Legal Beagle by Graeme Edgeler


MMP Review #2: Dual Candidacy

In a post shortly before the election, I described how I’d come to change my mind on one of the details of MMP – the one seat rule. At about that time, I began questioning another.

Under our version of MMP, candidates can seek election as both as electorate candidates and list candidates. Not all countries with mixed-member systems allow this.

Dual candidacy is one of the things the Royal Commission gave some thought to, and their reasoning has always seemed pretty good: 

In arriving at our proposal to allow parties free rein over who should appear on the lists, we considered excluding constituency candidates from the list altogether or, alternatively, requiring that all list candidates also contest a constituency seat...

Internal party pressures in West Germany have meant have meant that most list candidates in high positions now also contest and are subsequently identified with local constituencies. This has contributed in West Germany to a general lack of distinction between the two types of representative. It also encourages a low turnover of deputies [GE: Members of Parliament] and a consequent stability and depth of experience within the Bundestag.

These characteristics are, however, not without their disadvantages. A lack of distinction between MPs elected in different ways may promote greater harmony within parties in the House, but it does not encourage list members to concentrate on the representation of interests transcending local constituencies. Moreover, while the backup of a list position allows able representatives in marginal seats to be protected, it consequently givers voters little power to remove an unpopular member from the House.

If list candidates were excluded from contesting constituencies voters would retain the power to remove unsatisfactory local representatives and list members could focus on the representation of wider groups and interests, or on national issues. On examination, however, we consider the prohibition of dual candidacies to be undesirable in principle and unworkable in practice. First, the creation of 2 rigidly distinct types of candidate (and hence representative) would be likely to contribute to party disunity. Second, we see considerable advantage in allowing parties to both protect a limited number of their more valuable MPs in marginal seats and reward superior candidates in unwinnable seats. Banning dual candidacies would prevent such practices and be of particular harm to small parties who are unlikely to be assured of any constituency seats but who nonetheless wish to have their high profile members contest such seats. Third, a smaller party would win more list than constituency seats. This may be reversed if that party does particularly well in an election. Under MMP, therefore, a party may lose some of its list members while gaining seats overall. In our view this is an unacceptable prospect if dual constituency/list candidates are banned.

I have never had a problem with backdoor or zombie MPs: those MPs who return to Parliament as list MPs having been thrown out of an electorate. The highest profile example of such an MP is Winston Peters; in 2005, he was rejected by the voters of Tauranga, but he 'snuck' back into the House at number one on the New Zealand First list.

Except, of course, he didn't sneak at all, and pretty much every one of the 130,115 voters who gave their part votes to New Zealand First in the 2005 election was voting for Winston Peters, so to call it 'sneaking' is dishonest, but there's nothing fundamentally different from the position he was in from those of other former electorate MPs saved by the list.

Historically, former electorate MPs who lost the haven't hung around particularly long, usually serving out the term, or and the ones who have stuck around, aren't generally among those people complain about as backdoor MPs (Winston Peters, Damien O'Connor, and Clayton Cosgrove). People may like to think that electorate MPs are voted out of office because they are personally unpopular, but more often, the electorate vote simply follows the nationwide wing. Sometimes a zombie MP may vastly outperform their party in an electorate, so it is foolish to conlude that their loss is a personal slight (Clayton Cosgrove got almost double the votes of the Labour Party in Waimakariri, for example).

Foremost, I have always considered it fundamentally wrong that a few thousand Tauranga voters should be able to veto the democratic choice of more than 100,000 voters over the whole country. But that's a flawed way of looking at it.

If dual candidacy were prohibited and a candidate like Winston Peters contested an electorate, he would have made the call and he wouldn't also be seeking to represent a broader national constituency via the list, so no voter outside of that electorate would even have the choice: there would be nothing to veto.

Second, I've generally considered that this wasn't a matter for legislation, but a matter for the political market to solve. Yes, it was practically impossible to remove a few people rewarded with high list placings, but people who don't want backdoor MPs can choose to vote for parties which don't place at-risk electorate MPs in winnable spots. If a lacklustre, or protectionist, list is a voter turn-off, parties that don't get the message will suffer at the polls until they do. I still quite like that argument, but it now gets weighed against the new ones :-)

But approaching this from the standpoint that I haven't had a problem with back-door MPs, is a mistake. The question we need to address is whether there would be benefits.

During the referendum campaign, Jordan Williams of the anti-MMP group Vote for Change repeatedly argued that Supplementary Member was a compromise between fully proportional MMP, and the majoritarian, electorate-based, First Past the Post (FPP). The usual response to this argument is that it is in fact MMP which is the compromise: between a fully electorate-based system like FPP and a fully list-based system (such a system is used in most countries with proportional representation); we get a proportional result, but also get the strong local representation missing from systems that rely solely on lists.

That's how the argument goes, anyway. But does our current form of MMP really allow for strong local representation? Jordan's greatest complaint about MMP was that it was unfair that when a party lost an electorate it got an extra list seat (and sometimes even the very same MP). He argued that this meant that parties (and MPs) could ignore the wishes of the middle New Zealanders who make up the marginal electorates.

And I think he's right. The tendency may not be great, but it is a factor. We've never had (under MMP or FPP) the Westminster tradition of crossing the floor (I don't think government backbenchers in New Zealand have ever taken out newspaper advertisements opposing government policy, for example), so the effect might not be as great, but it could manifest itself in other ways. But maybe under first past the post – out of fear of losing their jobs, with no plan B – local MPs in marginal or somewhat marginal electorates were more likely to more forcefully put their constituents' views in caucus, and were able to forestall unpopular changes, or obtain concessions. It certainly seems likely that an MP who, if they lost their electorate, would be out of a job, would take that part of the representative function more seriously.

Indeed, as Jordan argued, the very existence of a process of ranking MPs on a list, whereby the higher they are on the list, they more likely they are to keep their well-paying jobs, is an encouragement to not stand up to party bosses – even for MPs who represent electorates. While there are other ways to counter this effect – and I'll discuss the possibility of “open lists” in a future post – it's worth considering this on its own.

If one of the reasons we favour MMP, over, for example, a solely list-based system, is that it provides “strong local representation”, could we increase the strength of that representation by prohibiting dual candidacy?

As usually happens, there are arguments both ways: by having almost all MPs (including those elected via party lists) contest electorate races, they're all contected to an area, and all can play a role in representing it. It's probably reasonable to conclude that some list-only candidates may never face a meeting of voters, and may lose contact with ordinary voters. Allowing dual candidacy breaks down the “faceless list MP” stereotype: people tend to be less faceless, if they're fronting up to you in meet the candidate meetings.

Of course, this presupposes that list MPs having a geographic connection is even a good thing. One of the benefits of banning dual candidacy could easily be that not only do we get stronger local representation, but we may also get list MPs who can focus more on the broader national constituencies they're supposedly there to represent. If we like MMP because it has both list MPs and electorate MPs, couldn't changing it to strengthen the roles of both be a good thing? A major rationale for a list is that it enables parties to bring into Parliament people with particular knowledge and skills that may best be focused on things other than representing constituents. Prohibiting dual candidacy could have the effect of providing greater encouragement to parties to use the list for its full benefit: with 70 electorates (and rising), Parliament will never be short of the type of MP who is skilled at representing local views, and helping constituents with their problems; there is little reason to use the list to protect people whose strengths lie in this area.

Of course, putting MPs' jobs on the line with their local electorates could bring with it the problem of pork-barrel politics, as MPs would have a greater incentive to try to buy their re-election. However, because only an individual MP's continuation in office rests on that electorate, and not the government's continuation, I suspect this wouldn't be a particularly big problem (especially when compared to first past the post).

A major reason why many support dual candidacy is because it allows the major candidates for the minor parties to contest electorates, when they know they have almost no chance of winning them. It is said that dual candidacy is necessary to allow minor parties to raise their profile and seek the party vote. I don't accept this. You don't have to be an electorate candidate to stand up at a meet the candidates meeting and say “I'm not asking for your electorate vote, I'm asking for your party vote”, and frankly, it would actually make a bit more sense to be asking that when you hasn't actually put your name forward as an electorate candidate. Local newspapers and Rotary Clubs are not prohibited from seeking the views of MPs or others from parties only contesting the party vote.

Of course, the major point is that that is not what the electorate vote is for. Under MMP, electorates are largely irrelevant to the make-up of Parliament: they're a purely local race aimed at determining whom local voters believe will best represent their local interests in Parliament. It doesn't seem unreasonable to limit an electorate race to people who actually want to represent the electorate.

At the last election, this seemed to come to head: the deals were more explicit, and seemed to annoy people more. When Damian Christie asked the four candidates featured on the Ōhariu electorate special of TVNZ7's Back Benches to raise their hands if they wanted people to vote for them, only two of them did. Lots of people stand knowing that they won't win, but putting your name forward for election when you don't even want to win seems almost dishonest, and I'm not sure we should be writing our electoral laws to benefit those who wish to run in order not to be elected.

It will no doubt be argued that a policy change like this will favour some parties over others. But that will be true for almost all possible changes to MMP. In particular, prohibiting dual candidacy would potentially hurt a party like the Greens, who wish to use their big name MPs in local races to raise profile for the party vote. But as I've said before, I really don't care about parties. I care about voters and I care about democracy. And designing a system which encourages the creation of voting options no-one wants people to vote for doesn't exactly seem democratic.

And the choice really doesn't change for a party like the Greens: if we ban dual candidacy, then they'll either have to run someone in an electorate who doesn't want to win it – which is, um, exactly what they do now – or they'll focus on the party vote, which is, well, also exactly what they do now. Banning dual candidacy will simply encourage the Greens to become the “MMP Party” they purport to be: focussed on the all-important party vote. As an added bonus, encouraging parties that only seriously wish to contest the party vote to contest only the party vote, may have nice voter education spin-offs, as voters are reminded that it is the part vote that matters overall.

There is a half-way option, which addresses the concern people have with zombie MPs, those who are returned to Parliament after losing an electorate they previously held. Rather than prohibit all dual candidacy, this would only prohibit current electorate MPs from running both in an electorate and on the list. As I've never really had a problem with zombie MPs, I haven't really addressed it. If this is your concern, but you also like that MPs and candidates with no hope of winning electorates get to stand, then it may represent a good compromise.

Where does this leave us? Like I said, I'm wavering, and a lot more than I ever thought I would. The political marketplace may be enough to convince me to leave this all to voters, but if we think strong local representation is an important feature of MMP – and not everyone does – then banning dual candidacy is something we should seriously consider.

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