Congressional seat for presidential runner-up

A package of political reforms is wending its way through the Colombian congress (yes, again). Among the provisions is one that would grant an automatic seat in the Senate to the runner-up in the presidential election.

I am aware of one other country that has (had?) such a provision: Nicaragua under its 1987 constitution. Are there others that readers are aware of?

The appeal of this sort of measure might stem from “parliamentary envy”: In parliamentary systems, it is almost guaranteed that the prime ministerial candidates of the main losing parties (as well as the leaders of other parties) will have seats in the legislature. On the other hand, what if a defeated party replaces its leader, as is actually quite common in parliamentary systems?* The new leader typically also has a seat in parliament, but under the “defeated presidential candidate” provision, a change in leadership would not change who represents the party as its “opposition leader”. This seems less than helpful to establishing “opposition guarantees” (the name of the constitutional amendment bill in Colombia).

Basically, it seems to me that members of an elected legislative body should have to win seats themselves (via whatever candidate-selection processes and electoral system apply to the body), rather than be given one via the outcome of the executive election. That is, the measure strikes me as a poor substitute for strengthening parties such that the opposition to the president has a platform in the legislature. Of course, Colombia has tried various such measures since its major constitutional process of 1991 (and earlier). And they keep coming up short.

The Colombian bill goes one step farther: the running mate of the runner-up would get a seat in the House of Representatives. Because, after all, there are few things more valuable to national discourse than defeated vice-presidential candidates.

* Very recent example: the leaders of the Labour and Liberal Democratic parties resigned their positions (though will remain MPs) immediately after the British election.

40 thoughts on “Congressional seat for presidential runner-up

  1. In proportional representation systems the party leader is almost always the ‘head of list’ and major parties will elect their head of list. It is in theory possible, under STV and open list, for someone other than the head of list to be elected first, but I know of no cases. Parry leaders then, tend to have a fairly automatic route to a legislative seat and that is not illegitimate under proportional representation.

    Even in plurality systems, it is quite rare for the party leader to come from a marginal seat, and it is not uncommon for a party to move its leader to a safer seat in the very rare cases where they do not already hold a safe seat.

    If parliamentary systems can legitimately have legislators who are are appointed somewhat automatically I really do not see why presidential stytems should not have similar arrangements.

    I see no real problem for a presidential system to have a fairly automatic seat for the runner-up. (Uprunner? After all we never end words with prepositions). You would need a casual vacancy arrangement, but that only needs to be that the automatic seat always goes to the same party on the pattern of casual fancies in the Australian senate. How a party designated its leader would be an internal matter.

    I accept opposition leaders are not a regular feature of presidential systems, but that does not necessarily make them inherently a bad idea. We’ve often talked on this blog about the need to separate the roles of head of state and head of government in presidential systems in order to reduce the symbolic powers of the head of government. Having an opposition leader could be one way to achieve that.

    • While some casual vacancy appointments to the Australian senate have been somewhat fanciful, vacancies is what i meant.

    • Sure, but the problem is at least as bad as that for the party-leader/executive (about which I’ve (co-)written a book): the person elected via the runner-up provision ceases to be an agent of the party once elected. He or she has the seat by right of the outcome of the presidential race, and may not remain head of the party. Plus, the ticket that ran second in the presidential race might not even have the most seats (or any) in congress.

      I can’t say that I see the provision as inherently bad. I just don’t see it as solving the problems it is meant to solve which is stated to be “rights of the opposition”.

      You are correct that in a list system, the presidential candidate could be the head of the list. I am not sure how often that is the case, and as Mike notes in this thread, there may even be rules to prevent or discourage leaders from running for both. (I know of one sure case where there are not such rules: Peru, where Alberto Fujimori was running for president mainly to attract attention of the senate list he had created.)

      • There could be a case for a procedure of removal and replacement by the party, but it would have to be carefully designed.

  2. Maybe the goal here is to induce better presidential candidates? That is, if a constitution also has a provision that sitting legislators have to give up their seats to run for executive office, this rule might produce higher-quality challengers by eliminating the tradeoff.
    I know that some constitutions allow for candidates to remain in legislative seats (or return there should they lose), but I don’t know what the rule is in Colombia.

    As for high-quality non-legislators, they too might be more likely to contest the presidency (or vice-presidency) if there is an attractive consolation prize.

    This might also be a way to strengthen links between parties and executive candidates – to reduce the chance that “outsiders” with weak or links to parties will win party nominations.

    Just guesses.

    • Plausible, but I’m skeptical that it will work out that way. But good that someone is trying it (I mean in a more democratic context than Nicaragua); we need more political reforms for the good of science!

  3. It does seem concerning that presidential candidates would be made senators simply by virtue of coming second. Perhaps a threshold would help, to ensure that only popular presidential candidates win Senate seats and to heal some of the wounds of a divisive election. For example, you could say that a presidential candidate would have to win 30% of the first round vote, make it to the second round, and win 45% of the vote in the second round.

  4. Nicaragua gives a National Assembly seat to the former president and the most recent runner-up presidential candidate (ie, the loser of the last election and the winner of the one before that):
    I agree with Alan that a PR system — especially closed lists but also STV and other list systems — would make it easier to get runner-up presidential candidates in the legislature, assuming they did not have to resign from the legislature to run for President. (That’s the rule for Brisbane City Council and Lord Mayor: by contrast, in Tasmania a candidate for mayor has to win a Council seat before, or at, the mayoral election or else he or she is eliminated).
    On the other hand, if the constitution required a candidate for President to resign from the legislature first, a PR system could make it harder for them to get back in if there are no by-elections, ie if vacancies are filled by the next candidate on the list, or by a countback of the vacating legislator’s preferences.
    Having said that, even when a PR system does not allow by-elections there is usually some fallback method — typically party nomination — if there are no available candidates left from the original election. It seems rare to require that a seat must remain vacant. And in some cases (Sri Lanka and South Africa, from memory) the party machine can re-order the list and even add new candidates between elections.
    In a parliamentary system, one would assume that most parties would adopt some rule that the party’s elected leader takes priority over any other prospective candidate in seeking the party’s endorsement for a vacant seat: the party doesn’t want its leader to remain outside the legislature for long (eg, Campbell Newman in 2012, Queensland but contrast John Tory in Ontario). Of course, like Peter Beattie, a high-profile star candidate may elbow aside a local preselectée [*] with the party’s blessing only to lose the actual election.
    [* I don’t usually comment on people’s surnames but was amused that the Labor candidate who was deselected to make room for Beattie in 20013 was “Hardman”].
    In single-member systems, it seems rare for a former president, or losing presidential candidate, to be interested in seeking a legislative seat. Rare examples I can think of are Giscard D’Estaing, John Quincy Adams, John Tyler (admittedly in the Confederate rather than the US Congress). Moving down to the Vice-Presidency, Hubert Humphrey successfully, and Walter Mondale unsuccessfully, sought to return to the Senate: must be a Minnesota thing. Moving from presidents to Governors-General, Ed Schreyer (Canada, 1979-1984) unsuccessfully ran for the Commons again in 2006. Those are the only examples I can think of, but there may be more.
    From memory, a lot of student unions in Australian universities give a seat on the student council to the two or three highest runner-up presidential candidates.
    I’m not sure what the rules were if one of these ex officio members declines the seat, or simply doesn’t turn up — ie, whether they can be replaced, or the seat just sits vacant for the rest of the term. But then student union Cons & Regs are not always world’s best practice in legislative drafting.
    UQ Union has, or used to have, an ex officio seat for the “immediate past president.” One year the IPP went overseas to take up a scholarship at Oxford. Debate ensued over whether the past president before that should be offered the seat, or the immediate past General Vice-President, or just lie fallow.
    UQU Council at the time had an absolute quorum of 12 Councillors out of around 60, but if an organisation sets its quorum as a fraction or percentage of the membership, I’d strongly urge this be defined to exclude any ex officio members.
    Another way to draft such a provision would be to frame it as a question of priority claims to one or more seats, like the ranking of candidates on a party list. Eg:
    1. A candidate for one of the top two or three executive offices at the last general election has a stronger claim than a candidate from an earlier general election.
    2. Subject to (1), a candidate for President trumps a candidate for Vice-President, who in turn trumps a candidate for Secretary.
    3. Subject to (1) and (2), a candidate who polled more votes before being eliminated (note that this covers FPTP, preferential and runoff systems) takes priority over a candidate who polled fewer votes.
    Then, if there are (say) three seats set aside in the legislative body for past executive officers or defeated executive candidates, and more than three qualified persons turn up and sign the roll at a particular council meeting, only the three highest-ranked of them get to vote.

    • Andrew Johnson was elected to the senate in 1874. We could also note LBJ and Lloyd Bentsen who ran simultaneously for the senate and the vice-presidency.

      • One of the advantages of running a US Senator for President or Veep… there’s a 66% chance they will still be in Congress even if the ticket goes down to defeat (eg, Joe Liebermann).
        What I said above about student union councils may have actually been a recollection about student union electoral tribunals. Often the runner-up second (and sometimes third) highest presidential candidate gets to nominate a member.
        As for MSS’s final point… actually, there’s probably as good a chance that the losing ticket’s Vice-Presidential candidate may remain a future player in politics, as the presidential candidate (eg Mondale) albeit perhaps with some time lag (eg Dole) or other, uh, complicating factors (Edwards).
        Humphrey and Mondale were successful Vice-Presidential candidates but unsuccessful presidential candidates so I score ’em as half each.
        Former US Presidents and Veeps (did I count Calhoun?) returning to the (or a) Congress seems to have been more common in the 19th than the 20th century. We could chalk this up to presidential systems becoming less “parliamentary” except that parliamentary systems seem to be doing this too. Prime Ministers in the UK, Canada, Australia and NZ seem to quit not just their party leadership but also their parliamentary seats if their party loses government. The idea of a defeated Prime Minister staying on as an MP after losing government (Whitlam, Ted Heath) — and perhaps even being re-elected Prime Minister later (Menzies, Churchill, Trudeau) — seems a bygone age. They might serve out their term until the next election, but then they retire and don’t re-contest.
        In Australia, the last four Prime Ministers to be defeated at elections (Fraser, Keating) or removed by their party (Hawke, Gillard) resigned or retired within a few months at most. Howard didn’t get that choice, but even if the electors of Bennelong had not retired him in 2007, I suspect he would have quit. He was 68 and 1996-2007 was his third climb to the top of the Liberal Party leadership, after losing office as Fraser’s Treasurer in 1983 and being dumped by his party in 1989.
        Kevin Rudd stayed on, but of course he had other plans. Maybe it’s because even in Parliamentary systems, at least the Anglo ones. governments are now seen as being formed at the ballot-box, rather than through manoeuvrings and deals in the party room and on the legislative floor. Once the people have spoken, a “lost leader” is out of politics for good.

      • I suppose if we count Calhoun we should mention Alexander Stephens, the former Confederate vice-president returning to the US house in 1873. He had been elected to the US senate in 1868 but they refused to seat him. He later went on to be Governor of Georgia.

      • Rather than mucking about with offering defeated Presidential candidates from the last election seats in the legislature, it might be better to provide that the person designated as leader by any party with more than (say) 15% of the seats in the lower chamber becomes a non-voting member of that chamber, with speaking rights. The party can of course remove or replace him or her, and could choose a member of that chamber. This would apply if the party chose a leader who was a member of the other chamber, or not a legislator at all.
        (The same should apply to Cabinet Ministers/ Secretaries, who should get speaking rights as non-voting members in each chamber, even if they are members of the other chamber or are constitutionally required not to be legislators. In other words, even with a Presidential separation of executive powers, there’s value in trying as far as possible to ensure that the main political actors are all present in the same chamber to debate each other, so you’re not – as The New Republic once put it – playing Hamlet without the prince.
        (Someone I once ran this idea past suggested that Cabinet Ministers/ Secretaries, or at least the [say] ten most senior of them, should get a vote in the legislature, but only if they were present and took part in Question Time that week…)
        On deeper reflection, the reason why opposition party leaders are valued in parliamentary-executive legislatures is forward-looking; because they represent potential winners — or at least kingmakers — at the next election. It’s not a backward-looking legacy reward for polling respectably and/or placing well at the previous position. Indeed, a party’s formner candidate for leader (Mark Latham) or deputy leader (Henry Wallace, Joe Lieberman, John Edwards) may end up seriously estranged from his or her colleagues before that legislative term is done,
        I’m sure the Colombian constitutional drafters follow our deliberations on this blog with eager attention …

      • I’m very, very reluctant to mention the Confederate States of America as a model for anything, but they did allow cabinet secretaries to sit but not vote in either house.

        If the republic of Utopia were unwise enough to ask me to solve this problem I would recommend:

        1. the runner-up gets a seat but no vote in the lower house.

        2. the runner-up can be forced to an election by their party on say a 2/3 vote of the party caucus

        3. the new party leader should be elected by something much more inclusive than the party caucus but not necessarily a full national primary

        4. the seat would vacate if the runner-up resigned, ceased to be a same party member or took an office incompatible with membership of th legislature and

        5 just quietly the Australian rules for senators should also apply to the presidency itself insofar as the presidency can change hands without a popular election

    • A caveat that my observations about how Presidential systems operate are largely drawn from the US, which has a very small number of very organisationally-loose and somewhat ideologically-loose parties. (In the sense that it would be very hard to officially bar a candidate from, say, the Democratic Party primary for espousing communism or racial segregation, and not impossible to find a district somewhere in the US where a candidate could win say, a, Demnocratic Party primary despite espousing communism or racial segregation).
      I understand that presidential systems can and do operate differently in Latin America, where there are usually a larger number of more ideologically-cohesive and organisationally-disciplined parties. Whether these differences are substantial enough to invalidate my observations., I leave open.
      (By the way, this is Tom Round. When posting on my phone I am known as “Gaudiatrix”, the cheerleader, for technical reasons I can’t change. In the East I do not go.)

      • Ghana, Namibia, Nigeria and Kenya all allow cabinet members to sit but not vote. And they’re certainly happier precedents than the Confederacy. I haven’t looked at Latin America.

      • Hell, let them all sit. Presidential candidates who polled at least 15%, leaders of caucuses comprising at least 15% of the legislature. The latter should be replaceable at will by their caucus. The former should have a personal seat that disappears if they quit, like Overhangingmandate district deputies in the Bundestag. Speaking but (unless a member thereof) not voting rights in either house. Throw ’em all in together, like scorpions in a jar…

      • One or another journalist blogger proposed that US ex-presidents should get Senate seats for life, as in Italy. Obviously, he added, not any who were removed upon impeachment. So what, commenter asked, about presidents who pre-emptively resign to avoid being impeached, like Nixon (or recalled, like Evan Meacham in Arizona?). I thought about this and came up with a proposal that an impeached official should remain convictable for, say, a year after resigning: it would bar him or her from holding office in future. Papua New Guinea had a similar loophole with MPs resigning to avoid disqualification by the Leadership Tribunal.
        The US has some echo of this in that former presidents and veeps are usually invited (“super”) delegates for life at their party’s convention.

  5. This is probably an attempt to solve a real problem with presidential systems, that there is no opposition leader.

    However, they have it backwards. The natural opposition leader in a presidential system is not the last candidate of the non-presidential party. Its the next candidate of the non-presidential party. It should be whoever is running in the next election, and presumably has a chance of election, not the guy who was just defeated.

    The fact is that usually people don’t care that much about the just defeated candidate in presidential systems, the US being a case in point. Humphrey, McGovern, Kerry, and McCain all remained in the Senate after their defeats. Only Humprey and McGovern ran for president again, and only Humprey could be regarded as one of the key leaders of his party following his defeat, and he lost a bid to be floor leader. None of the four were floor leaders for their parties and only Humphrey even came close. Three defeated candidates, Dewey, Stevenson, and Nixon post World War 2 secured their party’s presidential nominations again, and none were in the legislature following their first defeat, Nixon even losing a bid to return to public office.

    On the other hand, once a political party selects leader who people think actually has a chance of becoming President or Prime Minister, people pay attention even if this person has no government job. In Canada, a parliamentary system, political parties nominate people outside of Parliament as their federal leaders all the time, and not being in Parliament doesn’t make any difference. When this happens, the new federal leaders take their time running for a seat. And of course most political parties are able to arrange for their new leader to contest and win a safe seat somewhere.

    My own proposal in presidential systems is that the nominations for the next election be determined within a year of the president taking office. Then you get a leader of the opposition. You could have some sort of review and removal process closer to the election to remove leaders that fall flat on their face in the interim or otherwise turn out to be unable to contest the election.

    • I’d assumed that once the party had a new nominee the seat would pass automatically to that person. I can’t see a lot of advantage in naming a presidential candidate 3 years ahead of the election and it would be a huge advantage to party insiders trying for the nomination.

      • It would probably work similar to what happens in Canada. While Canada has a parliamentary system, in federal politics the party leaders are chosen in American-style conventions, and the candidates and the winners many be and often outside are outside of the federal parliament. They are often provincial pols. They are often to be chosen soon after a federal election. There are provisions for leadership reviews and for dumping them if needed. Canada is the best example, but Germany with its chancellor-candidates and its combining of a federal and a parliamentary system is somewhat similar. I don’t think there is a presidential system anywhere with a formal leader of the opposition, but I imagine the most natural way to do it would be to just nominate the presidential candidate early, so he or she is in place throughout the presidential term, though a process similar as in Canada and in Germany.

        My own idea is to have the convention, which would also set out the platform, six months after a President takes office. It could reassemble periodically to make changes to the platform. Six months before the presidential election, party members would be polled nationally as to whether they are still happy with the designated presidential and vice presidential candidates (note there are no national ballots at all with the current system). If they vote no, the convention would reassemble to pick someone else. States would have their primaries and caucuses to pick delegations to the convention in the meantime, in whatever year and using whatever method they wanted, so you would get turnover in the convention delegates. There are other versions of this that could work.

        However, “outsiders” are clearly more competitive in elections for leadership of the Canadian federal parties than to be American presidential candidates! Alot of this is obviously due to the sheer amount of money involved and various rigging of the US presidential nomination process, plus there are only two parties involved. I think powerful interests are going to game the selection of President of the US regardless of what system is used. But I really don’t see how putting the process three and a half years before the election instead of a few months before the election helps or hurts the chances of insiders.

      • I can find official leaders of the opposition in Peru, Sri Lanka and Tanzania. The first and second runners up get official opposition positions in Peru although I am uncertain if they get congressional seats.

  6. ‘… Enoch Powell was a very popular politician and there is a possibility that if we had had a presidential system of direct election, that he might have become leader of the country, though I think the probability is not, but there is a possibility he would have been….’
    – Vernon Bogdanor, “Enoch Powell and the Sovereignty of Parliament” (12 March 2013)

  7. So will it be Ryan, or Pence…?

    “[… Ryan] speaks of what the new “government” will do as though we’re in a parliamentary system. That would make Donald Trump the figurehead monarch, and Paul Ryan the prime minister. Let Trump be head of state, if that flatters him. Ryan will gladly assume head of government. The head of government has done his homework and knows what he wants to achieve, while the head of state is still in the period of processing that he’s the head of state.”

    – Jim Newell, “Welcome to the Paul Ryan Presidency: If the inept transition is any indication, Donald Trump will be the figurehead. The House speaker will run the show.” Slate (15 November 2016)

    “[…] Donald Trump, until last week, had never done a government job or held an elected office. He ran for president as a kind of anti-politician, ignoring the conventional wisdom about how to win. Amazingly, he won. It was, in its way, an impressive feat, overturning much conventional wisdom. Still, there’s no getting around the fact that, as president, he’s got to be political and must surround himself with politicians. Mike Pence, his vice-president, may turn out to be the most important of the lot. […] At a time when rumours abound that Trump is planning a hands-off presidency — it’s said he will spend a good amount of time in New York — an intriguing question presents itself: how much else will be devolved to Pence? Might his duties include running the American government?”

    – Patrick Allitt, “Could vice-president Mike Pence be the most powerful man in America?” The Spectator (19 November 2016)

  8. Interesting discussion here: Prof Robert Chesney, “Trump Will Need A New Law To Put Mattis Back In the Pentagon” (22 November 2016)
    Coming at it cold, as an interested (foreign) amateur, I would have assumed that any Act of Congress purporting to set statutory qualifications for appointments – at least, for Cabinet-level appointments – would run afoul of the advice and consent clause as per Bowsher v Syngar – ie, Congress is trying to tell the president and Senate whom they can and cannot select. (Even though “Congress” includes the Senate, in this case it’s the Senate of 1946 purporting to bind or fetter the Senate of 2017).
    But none of the bloggentary on this discusses the Constitutional issue, focusing instead on whether Congress can “grant a waiver” either by passing a special Act permitting Mattis, like Marshall, nominatim, to be appointed (a sort of reverse Bill of Attainder) or simply repealing the entire Act.
    The closest Australian equivalent is a clause in the Judiciary Act directing the federal Attorney-General to consult the States on any High Court vacancy (this was inserted by the Fraser government in 1981 as a sop to the Queensland Nationals and West Australian Liberals, ie our local Dixiecrats, who wanted every second High Court vacancy to be filled by State appointments via a rotating roster). It’s never been tested in court and the best legal advice is that it doesn’t actually fetter the power of the Governor-General in Council (ie, federal Cabinet) to appoint High Court justices , but merely regulates time place & manner. Query whether anyone would have standing to challenge it, ie Noel Canning style. And when the procedural hurdle is “consultation”, not a public vote of the legislature, evidencing a breach might run into problems with the well-respected confidentiality of (recent) Cabinet deliberations, both federal and State.

  9. “… Democrats should take a cue from parliamentary democracies. In those systems, the party that comes in second still has an official leader. That party head becomes the recognized leader of the opposition, and as such has the job of holding the government accountable. In the American system, there is no official position as leader of the opposition. There’s a legislative role for the minority leaders in the House of Representatives (Nancy Pelosi) and the Senate (Chuck Schumer), of course. And Schumer, in particular, will have some real leverage — thanks to the Democrats’ ability to filibuster some nominees and legislation in the Senate, the narrowness of the Republican majority in that chamber, and the pronounced willingness of Republican senators like Lindsay Graham and Rand Paul to buck Trump. He’ll play a big role in winning a few battles against Trump’s nominations and policies, and so will Pelosi, to a lesser extent. But however crucial they are as legislative tacticians, the role of opposition leader requires someone more aggressive, someone who can rally grassroots liberals and congressional Democrats, and someone who can craft and convey a message that can be widely supported and echoed. […] Democrats are, by nature, rule-followers-and there’s no tradition of having an official role for an opposition leader in one of the major parties. Crafting a position like this for Warren would be a radical move. But radical times call for radical measures. Democrats have to oppose Trump as hard and effectively as they can-and they can’t wait till January 20 to start mounting that opposition. The only way the party can hope to put the brakes on the worst of the Trump agenda is to come together as a cohesive party. And that means rallying around a leader who can help it speak with one voice….”
    – Jeet Heer, “Democrats Need To Pick a Leader. Now. The fragmented party needs a public face of unified opposition to Trump. Elizabeth Warren is the clear choice.” The New Republic (5 December 2016)

  10. An interesting storm in a teacup in the Northern Territory’s Parliament. The second-largest party has 2 seats out of 25. A group of three Independents has formed and wishes to claim the official Opposition status. Legal advice has been given that an ad hoc grouping of professed independents cannot be a “party”:

    “Solicitor-General’s advice derails The Alliance’s bid to seize official NT opposition status from CLP”
    ABC (Australian Broadcasting Corporation) News (6 February 2019)

    “NT Opposition’s appointment questioned amid continued push to unseat it”
    ABC (Australian Broadcasting Corporation) News (31 October 2018)

    A good argument for drafting the relevant Constitutional clauses/ statutory provisions/ standing orders to refer to “leader of the second-largest group of MPs” rather than “leader of the second-largest party”.

    Also some dispute over whether the call is for the Assembly as a whole, or just the Speaker. Can’t imagine this reaching the courts – even on the slim chance it might be held judiciable (ie, “not a political question” in American terms), hard to picture anyone showing they have standing to litigate the matter.

    • It raises an interesting dichotomy between the ideals and the reality of parliamentary documentary. On the one hand, if a majority of the assembly was independent, but tried to form a government, they might succeed. On the other hand, since they have not taken the almost effortless effort of forming a party, they lack a clear path towards forming a government. The pair of Country Liberals will have enough candidates, and will probably grow, in the next election. The Alliance doesn’t. It is difficult to be a government in waiting when they aren’t taking steps behind the scenes.

      I would say, not that anyone would ask, if they put forward plans to support like minded candidates in the next election, they should become the official opposition. Otherwise, they’re really just asking for more floor time.

      • Mark, good point, but it seems to require a political judgment about likely cohesion. One could argue in, say, Queensland two decades ago, that if One Nation had won 11 seats out of 89, the Nationals 10 and the Liberals 9 (an entirely plauibsle result given then voting patterns), a proposed Liberal/ National Alliance with 21 seats might be too shaky to credit as second-highest bloc in the Parliament. Mind you, One Nation wasn’t much more cohesive either, despite its common party label, whereas blocs of like-minded independents have proven themselves quite cohesive in, eg, NSW 1991-95 and federally 2010-13.
        Another good reason to leave this for a quasi-independent but political player like the Speaker than to ask the courts to inquire into these matters. Although the Speaker is an appointee of the legislative majority ruling here on the rights of the legislative minority.
        Needless to say PR would preclude the “Kim Campbell” anomaly where a major party with substantial but evenly-spread support loses most of its seats and gets reduced to the same level of parliamentary representation as a couple of independents with support concentrated in local bailiwicks.

      • I’m nominally in favor of letting the Alliance have a go, if they can demonstrate any level of cohesion that might take them into the next election. To use your example, a National/Liberal block asking to be recognized as the official opposition would have the precedent of a few National governments backed by the Liberals. A practical judgement that two groups have worked together and are saying they are doing so again is sufficient. The Alliance has not yet reached that point.

        You are right about their being a better system that one that hands 72% of the seats to a party that gets 44% of the primary vote.

      • Although the big issue with PR in the Territory is that the NT Assembly is only really comparable to the Nunavut and North-West Territories legislatures, in terms of how sparsely populated many seats are. The seat of Stuart, for example, is larger in size than the United Kingdom, but has just 6,000 enrolled voters.

        As for the Alliance, I don’t think it would be unreasonable for the Speaker to at least request that they register a political party, which requires just 200 people, before sitting as the Opposition.

    • What would happen if the 2nd largest party in a legislative body forms government? How would this leader of the opposition clause be interpret? It would be best to phrase it as the largest party not part of the government, and to allow for the leader of the opposition to share shadow posts with other parties in the opposition.

      • If the second largest party is leading the government, then one would assume that the largest party is entitled to official opposition status, unless they are a “junior” partner to the government.

        Logically, in a multi-party setting, the largest group desiring to replace the incumbent government gets the label of Opposition, and other parties, coalitions, groups, etc. are also given proportionate resources and speaking time.

      • “The largest party whose leader is not a Minister”?
        So, eg, if the largest party decides to sit things out until the next election, and give their opponents plenty of rope to tie themselves in knots [*] (like the Swedish Social Democrats – I think? – did in 1977-78?) they would form the opposition.
        [* I’m predicting, quite seriously, that “enough rope and let them hang themselves” will be badly dated in another few years, like certain other phrases]

      • Such a party would be in opposition would they not. Of course that begs the real cheat: what happens if the leader of the largest party doesn’t become PM, but remains leader while his deputy forms the government. Could he claim the rights of Leader of the Opposition?

      • Good point. Okay… how about “a party is a ‘government party’ if (a) any one or more of its legislators are Cabinet Secretaries/ Ministers * or (b) if any one or more Cabinet Secretaries/ Ministers are nominees of those legislators. The second clause would catch situations like Switzerland where the (eg) Socialist/ Social Democrat Ministers in the Federal Cabinet are not necessarily members of the legislature (and if they were, would have been required to resign their seats on election) but hold Cabinet office because they were nominated ** by the parliamentary caucus of the Socialist/ Social Democrat party.

        (Not unlike the rule in some States’ constitutions that, eg, the majority and minority party leaders in the State’s Senate and assembly get to name members to the redistricting commission, the ethics commission, etc.)

        Contrast the US system at federal level where Democrats like Jeane Kirkpatrick or Norman Mineta may serve in a GOP Administration, at Cabinet level, and likewise Republicans like Robert Gates and Ray LaHood may serve in a Democratic president’s Cabinet but they are selected by the President (of the opposing party) and not by the House or Senate leadership of their own party.

        And an “opposition party” is then any party not a “government party,” ie one that “has no Ministers.”

        * My preferred designation because (i) officials titled “Ministers” are usually the political heads of executive departments but (ii) officials titled “Secretaries” are not unless they are in Cabinet – eg, in Australia a “Secretary” is the permanent head, equivalent to a director-general.

        ** Complicated by the fact that legally the appointment is made by the federal legislature in a joint sitting, but there is a strong convention that the assembly elects the nominees of the parties – although I understand this tradition came under strain in 2003 when Christoph Blocher put his hand up and claimed a Cabinet seat, with some opposing MPs saying they would elect someone from the moderate wing of the SPP but not Blocher, and others saying they would not vote for any SPP member for a Cabinet position. (Someone please clarify? I often find Swiss news reports lose something in translation…!)

  11. Well put, Mark and Henry, you’ve convinced me.

    The relevant criterion (probably best located in the Standing Orders) could therefore be something like “the leader of the largest party grouping who is not a Minister”, with “party grouping” being further defined as a formal alliance or coalition of two or more registered parties, or each individual registered party that is not in any such alliance, and “largest” being defined as most seats or, if tied in seats, most votes at previous election (several Caribbean dominions have provisions like that), with the Speaker making the call.

    This would preclude an ad hoc alliance of, say, three Independents – with strong local roots in three constituencies but no presence at all in the rest of the polity – from claiming the Opposition Leadership ahead of a major party that has been temporarily reduced to two seats.

    Granted, it would not protect against a more extreme form of Queensland 2012 where Labor with 26.7% won only 7 seats and the Katter Family Trust (effectively independents who won two adjoining far north-western mega-electorates, still but officially registered as a party) with 11.5% won 2 – had the numbers been slightly closer), my criterion above would still have given the Katterites the Opposition Leadership had they won 5 seats (entirely possible as clan patriarch Bob Katter II has five adult children) to 4 for Labor. For whatever good being Opposition leader would do under a Premiership like Campbell Newman’s.

    • More modern Commonwealth constitutions have provision for the office of Leader of the Opposition. A typical example is Jamaica:

      Whenever the Governor-General has occasion to appoint a Leader of the Opposition he shall, in his discretion, appoint the member of the House of Representatives who, in his judgment, is best able to command the support of a majority of those members who do not support the Government, or, if there is no such person, the member of that House who, in his judgment, commands the support of the largest single group of such members who are prepared to support one leader.

      Whoever is to appoint the leader of the opposition, their job should not be to speculate on what different groups of opposition MPs will or will not do at the next election, or even whether they intend to form a government if given the opportunity. There is an exact analogy to the task of appointing a prime minister, which does not include speculating on the political intentions of potential candidates.

      • Interesting that whoever drafted the Jamaican clause used both “discretion” and “judgment”… Has this ever been adjudicated by a court or are proceedings in Parliament absolutely barred (as in India and other Westminster ex-colonies?)

      • The section reference is 80(2). The appointment is not a parliamentary proceeding, its a discretionary act of the governor-general. The constitution does not appear to have any bar on judicial review of parliamentary proceedings.

    • Parties have never been part of the Westminster constitutional conventions. When a prime minister os to be appointed the governor-general does not look beyond who is most likely to enjoy the confidence of the house and that is merely a matter of counting members. If the designating authority for leaders of the opposition gets to make judgments about who on the opposition benches is most capable or has a coherent program, then you are not only threatening the way the opposition leader is designated, you are also inviting the governor-general to apply the same standard in designating a prime minister. And that transfers the choice of prime minister, like the choice of p[position leader, from the parliament into the hands of other organs of state.

      Some nineteenth century monarchies, most notably Brazil, experimented with such a role, known as the moderative power, invariably with fairly negative results. Let’s not reinvent the moderative power in the hands of the speaker.

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