

    Committee seats are allocated according to parties, even if the members of the legislature are nominally elected by individuals. So Specter was elected to the Senate from Pennsylvania in 2004 as Specter and it should make no difference which political organizations he later affiliates with. But the Republican caucus is given so many committee slots, and Specter is holding committee slots originally allocated for the Republicans. So maybe he should be thrown off these committees so the slot can be given to a Republican by the Republican floor leader.

  18. Just to be clear, at no. 15 I was not referring to expelling a member from the chamber for attempting to switch parties, but to requiring a member to remain in the party for which he or she was elected. I would imagine that either chamber could do that (without law). I do not think either chamber would have the requisite majority to do so (because, at least in US experience, it is only the minority that has to worry about losing members). Nor would I be likely to argue in favor of such a measure.

    Regarding committees, of course Specter loses his rights to holding the positions he had as a Republican. But he gets something better, which is whatever positions he has negotiated with his new party–the majority party.

  19. @Tom

    You have entirely forgotten the amendment ratified in 1998 which banned party switching, abolished the unitary theory of the executive, mandated STV for all federal elections and STVPR for the Senate and House, added 100 new senators distributed among the states in proportion to population, increased the size of the House to the Shugart number, empowered Congress to overturn subordinate legislation, banned signing statements, subjected the Executive to the peremptory rules of international law, created an independent electoral commissioner, human rights commissioner, auditor-general and ombudsman, limited Supreme Court justices to a single 18 year term, required a 2/3 vote to confirm a Supreme Court member, and convened a citizens assembly to write a new constitution.

  20. > “I was not referring to expelling a member from the chamber for attempting to switch parties, but to requiring a member to remain in the party for which he or she was elected”

    How would one enforce that without unseating a recalcitrant? [*] Deem them to vote that way anyway like (IIRC) pledged delegates at party conventions?

    Australia’s second-most-famous expat superstar Jackman (ie, Simon) proposed this for the Senate a decade ago, after Mal Colston abruptly defected from Labor to Independent. As noted, Oz already has a tiny echo of this in that a party can unseat a defector if, and only if, (a) s/he’s a replacement for one of its original Senators (b) before s/he takes h/her seat. SJ was proposing extending this to all party-endorsed Senators – even the elected ones – for their whole term.

    I recollect that at one point Sri Lanka allowed a party to unseat an MP mid-term by re-ordering its candidate list. Given that upwards of 60 of our 76 solons are elected due to their high ranking on the party ticket, there might be a slim case for a modified Jackman system in which a party can lodge a revised Senate ticket mid-term and trigger a re-count of votes. OTOH, this might enable it to unseat another party’s Senator – eg Labor quickly felt buyer’s remorse for preferencing Family First in 2004, akin to what I imagine the GOP machine is now feeling for backing Specter against Toomey in the last PA primary.

    [*] “recalcitrant” was how then PM Paul Keating described his Malaysian counterpart in relation to a 1993 conference. In Australian politics it has acquired a smirky resonance akin to “it depends what the meaning of ‘is’ is” in US parlance.

  21. To clarify, with my committee idea at the beginning of the term of Congress the Majority Leader would be able to fill so many committee positions, and the minority leader would be able to fill so many committee positions. These numbers would remain fixed throughout the session, so if a Senator switched parties, the leader of his former party could remove him from his committee positions and replace him with someone more loyal. But the gaining party leader could not reappoint the party switcher to a committee without persuading someone to step aside, since the committee slots for that party will already have been filled.

    This requirement would be tough on members entering the chamber through by-elections or appointments replacing legislators from the other party, but being freshmen it would be tolerable for them to wait until the next session. It would give party switchers pause.

    In parliamentary systems, where committees have more of a watchdog role and should be somewhat independent of the party leaders, this wouldn’t work. But there is no real way to prevent an opposition member from switching and accepting an offerred government job, except a political culture that looks down on bribes of this sort.

  22. But there is no real way to prevent an opposition member from switching and accepting an offerred government job, except a political culture that looks down on bribes of this sort.

    That’s a somewhat separate issue from party switching and has been a common target for constitution-makers since the seventeenth century. In Britain a series of Place Acts placed increasingly strict limits on what offices could be accepted without leave of the house.

    The Place Act tradition is strongly reflected in the US and later constitutions. The Australian constitution applies those rules to anyone who ‘takes or agrees to take’ an office of profit. Senator Judd for instance, would have unseated himself as soon as he agreed to take the office of commerce secretary if the Australian rules had applied.

  23. Except that Australia excepts Ministers who “administer Depts” of the exec govt. True, each Dept also has a Secretary, so the Minister is not the exact equivalent of the US Secretary in all respects.

  24. The original place legislation, actually a resolution of the House of Commons in 1690, barred any member who accepted office without leave of the house. In time the leave of the house exception became a standing ministerial office exception and founded the doctrine of responsible government. As that doctrine did not really mature until after the US constitution was written the Philadelphia convention left out the exception.

    The ‘agrees to take’ rule became important in Australia in 1974 when the Whitlam government sought a marginal advantage in a half-senate election by offering an oppositions senator the Dublin ambassadorship. The timing of the senator’s resignation, or of his agreement to take, became important. The outgoing senator was waylaid by the opposition and borne off to a feast of seafood and beer to delay his resignation as long possible, an event happily named the Night of the Long Prawns.

  25. Ed, isn’t that what’s happened here? In the Senate (unlike the House) the distribution of committee slots to party is negotiated at the start of each session and requires a 2/3 vote (I believe) to endorse. So it can’t be changed to accommodate a member’s switch to the majority party without the minority party’s consent. The Republican Party has already replaced Specter on the Judiciary Committee (and others). I have not looked into what slots the Democrats have given him, but any positions he gets do indeed come at the expense of existing members. So some get bumped, on account of lower seniority (in the chamber, not obviously the party).

    I am not sure why committees in parliamentary systems “should be somewhat independent of party leaders,” given that it is party leaders–across all systems that I know of–who decide who gets the seats allocated to the party.

    Regarding Tom’s question of enforcement against party switching short of expulsion, I do not know what the rules are elsewhere. I know India has such rules, but how they work is not something I have looked in to. Also, Brazil recently banned switching. A colleague tells me that the result has been (rather predictably) a decline in party cohesion, as members are forced to stay in a party that may not suit their (or their voters’) preferences.

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