Legal Beagle by Graeme Edgeler


Coalition of Losers

2011 is the year of the electoral system. For me, anyway. You should expect multiple posts and other content related to the referendum on the voting system. Hopefully I’ll deliver.

However, while I’m starting the year with an electoral topic, it’s one that is slightly more broad than the look at the mechanics of voting that is likely to consume much of my blogging for the year.

At Victoria University’s triennial post-election conference, a commenter from the floor accused (from memory) Guyon Espiner of running an “unconstitutional” poll, in which voters were asked whether the party that got the most votes had a right to form the Government. At the time, Chris Trotter had called TVNZ “treasonous” for running that poll. But I thought it an important question: however illegitimate a political scientist may consider such an objection, if people generally have the concern that it is somehow wrong for the party that gets the most votes in an election to miss out on government then it is important we know. That any backlash might have been ill conceived in the minds of some, would not have made it less of a backlash, and it could have had a profound impact on the New Zealand political landscape.

A pre-election New Zealand Herald editorial drew similar complaints (even from its opinion pages) when it suggested that a coalition of runners-up might lack legitimacy. On this matter at least, Herald editorial writers have been consistent,* in a 2005 editorial they welcomed New Zealand First’s and United Future’s pre-election promise to talk to the largest party first.

[* it was surprising searching the Herald archives for the MMP-related editorials – the number of positions the paper has taken on a referendum on MMP is confounding.]

I do not think it is as simple as either side seems to make out. Then again I rarely do.

Had Helen Clark’s government continued in office after the 2008 election, cobbling together a Government with Jim Anderton, New Zealand First, the Green Party, and an overhang-causing Māori Party, despite having fallen well behind John Key’s National Party, I don’t doubt that there would have been disquiet (even among Labour voters): support for Labour would likely have fallen, and support for MMP may well have fallen as well.

Of course, it didn’t happen. National didn’t need to rely on the “moral mandate” that John Key claimed pre-election would require the small parties to support a first-placed National Party, but had the numbers with ACT to command a majority in the House of Representatives. However, if New Zealand continues with the MMP voting system, there will be a time when the largest party does not govern, and a coalition of runners-up does. But I do not think that means that the dissatisfaction I consider would have arisen in 2008 will necessarily arise.

By 2008, the Labour Party had lost a fair amount of support. Much of the support it kept was less strident than it had been. It was seeking a fourth term in office. A post-election negotiation in which it brought together five other parties would have been seen by many as grasping: the last gasp efforts of a sore loser – even if the grouping commanded a majority in the House. This will not always be the case.

While some people – perhaps even the editorial-writers of the New Zealand Herald – may feel disquiet at any coalition of runners-up, if that coalition defeats a government, rather than prolongs it, I suspect the disquiet would be less, and less-widely shared.

In 2008, any coalition of runners-up would likely have brought it a number of political strands – from the Greens and Jim Anderton, to the Maori Party, and New Zealand First. The five-headed hydra, as John Key once termed the prospect, would have been disconcerting to many. But again, this is not how a coalition of runners-up will necessarily play out. A coalition of runners-up with a clear two-party grouping (for example, Labour and the Greens, or National with ACT) will be much more readily accepted than one that brings together multiple parties. A multi-headed beast seems much more opportunistic: politicians making shady deals to secure themselves power, without reference to the people. Constitutionally sound or not, a clear two-party group – ideally with meaningful crossover in their general policy direction – can much more easily claim the indirect public mandate needed for political legitimacy than can a politically-diverse multi-party grouping.

The closeness of the election will also play an important part in how a coalition of runners-up is received. New Zealanders’ supposedly innate sense of fairness will be less injured if the election result is National 41% + ACT 5% with Labour 38% + Greens 10% (and forming the government) than it will be if the result is National 48% against Labour 38% + Greens 10%. If the gap between first and second place is small, the idea that a coalition of runners-up may win the day is likely to be less offensive.

There will be those – like the speaker from the conference floor – who will find any objection to a coalition of runners-up to be constitutionally offensive: we don’t election a government, we elect a Parliament, and whoever can command a majority of the House is properly the Prime Minister – whether from the largest party, or merely the largest group of parties. However this ignores one of the salient points of the concern: the objection itself can be grounded in democracy

We may vote for a Parliament, but voters can hardly be blamed for thinking they are voting for a government when that it what parties are campaigning to be: “A National Government will cut taxes” – “A Labour Government will raise the minimum wage to $15” – “New Zealand First will ensure we only have high quality immigration” etc. Parties cannot expect to reap the benefits of campaigning for government, while absolving themselves of some of the consequences of doing so.

This is one of the clear advantages of first-past-the-post: under a system likely to produce a single party government with a parliamentary majority, a party can campaign on policies, and if elected, actually implement them. It wouldn’t quite fit on a bumper sticker, but a Kiwiblog comment I once read has stuck with me: we’ve always had coalitions, it’s just that they used to be called National and Labour, and they announced their policies before the election.

Some chasten the Labour Government of 1984-1987 as “undemocratic” for enacting substantial economic reforms without an electoral mandate. It is a fair challenge (muted somewhat by its re-election in 1987), but it’s also one that can be levelled against post-election negotiations; a coalition – especially a coalition of runners-up – is likely to adopt policies which one party campaigned on but the other did not, and will see one party abandon – at least temporarily – policies that may have been central campaign platforms. This is one factor that may have played a part in our move to personality politics: when even the largest party, in government, cannot be assured of support to enact its policy pledges, it justifiably becomes more reluctant to make such promises.

This brings me to what I consider will be the most important factor in shaping the public acceptance of a future coalition of runners-up: public mandate.

Voters might – collectively – choose a Parliament in which some five party grouping of runners-up meets after the election and agrees to coalition terms, but not a single one of those voters will have voted for that government. If a coalition of runners-up wants to been as legitimate by the public, it will actually need to seek a mandate from the public. If National and Act, or Labour and Greens, or whichever combination of parties some time in the future may arise, want to run a government from second place, without arousing public opposition, they would be well advised to campaign on it. Voters will be far more accepting of a coalition of runners-up if it is announced before the election, rather than after it.

Late last year, Australia held a federal election: the Labor Party was “first past the post”, with 38.99% of the first preference vote, while the Liberal Party got 30.46%, the Liberal National Party of Queensland got 9.12%, the National Party got 3.73%, and the Country Nationals got 0.31%. Ultimately, when all the preferences played out, Labor was slightly ahead on the (useful, but constitutionally-meaningless) two-party preferred vote (with 50.12%. to the Coalition’s 49.88%), but with equal representation (72 seats for Labor, 72 seats spread across the Coalition, and six spread across other parties and independents). But had the numbers changed slightly, and the Coalition been ahead, no-one would have seriously challenged its right to govern – for the simple reason is that the people who voted knew exactly what they would get.

If two (or more) parties campaign as a prospective coalition government, clearly articulating that they intend to seek a joint mandate from New Zealanders to form a government – which may be a coalition of runners-up – people won’t be too that miffed if they do it. What will annoy many New Zealanders is if they don’t really find out about it until after the election, and before the vote there is just some mealy-mouthed “we can work with the A, or B, or C, but we’re waiting for the people to have their say first”. Voters can only “have their say” and endorse (or reject) a coalition of runners-up – and can only give a mandate to a coalition of runners-up – if there is something akin to one actually running in the election. Politicians cannot claim a mandate to govern, if no-one thinks they got what they voted for.

The interplay between each of these factors will be important: the potential coalition of runners-up we saw at the 2008 election fared poorly across the spectrum. If the first coalition of runners-up sees the continuation of coalition not of runners-up, the first factor I raise may not be important. If some future Labour/Green coalition government goes into an election with Labour ahead of National, but and comes out with the Labour Party slightly behind National, but quite far ahead of them when the Green vote is accounted for, people may be more likely to see it as business as usual. But if a party goes into an election with one support arrangement and emerges with an entirely different one, it will justifiably be seen as more opportunistic.

And the extent to which some minor party is seen as calling the shots – playing the major parties off against each other – will factor: even John Key’s illusory moral mandate would only apply to a party that the public might see as capable of playing with both sides. If (as with the Green Party in its current form) the public has no doubt which major party a particular minor party will support, it will be more expected, and less controversial when they do.

Which of these factors will be in play and how this will all play out won’t be known until it happens. This is a mixed blessing – the longer it takes before we have a government headed by the party in second place, the more the idea that the largest party automatically has a right to govern might be bedded in. Conversely, the longer it takes, then the more likely the consensual negotiation-style of politics that MMP was supposed to introduce will have filtered through our politics.

The possibility of a coalition of runners-up is an inherent feature of the MMP voting system. How this affects the New Zealand political environment is something over which both political parties and voters have some control. We have seen that there can be price to pay for a small party that enters a coalition government; will a larger party pay a political price if it tries to govern from second place?

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