A reaction to “no separation of powers without divided government”

Vox published quite an incisive article today by Lee Drutman. The title almost speaks for itself, though I would have put ‘checks and balances’ where he put ‘separation of powers’, since the point is that the latter has proven insufficient for the former to be meaningful or effective. Though the issues involved should be very familiar to most of our readers, it is worth a read, and is not long. The article’s diagnosis is very accurate, and the solutions it points to are spot on (refreshingly, confidence votes are mentioned in addition to proportional representation). Its analysis of the founders’ constitutional design intentions is, however, flawed.

First of all, the founders probably did not think the Constitution would prevent parties from forming. The authors of the Federalist Papers certainly didn’t think so. In Federalist no. 10, Madison argues that parties arise from “the nature of man”, and quite clearly states that as long as we maintain liberty, faction is inevitable: “There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects. There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests… The inference to which we are brought is, that the CAUSES of faction cannot be removed, and that relief is only to be sought in the means of controlling its EFFECTS.”

To Madison, therefore, the purpose of constitutional design is not to prevent faction or extinguish it, but to “control its effects”. In Federalist no. 10 he proposes to achieve this end through the large republic, whose size and combination of so many people with so many different interests would make it hard for a majority to materialize. In Federalist no. 51, he repeats this argument, saying “the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.” But to this he adds another mechanism: “each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.” This is the separation of powers, giving the different branches institutional independence and their own separate interests.

As Drutman rightly says, experience has shown, especially lately, that this system of incentives has proven insufficient (especially to checking the executive) when the presidency and both houses of Congress are controlled by the same party. It is hard to argue the framers did not attempt to guard against just that, especially in making the House and Senate so different from each other. The passage which Drutman himself quotes from Schattschneider is probably correct, and as Drutman himself writes, “[dividing] up power across so many competing institutions that it would be impossible for partisan majorities to form” meaning majorities of the same party in both houses along with the presidency – unified government. I don’t think the framers were so optimistic as to think their design made unified government impossible, only that it made it significantly less likely – not an unreasonable expectation. But unified government was not an unknown danger, but one of the main dangers they set out to avoid. And, as I said before, they clearly did not think their institutions would actually prevent parties, only prevent them from forming majorities.

Which brings me back to the Federalists’ first argument – that in a large republic interests would be too numerous and diverse to allow one party to form a legislative majority. This has clearly proven wrong – but the reason for this, crucially, is the electoral system. With single-seat districts, a party can win an assembly majority even in a democracy as large and diverse as India, the result of the mechanical effect of the system on seat shares. Under proportional representation, however, even very small countries rarely witness single-party legislative majorities. Whether or not increased numbers and diversity in the population also brings with it a lower chance of this occurring, in accordance with Madison’s logic, is unclear. What seems certain, however, is that under proportional representation, Congress and the system as a whole would function much more in line with the framers’ original predictions.

Lesotho (MMP) & Malta (STV) hold early elections on the same day

Lesotho and Malta will hold early elections this Saturday, June 3rd. Both have parliamentary systems and each one uses a different (and interesting!) type of proportional representation – each having a certain following among readers of this blog.

Lesotho uses a one-vote variant of MMP, with 80 single-seat districts in the nominal tier and 40 in the list tier. There is no threshold, and no seats are added in case of overhang, so a party can win a majority by taking more than 60 districts.

Malta uses STV, with a twist: if I understand correctly, in case one party receives an absolute majority of first-preference votes, seats are added to ensure that party has a majority, and that the majority is in proportion to its majority of the vote.

The elections were also called in different ways. Lesotho’s parliament (election not required before February 2020) was dissolved after the government lost a confidence vote in March – the prime minister could have handed over power to the coalition that ousted him, but chose instead to ask the king for an early election. Malta’s early election (originally not due until March 2018) was called by the prime minister.

Turkey: referendum post-mortem

As most are undoubtedly aware by now, the package of constitutional amendments proposed by Turkey’s government passed narrowly in the referendum two weeks ago.

I feel like my first post on the subject did not adequately cover the already deeply authoritarian background in which the referendum took place. Freedom of speech and the press have never been fully established in Turkey, and their suppression has worsened over the last decade. Moreover, since AKP rose to power in 2002, the public sector has been subjected to repeated purges, and not just since last year’s failed coup. The referendum campaign itself was strongly affected by this, and the legitimacy of the outcome should certainly be questioned. Claire Berlinski writes[1]:

“The poll took place under a state of emergency. A third of the judiciary has been fired; some are still in jail. Three members of the Supreme Election Board are in prison, too. It’s possible that they’re mostly Gülenist coup-plotters as charged, and possible that jail is exactly where they ought to be, but this doesn’t obviate the point: Nothing like an independent judiciary buttressed this referendum. In some cases, authorities prevented “no” campaigners from holding rallies and events; those opposing the motion were tear-gassed (of course), and prohibited from carrying signs or assembling, or even beaten or shot at. The “yes” campaign received vastly more publicity; its supporters were given hundreds of hours on television stations. Opponents, almost none…

Hundreds of election observers were barred from doing their jobs, and at the last minute, the election board changed the standards required to prove accusations of ballot-box stuffing. Many instances of voter fraud appear to have been captured clearly on camera. [my link]”

It is clear that many of these democratic deficits have existed for years now. Not just in terms of democratic rights or process, but also the constitutional checks and balances. As Berlinski argues, the referendum “merely legally formalized the longstanding de facto state of affairs”. Dissolution power, extensive decree powers, emergency powers – all existed already. The only difference was that they were mostly vested in the government. Under semi-presidentialism, president’s Erdogan’s position was already secure[2], but his power depended largely on being able to control the government.

In theory, under the semi-presidential system, AKP MPs (including the Prime Minister) could use their position to check the president’s power by scrutinizing the government and holding it to account. In practice, of course, they have little reason to do so. Therefore, the only situation in which the president (and the government) might be subject to meaningful check would be if the government ever lacked a majority in the Grand National Assembly – in extremis, this could have resulted in cohabitation, depriving Erdogan of control over the executive entirely.

My current theory is that AKP’s loss of its assembly majority in 2015a is what motivated Erdogan to seek a fully presidential system – completely eliminating the assembly’s confidence power over the government and vesting all executive power (plus decree powers) in the president and his agents. Now Erdogan will be secure in his position as president, as before, but his control over the executive will be secure too.

Therefore, despite this change to presidentialism (and earlier, semi-presidentialism), this democratic breakdown comes in the ‘parliamentarism’ column. Was it something inherent in parliamentarism that made, or allowed it to happen? Probably not. All else being equal, things could have easily followed much the same path.

What probably did make a difference, I think, is the electoral system – specifically the 10% threshold, which has a strong tendency to manufacture majorities[3]. At the 2002 election, the AKP came to power with a single-party majority gained off a mere 34.3% of the vote. Admittedly, at every election since (except 2015a), the AKP received more than 46% of the vote, vote shares which would have granted it majorities even in most proportional systems. But I wonder whether, under a truly proportional system for the assembly[4]:

  1. Fewer voters would have voted strategically for AKP (at the 2007, 2011, and 2015b elections), instead voting for other parties which would have been viable as a result of the lower threshold; and/or
  2. Lacking a majority from 2002 through 2007 would have prevented AKP from accruing an incumbency advantage (of any kind – democratic or not) at the 2007 election (assuming it would still have managed to form the government).

If either were true (and both seem likely to me), it is considerably more difficult to see how the party would have managed to undermine democracy and usurp power in the way it has. Without a majority, the other parties would have been able to check AKP’s consolidation of power, it would have been much more difficult for the party to change the constitution to introduce direct presidential elections (2007) or undermine the independence of the judiciary (2010), and it would have been difficult for it to force through its own choice of president in 2007. Even if the above propositions were not true, proportional representation and a multi-party legislature[5] would undoubtedly have delayed the erosion.


[1] I strongly recommend Berlinski’s account of the decline of Turkey’s democracy since 2002 (and the atrocious western response), Guilty Men: How Democracies Die.

[2] Meaning, he cannot be removed by majority vote in the assembly or by his party.

[3] Though I do not think this feature is inherently undemocratic, majoritarianism is problematic (especially in young democracies). If it is included in a system, it should always be balanced out by countervailing checks such as strong bicameralism and a well-entrenched constitution.

[4] At a minimum, this would mean a threshold reduction from the current 10% to 5%, ceteris paribus.

[5] Or a powerful upper house elected by proportional representation, especially with non-concurrent and/or staggered elections.

Turkey referendum: Latin Americanization on the road to autocracy

Turkey will go to the polls on April 16th, to vote on a set of constitutional amendments which would change the country’s system of government to presidentialism. Though it seems that in Turkey, the current system is generally referred to as ‘parliamentary’, Turkey has actually been semi-presidential (specifically, premier-presidential) since the country’s first direct presidential election was held in 2014.

The amendments passed the three-fifths legislative majority necessary to put them to referendum with support from the Nationalist Movement Party (MHP). Introducing presidentialism has long been president Erdogan’s express wish. The idea has apparently been around in Turkish politics for a while before it was adopted by the Erdogan and his party, AKP. Full presidentialism seems to have been ‘plan A’, so introducing semi-presidentialism (passed in 2007, entering operation in 2014) was perhaps only ever meant as a way-station toward this goal.

The main details of the amendments are as follows:

  1. Establishing presidentialism:

As stated above the president is already elected directly, specifically using a two-round system. The president is to become both head of state and head of government, with the power to appoint and fire ministers and the vice president. There is no requirement for the Grand National Assembly to confirm appointments. Executive office is incompatible with assembly membership. Interpolation of ministers is to be removed from the constitution, leaving MPs with written questions.

  1. Legislative powers:

The president is to have veto power over legislation, subject to absolute majority override in the assembly. He is to have the power to issue decrees in “matters concerning the executive power” and regulations “to provide for the enforcement of the laws, provided they are not contrary to them”. These cannot affect fundamental rights, except under a state of emergency; an emergency can be declared by the president without confirmation by the assembly, but the latter must be notified immediately and can shorten or end it at any time. These decree powers are essentially the same as those currently held by the cabinet. The president would also dominate the budgetary process: the complete budget is to be proposed by the president and put to a straight up-or-down vote in the assembly without possibility of amendment, with failure to adopt a budget within a timeframe leading to continuation of previous arrangements.

  1. Term lengths and dissolution power:

The assembly’s term in extended to five years (from the current four) and legislative and presidential elections are to be held concurrently. If the presidency becomes vacant, fresh presidential elections must be held. If parliamentary elections are due within less than a year, then they too are held on the same day as early presidential elections; if the parliament has over a year left before its term expires, the newly elected president serves until the end of the parliamentary term, after which presidential and parliamentary election cycles are held concurrently again.

The president is to be limited to being elected twice, but there are some exceptions, the first of which is that a mid-term vacancy-filling election doesn’t count towards the total. The current presidential power to dissolve the assembly is retained, in addition to a new clause which enables the assembly to dissolve itself, by three-fifths majority vote – in either case, fresh elections are held for both president and assembly, who serve new five-year terms. Early concurrent elections triggered by the assembly can always be contested by the president.

  1. Impeachment

The president or any member of the executive is indicted by two-thirds majority in the assembly (upon which many powers, including dissolution, are suspended), which takes the decision on removal to the Supreme Court. A president which has thus been removed is ineligible for re-election.

  1. Judiciary

The acts of the president, previously protected, are now to be subject to judicial review. The structure of the judiciary will not change much – with the role of the president in appointments remaining quite strong. Of the Council of Judges and Prosecutors, the president is to appoint 6 and the assembly is to appoint 7 (4 of whom must be judges from the highest courts) – for renewable four-year terms. The Council appoints most (two-thirds to three-quarters) of the judges of each of the highest courts, with the rest being appointed by the president directly.

According to the BBC, Erdogan claims that the new system will ‘resemble those in France and the US’. There is clearly little truth to this. First of all, France is semi-presidential, specifically the premier-presidential variant. This means that the prime minister, while appointed by the president, can formally only be removed by the assembly – in other words, what Turkey has now. These amendments would outright abolish the prime ministership and parliamentary responsibility, granting the president (already in a position to play a dominant role in the country’s government) absolute control over the executive branch.

Does that mean that the new system will essentially be the same as the US? Not really. Presidential or not, the proposed system includes numerous features bearing little resemblance the American model of checks and balances. The amendments would invest the Turkish president with extensive constitutional decree powers, allow him to all but dictate the budget, but on the other hand leave him with a substantially weaker veto than the US. The absence of assembly confirmation vote for ministers, not to mention presidential dissolution power, are also alien to the US constitution. Overall, the proposed institutional framework is to bear far greater resemblance to past and present constitutions of Latin America, where assembly confirmation is non-existent, emergency and decree powers are common, while some of the other institutions in question have featured occasionally, e.g. presidential dissolution power (Ecuador, formerly Chile and Argentina) and weaker veto (Brazil, formerly Venezuela).

In any case, the proposed amendments represent an immense consolidation of power in the hands of president Erdogan. It would probably allow him to serve beyond the supposed limit of two five-year terms. Judicial appointments involve a somewhat greater degree of presidential influence over a judiciary that has already lost a great deal of independence in recent years. Judicial review, needless to say, will not amount to much. Furthermore, the requirement for judicial ratification may leave impeachment ultimately toothless even in the unlikely event that the requisite majority were achieved in the assembly. Meanwhile, the weak veto and the assembly’s own (weaker) power to call early elections is unlikely to provide much balance in practice. Though dissolution would entail new elections for both president and assembly, a president armed with the power to dissolve the assembly still seems more likely to have the upper hand in the exceptional situation his party ever lacks a majority there – exceptional because of the country’s majoritarian system, and because the president’s very power of calling early elections enables him to do so opportunistically, as Erdogan did in 2015[1].

The Venice Commission’s report characterises the proposed changes as “a dangerous step backwards” for democracy in Turkey. It certainly feels hard to disagree.


[1] One might add (as the Venice Commission does) the fact that elections will be concurrent, which is certainly true, though, as we have recently seen, it’s certainly possible (though still uncommon) for countries to elect a president in the second round that was not of the legislative majority elected concurrently with the first round (e.g. Argentina, Peru), while more generally, two-round systems cause vote fragmentation in the first round. If elections in Turkey remain competitive, it may be that the two round system will, in the long run, cause fragmentation which will spread to the assembly. Perhaps more likely is that once in a while, the concurrent elections could result in divided government as in the first scenario I mention here. A situation like that might provoke Linzian scenarios, but is probably most likely to simply result in early elections at some point, whose outcome would most likely be a reversion to the regular unified control.

Olives


By JD Mussel

img_20161102_173530The olive is one of the Biblical Seven Species (shiv’at haminim – שבעת המינים) of the Land of Israel. Growing up in the Lower Galilee, picking olives from our backyard tree was a yearly affair I enjoyed helping my parents out with from a young age. Although, once, we took some of our olives to an olive press in a nearby Arab village, my father would usually cure them in salt water with garlic, lemons, bay leaves and chili peppers. We’d pretty much have a year-round supply of olives at the dinner table, of which I was an avid consumer by the time we left Israel when I was 12.img_20161105_170610

Like Israel, most of California has a Mediterranean climate, and it so happens that UC Davis has many olive trees around campus. Having seen these soon after arriving in September I soon noticed that they still went unpicked in October. I called up the university grounds department, and was told I could take as many as I wanted. Naturally, I leaped at the opportunity…img_20161112_010736

 

 

And so, last month, after twelve weeks of waiting, they were ready.

 

img_20170205_142157I am very grateful to my parents for the inspiration and, of course, for the recipe.

 

Spain: not a federation, but not strictly unitary – video

VanDeGraph of youtube recently put up an excellent video explaining Spain’s autonomous regions.

He does a very good job of explaining the crucial distinctions between between federal and unitary states[1], and why Spain, despite its very high degree of decentralization, is not (strictly speaking) federal – and, by implication, why some countries which do not actually call themselves federal probably are (e.g. South Africa).


[1] I do, however, disagree with VanDeGraph’s distinction between federations and confederations as hinging on the right to secede, or that federalism necessarily excludes this right.

Romania returns to Party-List PR and to cohabitation

By Henry Schlechta and JD Mussel

Romania held elections to its bicameral legislature on December 11. The elections resulted in the Social Democratic Party winning almost half the seats in the Chamber of Deputies and Senate, while the largest opposition National Liberal Party appears to have received only about 20%.

The election saw a return to Party-list PR after having used a type of District-Ordered List system at the last two elections (2008 and 2012). The previous system worked as follows: candidates competed in single-seat districts; if a candidate received 50% of the votes, they were elected. The rest of the seats were first allocated to parties so that the overall result was proportional (with the possibility of overhang), and then was decided which candidate was elected in each district through a complex formula (truly!) which allocated seats roughly in order of candidates’ share of the vote, but ensuring each district had (at least) one of its candidates elected. As the number of seats per party was decided proportionally, this often resulted in the situation that a district was represented by its second, third, or even fourth-most voted candidate. Lastly, a few seats were allocated to minority parties, for whom the 5% threshold applied to other parties is waived under the constitution.

The new system effectively returns to that used before 2008, with party-list PR in multi-seat districts (the electoral system was, and is, identical for both chambers with the exception of district magnitude; Chamber average M=7 (‘M’ for district magnitude), Senate average M=3). The old system seemed to have become unpopular given its creation of a large number of overhang seats in 2012[1]. As a result of the landslide victory of the Social Liberal Union pre-electoral coalition, which required a great deal of extra compensatory seats to be given ensure proportionality. Parliament had tried to change the electoral system to single-seat plurality (First-Past-the-Post) in before the election in 2012, but this was overturned by the Constitutional Court on the grounds that this was incompatible with the constitutional 5% threshold provision and its waiving for ethnic minority parties in the Chamber.

This year’s election result is particularly interesting because of Romania’s semi-presidential constitution. The President, Klaus Iohannis, was elected in 2014 as the National Liberal candidate. He first served alongside a Social Democratic prime minister, Victor Ponta, whose cabinet  was a coalition which did not include the National Liberal Party, but after Ponta resigned in November 2015, and subsequently Iohannis appointed a technocratic non-partisan cabinet. The cabinet is required to step down following the election, so no no-confidence vote is required against the incumbent cabinet.

Romania’s system is premier-presidential, and president Iohannis will have the initiative in appointing the prime minister. However, since the Social Democrats form a majority with their preferred coalition partners, the result will almost certainly be a return to cohabitation for a country which has already had it for much of the past decade (2007-2008, 2012-2015), including immediately before the appointment of the current non-partisan cabinet.

Nonetheless, president Iohannis has shown he is willing to use his position, ruling out the nomination of anyone with a criminal record for the office, in keeping with a law a Social Democratic president might have been willing to flout in order to appoint the Social Democrats’ leader Liviu Dragnea, who got a suspended prison sentence this year for trying to rig a referendum in 2012, making him ineligible under a 2001 law.

In response, the Social Democrats have nominated an alternative candidate for prime minister, Sevil Shhaideh, a Muslim woman from the country’s Tatar minority; this means Romania will have both president (Iohannis is a Transylvanian German protestant) and prime minister from ethnic and religious minorities.

Interestingly, the authority to approve and dismiss Romania’s Prime Minister is vested in both houses sitting together as one. Romania has (somewhat unusually) bicameralism with two powerful and elected houses. Even more unusually, rather than the normal practice of requiring one or both houses to approve all legislation, each house has certain reserved competencies, on which it may pass legislation without the approval of the other (the latter having only a suspensory veto of no more than two months’ delay). Probably due to the two chambers concurrent terms and virtually identical electoral system (and therefore composition), this does not seem to have caused any major problems.

Similar procedures (including both houses in no-confidence votes) existed at some point in Peru (before Fujimori’s self-coup), where ministers were removable by either house of the legislature. Argentina has a ‘Chief of Cabinet’ responsible to both houses voting separately, though remaining ministers are not, and Colombia’s ministers are individually responsible to votes of either house, though there is no Prime Minister.


[1]176 senators and 412 deputies were elected, 22% and 19% of which was due to overhang, respectively.  According to the cube-root law 412 would be appropriate for a country of 70 million, whereas Romania’s population is about 20 million. The current numbers seem have returned to 136 Senators and 329 deputies or thereabouts.

California primaries: Myth of the ‘independents’

By JD Mussel

Paul Mitchell of Capitol Weekly’s CA120 column tells the rather farcical story of the more than 100,000 Californian voters who thought they were registering to vote as independents and ended up voting in the American Independent Party’s presidential primary.

The American Independent Party is the far-right outfit originally established by Alabama segregationist George Wallace for his 1968 presidential run (which was aimed at sending the election to the House of Representatives). They ended up choosing Trump as their nominee this year, though he didn’t even appear on the ballot for the primary. I didn’t know California allowed electoral fusion before I noticed this dual nomination on the sample ballot I got in the mail last week[1].

[1] Yes, I have moved! I have now joined MSS at the University of California, Davis where I started my graduate studies last month.

Jordan’s new electoral system – the more things change…

By JD Mussel and Henry Schlechta

Jordan held a parliamentary election last month, for the first time under a proportional party-list system. This reform, in line with many previous proposals, replaces the earlier Single Non-Transferable Vote or (mechanically FPTP) pseudo-SNTV (it’s not clear which one was actually used last time around) which at the last election in 2013 was accompanied by a small national list-PR tier.

Reform of the previous single-vote system was a long-running demand of opposition parties, a number of which have taken part in these elections after having repeatedly boycotted them in the past. However, what they may not have noticed (yet) is that the new electoral system may turn out to be remarkably similar to the old SNTV.

A total of 130 non-reserved seats were filled proportionally from open lists of candidates in 23 districts, out of which 9 seats are from 3 parallel Bedouin districts (similar to NZ’s Maori districts) electing 3 seats each. The districts range from 3 to 10 seats, with a median of 4. Spread out among all the districts is a quota for 15 women and (among the non-Bedouin districts) there are quotas for Christians (9 seats) and Circassians/Chechens (3 seats). With more seats allocated to the cities, there seems to be less malapportionment than under the previous system, but it is not clear how much less.

The lists are open, with seats going to candidates with most votes within each list. This was presented as a kind of return to the ostensibly similar multiple non-transferable vote (MNTV) which had existed before the introduction of SNTV: voters have as many votes as there are seats to be filled, and can cast them for a list as a whole or for any number of individual candidates on the list. Candidacies must be as part of lists with at least 3 candidates up to the number of seats available.

Largest-remainder PR and ‘SNTVization’

Now, technically, the system is proportional. However, the apportionment formula is largest remainders, using the Hare quota. The potential problem is that the combination of these features and the open-list aspect may present incentives that roughly approximate SNTV. Larger quotas (the Hare quota is the largest of the commonly used ones) are advantageous to smaller parties: the fewer seats are allocated by quotas, the more seats allocated by remainders. The smaller number of votes required to win a seat by remainder means that smaller parties are able to win these seats. On the other hand, for a large party to win multiple seats, they must fill multiple quotas.

The possibility of getting seats from remainders can encourage large parties to turn themselves into multiple small parties, through running multiple lists and dividing their votes between these lists[1]. Hong Kong represents the best example of this tendency. While on paper it is a party-list PR system with largest-remainder and the Hare quota, the 2012 and 2016 elections saw no ‘list’ win more than one seat. Instead, larger parties like the Democratic Alliance ran multiple lists, and divided their votes between them. If no seats are allocated by quotas, the M-lists with the highest vote are allocated one seat. The effect of this is to create a system approximate to SNTV.

District magnitude does not appear to be an especially important factor in this process, with 5-member districts in Hong Kong and the 100-member nationwide district for the Colombian Senate (up until 2002) both being on paper party-list but effectively acting as SNTV.

Of course, there are other relevant institutional considerations. The new law’s requirement for at least three candidates per list could theoretically limit this tactic, though it could probably still be possible for a list to consist of one politician with public profile and two other ‘decoy’ candidates. It is not clear if there are any legal restrictions on one political party registering multiple lists; however, in the context of an electoral politics where parties are still weak and fragmented (and which was until now dominated by independent politicians), it is unlikely to be difficult to register effectively duplicate lists under similar labels.

Political impact

The results of the election show a continuation of the party fragmentation that existed before; barely any parties won more than one seat in each district. However, fragmentation was occasionally an outcome of the electoral system, as there are a couple of cases where lists that won a single seat received more than double the votes of other winning lists. This would have given them two seats if they had presented two separate lists, at least if they had managed to keep the vote distributed evenly between them. Of course, electoral systems take time in order to affect behaviour; however, it won’t be long before politicians will notice this outcome, and the strategic response would seem to be obvious. Therefore, more than likely, the new party-list system will continue as an obstacle to the development of larger and more cohesive party organizations, despite the fact that it was presented as a reform designed to bolster party-politics.

Hence, it looks like the reform may have been a clever stratagem by the government: it can be presented as an ‘abolition’ of SNTV and ‘return’ to MNTV, yet it will likely retain the incentives caused by SNTV. Or it could have been accidental. Whether or not this was intentional, it would certainly seem advantageous to the King: in public opinion, it enhances the regime’s legitimacy (the best evidence of this being how it brought an end to the Islamist boycott); nonetheless, in reality it will likely continue the previous incentives for fragmentation which weaken the parties (most importantly, the Islamists) and, crucially, the House of Representatives, which needs to remain fragmented for the King to maintain substantial power in what is constitutionally supposed to be a parliamentary system[2].

 


[1] The ideal number of candidates elected from each of these lists is one, since a party can win only one seat by remainder.

[2] There are of course other factors relevant in determining whether or not a given ‘constitutional monarchy’ is more monarchy or more parliamentary democracy (as demonstrated by the recent constitutional amendments giving the King more power over appointments) but hopefully it can be agreed that the crucial factor is whether or not governments are responsible to an elected house of parliament, by which I mean that a prime minister and cabinet can be removed by that house. Jordan’s constitution, at least since 2011, makes the government responsible to the House of Representatives.

JD’s Switzerland trip (with photos!)

In February I spent a weekend in Switzerland with a friend. We toured Basel and Bern, visiting the Federal Assembly and the legislatures of two cantons, and also witnessed campaigning for a number referendums (and more!) that would be held the next week.

IMG_6459

On electronic displays this poster showed up as a gif, with the trucks rushing through

On the federal level (and in similar terms in most Cantons and municipalities), Switzerland has two types of citizen-initiated referendum:

  • Votes on ‘popular initiatives’, which amend the constitution. These require the gathering of 100,000 signatures in no more than 18 months. To be approved in the referendum, they require both an overall majority of those voting and a majority of Cantonal votes.
  • ‘Optional’ or ‘facultative’ referendums, which concern recently-enacted federal laws (I like to call these veto-referendums). These require the gathering of 50,000 signatures (or 8 Cantons – though I don’t think this happens in practice) in no more than 100 days from the publication of the act in question. For the act to be vetoed it merely requires to be rejected by a majority of those voting.

    IMG_6591

    A striking multilingual poster near the Basel docks

When we visited there were four federal referendums about to be held, of which three were popular initiatives and one was an optional referendum. As it happened, all four votes would follow the government’s official recommendation: rejection of all the initiatives and approval of the federal law.

IMG_6536

Central Bern, a protest against the popular initiative for the deportation of criminal migrants

The campaigns were very visible and there were posters were everywhere, both in public places alongside regular commercial advertising and on apartment balconies and small shops’ doors. We also saw many different leaflets, including some published by political parties. Far more visible than in the UK, which I also visited during the recent referendum – in London, the only sign I saw of the campaign were some flyerers at a tube station at rush hour on the day of the referendum.

IMG_6604

Cantonal referendum posters in Basel. Note the middle one, sponsored by the Liberal Democratic Party

(As a side note, Switzerland has virtually no regulation of campaign finance, either on the federal or cantonal level. I wonder if that had anything to do with it.)

A number of Cantonal referendums were held on the same day as the federal ones, and we saw posters for these in both Basel and Bern.

We visited three legislative buildings:

IMG_6434

Basel-City’s Canton/City hall

Basel-City’s late mediaeval rathaus (city hall), home to the cantonal legislature which also serves (with the exception of a handful of members) as city council. Unfortunately, we were not able to see the chamber, as the tour clashed with our visit of the Federal Assembly in Bern.
Secondly, Bern’s legislature, the Grosser Rat/Grand Conseil. As far as we could tell there were no regular tours; we were let in by the janitor.

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The Bernese legislature, the Grand Council

Switzerland generally has relatively large legislative chambers. Basel-City, with a population of just under 200,000, has 100 seats, almost double what it should have per cube root; Bern, with a population of  just over a million, has 160, 60% over cube root. The Confederation as a whole is just right with 200 in the lower house for a population of 8.3 million.

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The Federal Assembly’s National Council 

The federal legislature is spectacular. The picture here is of the lower house, the National Council. The upper house, the Council of States, was more difficult to get a good photo of so here’s a link; the wall painting is of a traditional ‘landsgemeinde’ or popular assembly that used to be common in rural areas. Today the practice persists as the form of government of two cantons, where the citizens meet once a year, while the agenda for that meeting, and most details of legislation, are prepared by an elected assembly. One of the members of the Council of States is still elected by their canton’s popular assembly every four years.

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Poster with the candidates of the Socialist/Social-Democratic (depending on whether you translate from French or German) Party in the executive by-election of February 28th (and ultimately also April 3rd for the second round)

Lastly, in Bern, we saw a poster for another campaign – we weren’t sure when we saw it, but it turned out to be for a by-election over two positions in the cantonal executive. Unlike the federal government, the cantonal executive councils are directly elected, mostly (as in Bern) through a two-round system, though proportionally in some cantons. The unusual thing in Bern is that there is one seat reserved for the French-speaking minority of the Bernese Jura – and this seat was one of the two up in the by-election. But, even more interestingly, it turns out this seat is not just reserved to candidates from that region, but the winner is the candidate with the higher geometric mean between the vote total in Bernese Jura and the canton as a whole – a fascinating and likely unique arrangement!

 

 

Mongolia 2016 – an electoral system in turmoil

Today, Mongolia voted in legislative elections under unusual – and worrying – circumstances. At the last such election four years ago, a mixed-member majoritarian (MMM) system was used for the first time, replacing multi-seat plurality. This system was supposed to be used again this year, but a court ruling in April invalidated the party-list PR tier, leading the legislature to enact a last-minute election law, returning the country to a plurality system[1].

The MMM electoral system first used in 2012 included 48 seat elected by plurality[2] (mostly out of 2-seat districts, it seems) and 28 by nationwide closed-list PR. The country’s electoral system had already been in flux since the country’s move towards democracy, and has switched back and forth between different types of plurality voting, which seems to have led to a number of bad experiences[3] The 2012 election resulted in a weakening of the main parties, the entry of a number of new parties, and no overall majority by any single party. The Democratic Party governed in coalition with two smaller parties until November 2014, when the main opposition party, the People’s Party, joined the government in a ‘grand coalition’ (Mongolia is premier-presidential).

On April 21st, just over two months before Election Day and after all electoral deadlines had already passed, the Constitutional Court ruled that the party-list system was unconstitutional. The argument was that election using party lists somehow does not constitute direct election because lists are put together by the parties and (in the case of closed lists) allow no input by voters other than the choice between different lists.

As Matthew and I have argued a number of times on this blog, elections by party list are most definitely forms of direct election, closed or otherwise. It makes no more sense to see election from party list where M=10 as ‘indirect election’ than the same thing where M=1, which is effectively the same as plurality. Since I am far from expert on Mongolian constitutional law, I cannot speak directly to the ruling itself. However, there can be no doubt that the timing was highly questionable, as it made any effective remedy almost impossible, and abuse (or at least opportunism) by the political parties very likely. It sets a dangerous precedent.

Unsurprisingly, the new electoral law in reaction to the ruling was supported by both main parties; as the Washington Post puts it, “One can only presume that politicians from both major parties were keen to drop the party list vote because they are well aware of voters’ growing disappointment with them.” This outcome certainly disadvantages the smaller parties. Had the ruling come earlier, the smaller parties might at least have had the chance to protest and attempt to secure some concessions. However, perhaps this analysis is a little unfair to the parties in the legislature. As it happened, the ruling did not come earlier, and as the constitution forbids constitutional amendments this close to an election, it’s difficult to see what real alternative they had. This should probably go down as one of the worst electoral system-related court rulings ever.



[1] What plurality system exactly? Sources differ. Some suggest it’s a return to the 2008 multiple-seat plurality, others a return to the 1996-2004 single-seat plurality, others yet suggest the only change to the current electoral law is the removal of the 28 PR seats, leaving only 48 seats elected by plurality, mainly from 2-seaters.

[2] Not exactly plurality, as a candidate must receive 28% of the vote to be elected, a rule left-over from the previous systems. A ‘second round’ or ‘by-election’ (sources differ) is held if no candidate reaches 28%.

[3] The specific sources of unhappiness among Mongolians with the results over the years are unclear to me, but casual observations do show there was quite some vagaries over the years (with both very lopsided majorities, and minority parliaments), and, in the 2008 case of multiple-seat plurality, the count was deeply opaque.

Myanmar: from Assembly-Independent to Parliamentary?

Myanmar’s new President, Htin Kyaw, was sworn in at the end of last month, a milestone in the country’s gradual transition period. This is the first transfer of power under the current regime, coming after elections handed the opposition National League for Democracy (NLD) majorities in both houses of parliament in November of last year.

Of course, it remains to be seen how successful this changeover will be, and how far democratisation will go. Under the current Constitution, written by the Junta, the military retains a great deal of power, retaining responsibility for appointing a number of ministers (home, defence, border affairs) as well as one-quarter of each house of parliament as well as in the regional assemblies. As a result of the military-backed USD Party’s poor showing in November, this means the military appointees currently form Parliament’s biggest opposition group.

In the media, however, a different restriction on the NLD’s ambitions seems to have gained somewhat more publicity: the strict requirement that the President not only must be a natural-born citizen, but must have no direct relatives with foreign nationalities either. This provision has widely been seen as specifically targeting Aung San Suu Kyi, the longstanding leader of the NLD, whose two sons have UK citizenship, legally preventing her from becoming President. This has often been portrayed as a big obstacle to Kyi’s assumption of the country’s leadership, and Kyi herself gave a similar impression by seeking, for a while, to change the country’s constitution so that she would be allowed to become president – something the military were always going to veto, and even launch a coup if the NLD simply ignored the constitution.

However, there is one very significant detail here: Myanmar’s President, though very much the country’s chief executive and in possession of ample constitutional power, is not elected directlyInstead, the President is elected by a joint sitting of both houses of the Pyidaungsu Hluttaw (parliament)[1]. The President then serves a fixed five-year term, without being removable by Parliament other than by an impeachment process requiring supermajorities for removal[2]. This makes this a case of assembly-independent, a system whereby the (chief) executive is elected by the legislature but not subsequently responsible to it.

This makes another option – nominating a loyal ally to the presidency instead as a proxy and leading the government from the cabinet – much more feasible than if the President were elected directly, as is far more common in newly-democratised countries and, indeed, in the world: assembly-independent is very rare these days. Such a President would not only be apt to claim a democratic mandate to himself, but his selection as candidate might also be more dictated by questions of electability than by the question of future loyalty to the party (i.e. presidentialisation).

With NLD holding a majority in parliament, it can select someone to the presidency with an eye towards their functioning in the office itself, i.e. with an eye towards loyalty towards the party in the future. Htin Kyaw, the party’s ultimate nominee, fits the bill, being known as “a party loyalist with strong personal ties to Suu Kyi”. The setup still presents a (principal-agent) problem, to be sure, but probably a lesser one than under presidentialism, which might have seriously complicated things for the party.

After the presidential inauguration, Htin Kyaw appointed his ministers, with Suu Kyi as Foreign Affairs and President’s Office minister. There is officially no ‘prime minister’, but Kyaw also made Suu Kyi ‘State Counsellor’ after the NLD passed an act creating that position as the President’s chief advisor – ignoring protests from the military. The position is a ministerial one, so is only responsible to the President. But could that change at some point in the future through a gradual process establishing responsibility to parliament? As I mentioned, assembly-independent regimes have not been too common over the years, especially in recent times – so I don’t know what kind of precedents there are. But a common speculation (it even appears in this blog’s mission statement) is that had the Philadelphia Convention endowed the US with a presidency elected by Congress, the US government could have become parliamentary through the same evolution that established cabinet responsibility in the UK.

Could this happen in Myanmar? Unless the NLD persists – and succeeds – in demanding a repeal of the provisions excluding Suu Kyi from the presidency, it seems likely the current setup, with Suu Kyi effectively leading the government as State Counsellor, will continue until she retires. If, in the coming years, there is no major conflict with the President, I think it likely that she will find this works well enough. The longer this goes on, the more a convention will develop putting the State Counsellor at the centre of power instead of the President – this, I would think, is the first step. Whether the process will then continue probably depends more on Suu Kyi’s successor.

In any case, Myanmar should certainly be interesting to watch in the coming years.


[1] By plurality from three nominations: one by each house’s elected members and one made by the military’s representatives.

[2] Either detail would disqualify this as parliamentarism, but the supermajority requirement does so more definitively.

Australia’s impending double dissolution

The latest news from Australia:

Electoral reform abolishing Group Voting Tickets and establishing partially optional preferential voting ‘above’ and ‘below’ the line was passed in both houses last week, and barring an unlikely High Court decision to the contrary, it will go into effect at the next election. Now that the electoral system is no longer an obstacle (and perhaps due to the electoral reform, which aroused the ire of most Senate crossbenchers), Prime Minister Turnbull has all but called the expected double dissolution election, threatening to do so if controversial industrial relations bills do not pass the Senate at the next session, scheduled to start on April 19th.

A double dissolution is the deadlock-breaking mechanism provided by Australia’s Constitution. Though half the Senate is usually elected alongside elections to the House of Representatives, the Senate has a fixed six-year term. This can only be shortened by a double dissolution election where all seats of both houses are up for election. A double dissolution can only be brought about by the government when triggered by a disagreement between the houses, as spelled out by section 57 of the Constitution; if the disagreement with regards to a bill continues after the double dissolution election, those bills can be put to a joint sitting of the houses, where the government is likely to prevail due to the houses’ relative numbers.

Although section 57 gives the government the power to threaten to dissolve the Senate if it does not pass its legislation, there are various factors that complicate this procedure, making it rather cumbersome for the government. There is, of course, also the risk of losing the election. The procedure has only ever been used six times, and the last double dissolution election took place in 1987.

Zambia Constitutional amendments

Last week, Zambia enacted a package of amendments to the constitution that has been years in the making.

Among the amendments are a number of significant changes to the presidency. In the last decade, two early presidential elections (2008 and 2015) were instigated by the incumbent’s death. In the wake of the cost and difficulty of organising these elections, there were calls for the institution of a vice-presidency elected as the president’s running mate and replacing the vice president on a permanent basis. This change was included in the amendments, replacing the previous position of vice president which was appointed by the President and only substituted him on an interim basis.

Another change was to the president’s dissolution power. Under the previous provisions, the President was able to call an early general election at any time, which would include both presidential and legislative elections. The new provisions stipulates that such a dissolution can only be effected “if the Executive cannot effectively govern the Republic due to the failure of the National Assembly to objectively and reasonably carry out its legislative function”, and must be reviewed by the Constitutional Court, which determines whether or not that is the case. This seems to me as rather ill-advised; whether or not parliament fulfils its role ‘objectively’ or ‘reasonably’, and whether or not the President is able to ‘govern effectively’, are fundamentally political questions, and getting the courts involved in that could seriously undermine their neutrality and independence.

Additionally, in response to widespread calls for such a change, the electoral system for president has been changed from plurality to two-round majority. The original draft presented to parliament several years ago also envisioned the adoption of Mixed-Member Proportional for legislative elections, but this was removed from the bill by the National Assembly.

Lastly, in what seems to be a growing trend in new or heavily-amended constitutions, the amendments introduce federalism (seeing as they include lists dividing up competences among national, provincial and local government which are entrenched along with the rest of the constitution), but call it a system of ‘devolved’ governance.

Imagining the 2015 UK general election under AV

What would the last UK election have been like be under the alternative vote (AV)? I was discussing this question with Henry Schlechta, and I thank him for bringing it up.

The 2011 attempt at electoral reform failed, but let’s imagine it had somehow succeeded, say, for example, if the referendum had turned the other way, or if the Liberal Democrats had succeeded in getting it passed without a referendum.

In the referendum, one of the challenges the Liberal Democrats faced was that they were seen as by far the main beneficiaries of the proposed change. Conservatives and Labour alike would have been expected to rank the Lib-Dems second, and in all projections of previous elections under AV, the Lib-Dems were estimated to gain about two-dozen seats on average, even becoming the official opposition had AV been in place in 1997.

However, according to the Electoral Reform Society’s report on the 2015 general election (which presents several projections of the results of the election had it been held under a different electoral system)[1], the 2015 general election would have hardly been any different under AV:

Party Seats under AV Difference from actual seats
Conservative 337 +6
Labour 227 -5
SNP 54 -2
Liberal Democrats 9 +1
Plaid Cymru 3
UKIP 1
Greens 1

In fact, not only would the Liberal Democrats have received just one seat more than under First Past the Post, the main beneficiaries apparently would have been the Conservatives, who were hell-bent on preventing the system’s adoption in the 2011 referendum campaign.

It would seem that the Lib-Dems lost so much support in 2015 that there would have been far fewer seats where they were among the top two parties in first-preference terms, thus being able to survive exclusion until the final round where they could benefit from Labour or Conservative lower preferences. Perhaps they also lost so much credibility that they would get fewer lower-preferences than in previous elections (I couldn’t find the full poll results on which the projection is based – I would be very grateful if someone else were able to share them with us).

Of course, this is just a projection, with some serious limitations. Firstly, it appears votes under FPTP were simply translated into first preferences. In reality, many voters who voted strategically under FPTP would use the opportunity given to them by AV to rank their real first preference first. Secondly, AV might incentivise parties to pursue different campaign strategies, and maybe even have an impact on manifestoes and candidates, as the need to get a majority of the vote would change what it takes to be elected in many constituencies.

In any case, there would probably have been more 1st-preference votes for smaller parties, including UKIP and the Lib-Dems. But the Lib-Dems might also have benefitted from second preferences from parties such as the Greens, who would usually get eliminated from the count first. Might this have evened out the effect of the Lib-Dem collapse in some constituencies and allowing the Lib-Dems to beat the Conservatives to the final ‘round’ on preferences, by getting second preferences from parties smaller than UKIP?

What would have become of the Conservatives’ campaign warning against a minority Labour government dependent on SNP support? Could it easily have become a campaign for voters’ second preferences?

In Scotland, would Unionist parties have recommended preferences to each other to block the SNP?

These are just a few of the questions that should be considered when constructing this alternate history, and I’d love to hear our readers’ thoughts on these as well as other potential changes to the campaign and results if the UK had adopted AV in 2011 (or any other country – there’s at least one that has been discussed here where the question is becoming increasingly relevant).


[1] Based on second- and third-preference polls. The methodology is stated in appendix of the report (page 33).