Last week’s legislative brawl (and our new book!)

I’d like to start this post by thanking the legislature for celebrating the launch of my new book, co-authored with Emily Beaulieu, Making Punches Count: The Individual Logic of Legislative Brawls. Oxford University Press is slated to release the book on Friday, May 24, so to commemorate this grand occasion, the legislature had a big brawl last Friday, May 17, complete with international coverage. Thanks so much for the great advertising!

Our book is about why individual legislators decide to act in more violent and sensationalist ways. It does not attempt to predict when or why brawls break out in particular contexts. Nevertheless, let me say a few words about the reasons motivating this recent brawl.

In just about every brawl I’ve come across anywhere in the world, participants almost always explain their actions in apocalyptic terms. “We can’t allow that bill to pass. It would be disastrous for the country.” “We can’t bow to mob violence; the majority will must be allowed to prevail.” “They are depriving us of our legitimate voice.” “Democracy is on the line.” Once in a while, the stakes actually are that high. For example, 2016 brawls in the Turkish parliament over President Erdogan’s proposed constitutional amendments significantly enhancing the power of the president arguably were a fight over the future of democracy in Turkey. But in the great majority of brawls, the actual stakes are quite a bit lower than the public rhetoric would have you believe. Last week’s brawl here in Taiwan was one of the least necessary that I can remember. I’ve spent a lot of time over the last few days asking myself, “Exactly why are they having this fight?”

The concrete issue at hand is a legislative reform proposal. There are four main components to this. First, the bill gives the legislature investigation power. Over a decade ago, the constitutional court* ruled that the constitution implicitly gave the power of investigation to the legislature. However, there was no enabling law granting that power to the legislature. In other words, all the legislature had to do was amend the organic law to grant itself this power and govern its use. The investigation power would be a powerful tool for the legislature to constrain the executive. During the Ma and Tsai presidencies, the president’s party had a majority in the legislature, and presumably the governing parties did not feel the need to constrain the executive branch. When the elections this January produced a legislature in which the president’s party does not have a majority, it became almost inevitable that the legislature would enact its latent investigation powers. The parties don’t really disagree on whether or not this bill should pass. Of course, the DPP would rather not have the legislature constantly investigating the executive branch, but they seem to understand that this is a legitimate power that the legislature can exercise. The disagreement is mainly on how broadly the provisions are written. This is the kind of thing that, in a normal setting, could be ironed out in committee or in the party negotiations.

* Yes, I know the formal name is the Council of Grand Justices, but that’s so unwieldy and confusing. Can’t we just all agree to call it the constitutional court?

Second, the bill establishes a contempt clause. Again, this is not an unusual clause. If you are going to have teeth in the investigation power, you have to have some sort of coercive clause. What happens if witnesses are called but refuse to show up? What happens if the executive branch refuses to produce requested documents? These are legitimate concerns. The disagreement, so far as I can see, concerns how broadly the clause is written. It is not obvious from the wording exactly what contempt means. It isn’t obvious (to me at least) whether someone with a “bad attitude” or someone whose answer doesn’t satisfy the legislator– as judged by the legislature – is guilty of contempt. There are concerns that people might be forced to reveal national security secrets. Some people have wondered whether this very broad investigation and contempt power might adversely affect foreign companies’ willingness to invest in Taiwan since they can’t be sure their top executives won’t be forced to testify and divulge company secrets. Again, these are the kind of concerns that could normally be addressed in committee or in party negotiation sessions.

Third, the bill would make confirming appointments more difficult. It would require a public hearing for every nomination and require that these hearings last for a minimum of two months. A minimum of three months would be required between each nomination and the confirmation vote. (It is my impression that the TPP, not the KMT is the driving force behind this proposal.) This proposal has gotten far less attention then the other three components. Maybe that’s because it is so obviously dysfunctional. This one might be worth fighting over, but it doesn’t seem to be the center of anyone’s attention. I suspect that, if there were forum with good faith bargaining, the time limits could be eliminated or drastically reduced while guaranteeing a full legislative hearing for all nominations (which the legislature is already supposed to do).

Fourth, the bill would establish a framework for the legislature to invite the president to give an annual state of the nation address at the legislature. President Lai has already signaled that he’s willing to do this. The controversy is that the bill also requires the president to then answer questions from legislators. Basically, the legislature would be requiring the president to show up for interpellation. This is cartoonishly unconstitutional. Under the constitution, the executive branch – that is, the Executive Yuan – is responsible to the legislature, and interpellation is one of the main mechanisms through which the legislature holds the executive branch responsible. The premier, cabinet ministers, and a whole host of other government officials (including my immediate boss, the Director of the Institute of Political Science, Academia Sinica) have to show up regularly at the legislature for questioning. However, the president is not constitutionally responsible to the legislature. He or she is directly elected by the people. The legislature cannot require the president to do anything that is not explicitly listed in the constitution. The legislature is free to invite the president, but it cannot compel him or her. This is a point worth fighting over, except that there’s a much easier way to deal with this. KMT can make its point by passing the law, the DPP can register its strident opposition through press conferences and various other channels, and then they can let the constitutional court sort out the mess by striking it down.

My point is, there doesn’t seem to be a compelling reason that this brawl has to happen. The KMT/TPP majority probably could have gotten most of what it wanted through the normal legislative processes. They are having a fight because someone wanted a public fight.

The classic pattern of brawls involves opposition disruption. The majority wants to do something, the minority uses every obstruction tactic available to block it, the frustrated majority insists on imposing its will and turns to questionable (but arguably justifiable) tactics, the indignant minority protests the controversial majority tactics as a violation of democratic norms and tries to disrupt legislative processes through physical action (often blocking some strategic location such as the Speaker’s chair) in an attempt to stop the majority agenda, and individual legislators up the ante by employing more violence than might seem necessary.

Observers of the current controversy in Taiwan will notice one of those steps is missing. The majority conspicuously skipped the step in which the minority uses all kinds of tactics to slow the process down by not conducting a serious committee review of the bill and skipping the party negotiation stage. Rather, after a cursory committee review, they sent it straight to the floor for passage. They also used amendments to rewrite most of the critical clauses so that legislators often did not know in advance what the bill would actually say. Then the majority assumed the minority would use physical disruption on the floor, so they camped out overnight and preemptively occupied the strategic spot of the Speaker’s podium. Had to speed up the process on the floor, they decided not to take roll call votes for each item. Instead, each vote was taken by raising hands, which takes much less time but is far sloppier. (One pundit sarcastically commented that one time the 108 members present somehow cast 110 votes.)

My interpretation of these choices is that they reflect years of pent-up frustration. The KMT has been rolled again and again in the legislature for the last eight years. They have lost and lost and lost. When they emerged from the election with a plurality of seats, they needed to do something dramatic to reward their loyal supporters for sticking by them through the tough times. They didn’t just need to pass something; they needed to pass something that would cause the DPP pain – they needed to extract the proverbial pound of flesh. Ramming a bill down the DPP’s throat and giving them no opportunity to amend it or even comment on the official record has to be cathartic for the KMT and its supporters.

The DPP opposition to the bill seems to be as much about these strong-arm tactics as the bill itself. Like many minority parties in many legislatures facing such tactics, they haven’t hesitated to accuse the majority of killing democracy. So let’s step back and briefly address this argument. There are lots of normative reasons that democracy requires full deliberation of proposed bills. The legislature is the body representing all of the people, so it makes sense that all the people should be heard. The legitimacy of the eventual result depends on the losers feeling like they have had a chance to fully air their objections. And not least, the rule of law commands that certain procedures be followed. Nevertheless, in actual legislatures around the world, majorities commonly bend these rules in order to pass their agendas in the face of intransigent opposition. (Remember the Trump tax cuts, when the Senate passed a bill involving billions of dollars and many of the senators who voted for it hadn’t even seen the draft of the bill? These things happen in democracies.) The working rules of the legislature are not sacrosanct; they can be suspended or changed. The only principle that is inviolable is that the floor must agree with something for it to be passed. If your side can muster the votes, it is legal. It may not be very legitimate, but that is a political matter for the voters to ultimately decide.

In other words, democracy is not dying here in Taiwan just because of this parliamentary ugliness. Democracy is a lot more resilient than that. This isn’t a paradigm of good democratic processes, but no one doubts that the KMT/TPP majority actually has enough legislators who are willing to vote for this bill. If the majority try to use these tactics on a regular day-to-day basis for the entire term or even for the rest of this session, it will eventually produce a crisis because not enough things will get done and too many voices will be ignored. But for a single bill, well, we’ll get through this.

The focus of our book is on the last step in that pattern of opposition disruption brawls. We are primarily interested in why individual legislators choose to use violence. We reject the idea that is just a bunch of hot-headed brutes who can’t control themselves. We argue that they are strategic actors pursuing specific goals. In particular, they are trying to send (costly and thus credible) signals about themselves to outside actors who can help their political careers. The target audience and the content of the signal vary according to the different contexts in different countries. In Taiwan’s context, we argue that they are trying to send signals to strong supporters of their party in the general electorate that they are good party soldiers and will work energetically for party goals. Brawls are fundamentally a tool for political communication.

One of the implications of this theoretical framework is that some legislators are more likely than others to try to engage in violence. The key is NOT how capable they are of violence. It is not the case that the roughest, toughest legislators are the ones who dominate brawls. (If that were the case, the KMT would never have lost a brawl when Huang Chih-hsiung 黃志雄, an Olympic silver medalist in Taekwondo, was in the legislature. Heck, the DPP would never have dared instigate a brawl; it could have been lethal.) Rather, it is the people who most need to send the signals (and who see a receptive target audience that would find the signal informative) who are the most likely to engage in violence. These tend to be younger legislators who don’t have established reputations or legislators whose loyalty is in doubt.

Let me illustrate this point by looking at two of the most prominent participants in this recent brawl. The first is DPP legislator Puma Shen 沈伯洋. The parties are struggling for control of the Speaker’s chair. If the DPP can keep Speaker Han away from the chair, he cannot pass any legislation. KMT legislators had occupied this space since early in the morning in order to ensure that Han could preside over proceedings and gavel everything through. Parties often try to storm the podium by coming through one of the two doors behind the dais, so the party defending the Speaker’s chair will usually block these doors with piles of chairs have human walls. The other party has to figure out how to get through these barriers. As you can see in this video, Shen climbed up over other DPP and KMT legislators and tried to stage-dive onto the desk in front of the Speaker’s chair. KMT legislators, who were trying to deny him this territory, happily pushed him on through, so that he kept going forward all the way over the desk and onto the floor on the other side. Shen apparently landed badly injuring his head, and EMT workers were called in to take him to the emergency room at nearby NTU hospital. (You will be shocked to learn that he – like the other five people who went to the emergency room during this brawl – is fine.)

The reaction on the DPP side, both among other legislators and online, was outrage an indignation. The angrily pointed to KMT legislator Chiu Chen-chun 邱鎮軍, who they said violently pushed Shen down with an intent to injure him, reminding everyone that Chiu (reputedly) has a background as a gangster. For the rest of the day, you could hear DPP legislators screaming periodically about KMT violence and how Shen and several others had been sent to the hospital.

That wasn’t my reaction. Since our book says that legislators use violence to communicate information about themselves to target audiences, my question was, what was Shen trying to achieve? Our interviews have made it quite clear that legislators do these things of their own initiative; the party caucuses don’t order particular legislators to do violent things. I’m fairly confident that Shen voluntarily decided to do his stage dive and put himself in a dangerous situation. Why did he feel like this was a good idea?

We have said that, in Taiwan’s context, brawlers are (almost always) trying to send a message to loyal party supporters in the electorate that they are good party soldiers who can be relied on to energetically pursue party priorities. Shen is a first-term party list legislator who is mostly famous for his academic work relentlessly uncovering Chinese attempts to spread disinformation against Taiwan. He doesn’t have a particularly well-known history inside the DPP, and we don’t really know his opinions on issues other than internet information warfare. He was (successfully) sending a message that he is not only an expert on a specific topic, he is also a reliable DPP legislator on other topics as well. Given the way he has been lionized online and the higher media profile he has enjoyed in the past few days, I think he may have just elevated himself from one of several anonymous party list legislators to a figure to watch in the future.

The other person I want to look at is KMT legislator Hsu Chiao-hsin 徐巧芯. Majority party legislators have a conflicted relationship with brawling. Minority party legislators want to slow everything down and show that they are fighting the good fight. It’s pretty simple for them. But the majority party has other, more important goals. They have an agenda to pass. What they don’t want is for the legislature to get bogged down in a time-consuming melee. So majority party legislators can’t just start shoving or slugging someone. That might not send the signal of being a good party soldier; it might tell the target audience that you are an oaf with lousy political judgment. So how do you let your target audience know that you’re a good team player?

Hsu came up with a solution I have not seen before. She was on the dais occupying the strategic territory for most of the day. Sometimes she was in the middle right next to the speaker, and sometimes she was off to the side. She was involved in a few of the scuffles, but that’s not why she got so much media attention. When she was off to the side where the cameras would not normally show her, she pulled out a children’s recorder and calmly started playing. This is arguably breaking the rules since noise-making devices like air horns are banned, but a recorder is hardly the same as an air horn and anyway the speaker wasn’t enforcing this rule against her. So she cleverly drew attention to herself, letting people party supporters know that she was on the front lines, being a good party soldier, and ready to act when needed.

Why did Hsu feel she needed to send this message? She is a first term legislator, so she has all the normal pressures of establishing a firm reputation. However, in her case, there’s another factor. Some of her family members have been involved in a financial scandal. I will admit that I can’t follow all the details of this scandal, and I can’t find a good summary to explain what’s going on here. But that’s not really important for our purposes. What’s important here is that this scandal sends a message that something other than KMT goals might be her top priority. It’s possible that she cares more about money and her family than her party. So here she is, in the context of a political fight, demonstrating that she is actually dedicated to KMT goals. “Look at me,” she is saying, “I AM a fighter for the KMT. I won’t hesitate to get involved in a brawl if that’s what my party needs.”

(Aside: This book has made me such a cynical observer of legislative conflicts!)

Let’s finish (this long rambling post) by going back to the politics of the legislative reform proposal. I think the KMT/TPP majority made a mistake by preempting DPP obstruction. Without intransigent obstruction, it is much harder to justify strong-arm tactics. I think the KMT/TPP majority was ready to ignore (or even jeer at) DPP protests. I don’t think they foresaw the large protests that would form outside the legislature in the streets in reaction to their tactics. Several groups have organized supporters, and the protests seem to be getting bigger and bigger. I saw one media report claiming 30,000 people were there on Tuesday. I’m skeptical of that number, but even if it’s only a third that size, it is substantial. I haven’t been able to go to any of the protests in person, but from what I can tell the focus of the protests is almost exclusively on procedural flaws rather than the substantive content of the proposals. Ten years after the sunflower movement protested against black box legislation, here we are again with people demanding the right to scrutinize and debate controversial legislation. The irony of Huang Kuo-chang’s 黃國昌 role is lost on no one. Ten years ago, he was out in the street leading the calls for transparency. Now, as the floor leader of the TPP, he is involved in writing last minute amendments that legislators vote on with a show of hands (rather than recording names). He has become the black box. Perhaps the KMT/TPP coalition wanted to show that they are now the majority, and they can do what they like. However, the legislature is not the only political arena that matters. Public opinion also matters. The KMT/TPP will almost certainly finish passing this bill, but digesting it might be more challenging than they expected. Hopefully, they will learn to chew their food more slowly and thoroughly in the future rather than simply trying to swallow it all in one greedy gulp.