The Coming LY Reforms and Tyranny

We’re about to move into the October phase of the September Strife.  Things are clearly behind schedule according to President Ma’s original timetable.  Today I want to talk about one of the agenda items that he probably thought would be well on its way to resolution by now.

The first phase of the plan was to remove Wang Jin-pyng as speaker.  This hasn’t happened yet, and the KMT has reacted by trying to hollow out Wang’s power.  However, even if Wang had been eliminated, I think legislative reform was always phase two of the master plan.  Ma might have been happy to build a new system around a new powerful speaker, but (for now) he is also happy to try to build a new system around the party caucus leaders.  The important thing is to rewrite the rules so that the KMT can push its legislation through more quickly and with less alteration.  The KMT leadership has thrown out a few ideas, including eliminating or making public the inter-party negotiation, increasing the minimum size of a party caucus from three to four, referring anyone engaged in fighting to the disciplinary committee, and a couple others that I can’t remember right now.  Rather than discuss the impact of specific proposals, what I want to discuss in this post is the general idea of changing the rules.  Is it a violation of democratic procedure to change the rules?  What minority rights are protected?  Does the majority have a right to rule?  In discussing this, I’m going to draw heavily on political science literature from the US Congress.  I don’t necessarily think that the American answers are the right answers for everyone else.  However, students of the US Congress have wrestled extensively with the question of minority rights vs. majority rule, and we might be able to learn something from them.

 

Perhaps the most dramatic and important rules change in the history of the US House of Representatives occurred in 1890.  Before 1890, minorities regularly used procedural maneuvers to thwart the majority.  In fact, minorities were so strong that a common rule of thumb was that a two-thirds majority was necessary to get anything done in the House.  The most famous and potent weapon was the “disappearing quorum.”  A quorum is the number of legislators who must be present to conduct business.  The US Constitution sets the quorum at half of the membership of the House.  The Constitution also gives the speaker the power to compel members to attend, but it does not require that members actually vote.  The first member to insist on the right not to vote was John Quincy Adams in 1832.  (Note: Adams was president from 1824-8, and he returned to the House after he lost the 1828 election.)  Minorities quickly realized that the right not to vote could be useful.  The House has historically had fairly good attendance rates, but there are almost always a handful of members who are absent.  If the majority party could not mobilize enough members voting “yes” to form a quorum by itself, the minority members would simply refuse to vote.  Imagine if the House had 100 members, and the majority party had 55.  If 6 majority members were absent, the vote would be 49 to 0 in favor.  However, the minority would point out that there was no quorum, so the bill could not be passed.  Remember, the maximum number of votes the minority could mobilize was 45, so even though the yes votes outnumbered the no votes, the rules allowed the minority to block the bill.  If the majority party was even a little divided, the rebel faction could easily unite with the minority party to block things.  For over 50 years, every minority party, whether Democrat, Whig, or Republican, made heavy use of the disappearing quorum to frustrate majorities.

In 1890, the new Republican speaker, Thomas Brackett Reed, decided to change the rules.  After the speaker election, Reed proceeded to other pressing business.  Usually one of the first items of business is to adopt a new set of House rules.  Reed postponed that decision and turned instead to resolving a disputed election.  In those days, there was usually a disputed result or two.  The House has the power to resolve these disputes, and they always voted on straight party lines.  Since the Republicans had the majority, they wanted to seat the Republican.  The Democrats refused to vote, and the number of votes cast was one fewer than half of the membership.  Democrats objected that there was no quorum, so the result could not stand.  However, Reed asked the clerk to count the roll to see if a quorum existed, and he instructed the clerk to count members present but not voting toward the quorum.  (If I remember correctly, Reed also instructed the Sergeant at Arms to lock the doors so that Democrats could not leave the chamber.)  The House exploded.  Democrats protested that Reed was trampling on the Constitution by ignoring their fundamental democratic right not to be counted.  Why, they asked, should a minority be required to help a bill that they opposed become law?  If the majority wanted it passed, all it had to do was mobilize all of its members in support.  Nonetheless, Reed insisted, and he was supported by his Republican caucus.  A handful of Republicans may have opposed this new rule, but, in the context of a disputed election, they had little choice but to vote the party line to uphold Reed’s ruling.  A few days later, Reed presented a new set of rules which codified this new ruling and also added several other powers to the speaker’s arsenal.  Almost overnight, the House was transformed into an ultra-efficient majoritarian body.  Reed became widely known as “Czar Reed.”  Democrats swore they would repeal the “undemocratic” measures.  However, when they returned to power, they discovered that the old rules led to quite a bit of frustration ,and they ended up adopting a set of rules very similar to Reed’s Rules.

 

So how should we think about this rules change?  The minority claimed it trampled on their democratic right not to vote, and it was lambasted as a step toward tyranny.  From a comparative point of view, this might seem strange to us.  Is there a right not to vote and to not have one’s presence counted?  This “right” is absent in most of the democracies I am aware of.  It only seemed like a right because it had been the rule for nearly 60 years and people were used to it.  When Reed changed the rules in 1890, the US House did not suddenly cease to be a democratic institution.  The majority party (especially the speaker) was empowered, to be sure.  But this was simply another option in the wide array of possible (democratic) rules choices that the House could choose from.  Looking back from today, the disappearing quorum seems a somewhat bizarre institution and anything but an intuitive fundamental democratic right.

Most political scientists take a decidedly hands off approach to normative questions about minority rights.  Rather than insist that a certain tactic is a protected democratic right, the usual approach is to suggest that minorities have the right to try every obstructionist tactic allowed to them under the rules.  When majorities feel that minorities are too successful in their obstruction, the majorities may try to alter the rules to limit obstruction.

The more interesting question is, when will majorities try to revise the rules?  The answer from the US Congress is that rules are revised when (1) the majority is small, and (2) the majority party is internally cohesive.  When the majority is very large, it can usually crush any obstruction and pass its legislative agenda.  Even if the majority party is internally factionalized, with a large enough majority, it can usually prevail.  However, when the majority party is barely large enough to form a majority, it may have more difficulty getting things done.  The temptation for the minority to use obstruction is much stronger, since they are already very close to winning.  Rules that reduce these opportunities will be very helpful to the majority.  However, the majority only passes new rules when it is internally cohesive.  If the party is divided into factions that don’t trust each other, the non-mainstream faction will not want to give the mainstream faction too much power.  They might prefer to keep rules that allow them to block the mainstream faction.

This borrows from a Madisonian view of democracy.  In Federalist #10, James Madison argues that a large and diverse republic will produce representatives with a variety of preferences.  These representatives will check each other to keep any one interest from dominating.  As Madison famously wrote, “Ambition must be made to counteract ambition.”  Diversity of interests within any majority is ultimately the best guarantor of minority rights.

I am not entirely satisfied with this formulation.  It seems to imply that the minority has to be satisfied with whatever the majority gives it.  When asked what he considered minority rights to entail, Czar Reed replied that the minority has the right to collect a paycheck.  Similarly, I have heard British politicians say that the minority has the right to complain.  This seems too stark to me.  While I think that determined and cohesive majorities should generally prevail, I also think that minorities must also be allowed to participate meaningfully in the process.  Democratic legitimacy requires that opponents be given the opportunity to oppose, to air grievances, to struggle, and to propose alternatives.  Another way of thinking about this is that obstruction forces the majority party to be sure it really wants a particular policy.  If the minority can strenuously resist, the majority has to show that it is equally determined to support a bill.  Bills that have only tepid support or on which the majority party is internally divided will die.  That is, obstruction allows the majority to show that it has not just numbers, but also intensity of support.

I am advocating a very squishy idea.  Exactly how much opportunity for obstruction is needed for the opposition to be able to meaningfully participate?  I don’t have a good answer to that.  No single rule change will violate this prinicple, yet a large enough package would.  Moreover, the answer may be different in Taiwan than in the USA.  In the USA, minorities in the House can try to influence politics in the Senate, the executive branch, the courts, or in the individual states.  In Taiwan’s unitary and more centralized system, the unicameral legislature may be the only meaningful game in town for a minority force.  This implies that minorities need a larger set of obstructive tools in the Legislative Yuan than in the US House to yield the same degree of legitimacy.

 

The main point I want to make in this post is that changes to the legislative rules are not inherently anti-democratic.  If (when) the KMT introduces a set of proposed changes, we will hear some very shrill rhetoric claiming that the KMT is trying to suppress the other parties and bring back authoritarianism.  This will be overblown.  Just as the disappearing quorum was not a fundamental democratic right, neither is (for example) the system of inter-party negotiations.  Rules changes are a basic feature of the process in democratic systems as legislatures evolve over time.  Sometimes they empower the majority party, and sometimes they help minorities.  As long as they do not completely emasculate the minorities and preclude meaningful participation in the political process, rules changes generally don’t mean the end of democracy.

 

Disobedient KMT legislators?

Here’s an interesting bit of news.  KMT legislative party whip Lin Hung-chih 林鴻池 announced that the legislature will not take up the nuclear referendum this session.  Lin explained that the Ministry of Economics has not yet produced a safety report, and the legislature cannot be expected to act before that report comes out.

This is interesting to me because my working assumption is that the current KMT political struggle is all about the executive branch demanding that its party members in the legislature toe the party line and pass the executive’s legislative agenda.  According to all accounts, there are three big items on that agenda: the services trade agreement, the nuclear referendum, and the annual budget.  Lin has just told the executive that Santa isn’t giving them everything they want for Christmas this year.

This comes after Ma announced the KMT would rearrange the coordinating meetings between the party, executive, and legislature by replacing Speaker Wang with Party Whip Lin.  Apparently, before the first meeting in which the president, premier, vice-president, and party secretary-general would have told him what to do, Lin pre-empted them by publicly announcing what he would not do.

Ma’s inner circle may have thought that Wang was behind all the obstruction in the legislature and that things would move much more smoothly once his power was hollowed out.  However, if the underlying problem was that many KMT legislators don’t want to be associated with unpopular executive proposals, Ma may be in for a rude awakening.

the root of it all

A few posts ago, I expressed uncertainty about why Ma 馬英九 chose to attack Wang 王金平.  After listening to a couple of weeks of shrill rhetoric, I think I have a better guess about what is behind this all.  Please be aware, I am still not sure.  I consider these to be working hypotheses.  As new information comes to light, I will reconsider whether they are still tenable.

In my earlier post, I speculated that the changing composition of the KMT’s legislative caucus might have undermined Wang’s power base.  The idea was that the caucus was becoming increasingly dominated by legislators with a stronger Chinese identity.  Since Wang is commonly referred to as the leader of the “Taiwan KMT,” it was possible that his core support had eroded away.  After listening to various statements from deep blue legislators, I have rejected this hypothesis.  Again and again, legislators who I consider to have a strong Chinese identity have decidedly not turned their backs on Wang.  Instead, the usual reaction is to say something respectful and mildly supportive of Wang while expressing frustration and bewilderment at the power struggle.  To me, it has looked like they are siding as much with Wang as possible without opening themselves up to retaliation from Ma.  At first, the messages of support for Wang were extremely tepid, but they seem to be growing stronger as public support for Wang becomes clearer and clearer.  I don’t think the question of Chinese identity vs. Taiwanese identity is at the core of this conflict, and I’m fairly sure it certainly isn’t shaping a new anti-Wang faction within the KMT legislative caucus.

So why did Ma attack Wang?  Two plausible answers have emerged.  One is the conspiracy theory: KMT party elders were scheming to gut Ma’s power, and Ma’s attack on Wang was a preemptive strike.  This theory is oddly appealing to me, but I ultimately don’t quite buy it at this time.  I’m leaning toward the other story, which is a mishmash of personal grudges, executive vs. legislative worldviews, and opportunistic behavior.

First, let’s look at the conspiracy theory.  The basic story is that several KMT elders were conspiring to force Ma to relinquish his control over the party at the upcoming party congress on September 29.  Four families are said to be behind this conspiracy, and all four have a senior patriarch and a younger active politician.  The four elders are Lien Chan 連戰, Hau Pei-tsun 郝柏村, Wu Po-hsiung 吳伯雄, and Kao Yu-ren 高裕仁 高育仁.  Their ambitious progeny are Sean Lien 連勝文, Hau Lung-pin 郝龍斌, Wu Chih-yang 吳志揚, and Eric Chu 朱立倫.  Collectively, that is an impressive list of KMT royalty.  The four families supposedly wanted to force Ma Ying-jeou to publicly accept responsibility for the 2014 local elections.  If the KMT did poorly, Ma would be obliged to step down as party chair, and the four families wanted to replace him with Wang Chin-pyng.  This would give them control of the party and allow them to determine nominations for the 2016 presidential and legislative elections.  Of course, simply accepting such a proposal would immediately label Ma as a lame duck, and his power would inevitably ooze away as the 2014 election approached unless, by some unexpected twist, the KMT’s popularity somehow reversed its downward slide.  Since Ma has two and a half years left in his presidency and presumably wants to accomplish a few more things in that time, he had to stop this plot.  Removing Wang accomplished two things.  First, it eliminated Wang as a vehicle to replace Ma.  Wang is generally liked within the party, and any alternate vehicle would almost certainly be more controversial.  Second, it sent a clear message to the four families to back down.  Ma was still powerful and dangerous, and they would do well not to antagonize him.

Note that the conspiracy theory is not predicated on a Chinese/Taiwanese cleavage.  While Ma and Wang are supposedly leaders of the Chinese KMT and Taiwanese KMT, the cleavage breaks down when you look at the four families.  I don’t know much about Kao Yu-jen’s stance, but Lien Chan and Wu Po-hsiung are two of the very few politicians more pro-unification than Ma and those two pale next to Hau Pei-tsun.  If those three are on Wang’s side, which side is the deeper blue?

I’m not usually fond of conspiracy theories, but I find this one oddly attractive.  There are three aspects that appeal to me.  First, this story provides a clean motive for Ma’s attack.  This political struggle is first and last about who will hold political power within the KMT.  One group of politicians (the four elders) ran the party during President Chen’s first term, but Ma used his popularity with the general public to wrest control of the party away and push them to the sideline.  Now, with his popularity waning, they are counter-attacking.  If they can get control of the party, they can put their sons into power and control the KMT for a new generation.  I have always thought that Lien (certainly not Wang) was the biggest threat to Ma’s power, and this conspiracy theory is built on that idea.

Second, I love the idea that elections play a crucial role in this conspiracy theory.  One of the worst things about the new electoral calendar is that the new president and legislature go nearly three full years without any elections.  A lot of policy-oriented people love this, because the new regime can act freely and implement policies it considers necessary for a period of time without worrying about whether they are popular with the public.  I hate it for exactly the same reason.  In a democracy, I think it is a bad thing for a government to try to force through unpopular policies.  If you can’t convince the public that a certain policy is a good idea, you probably need to rethink the policy.  This long period with no elections is not a major problem if the party in power remains popular.  However, if there is evidence that the public has withdrawn its support, the government may lack sufficient legitimacy to implement major policies.  Just this morning, the TSU party chair Huang Kun-huei 黃崑輝 called for Ma to stop all negotiations with China (especially over setting up representative offices on the other side) because a president with only 9.2% satisfaction has no legitimacy to represent the Taiwanese people in negotiations with China.  I partially share Huang’s concern.  The KMT government has been miserably unpopular since the beginning of Ma’s second term, and it sometimes seems oblivious to this.  Ma is moving ahead with major policies, and I’m not sure that public support still underpins these efforts.  Would he dare to try to pass the service trade agreement if there were an election two months from now instead of fourteen months away?

Huang’s argument is not entirely unfair, but a low satisfaction rating doesn’t necessarily mean that Ma has lost public support on China policy.  It could be that former supporters are happy with Ma’s China policy but unhappy with other things, such as political infighting, corruption scandals, or public encroachment on private property.  What Ma needs is an election to either renew his legitimacy or politically emasculate him.

I initially had a similar reaction to the Wang episode.  Ma would never have dared to try to assassinate Wang if an election were only two months away.  However, since voters will probably have moved on to other concerns in fourteen months, Ma was free to plunge the party into a round of vicious infighting.

However, the four families theory completely reverses this conclusion.  In the conspiracy theory, Lien, Hau, and the others are relying on public opinion to punish the KMT in the 2014 local elections.  That is, Ma’s poor performance, public disaffection, and an expected backlash at the polls combine to form the lever that the elders can use to pry power away from Ma.  If Ma were still a popular president, they would have no opportunity.  In fact, rather than needing to strike out to stop the plot, he would welcome the opportunity to take credit for an expected KMT victory and increase his own power.  This political infighting isn’t happening because actors are unconcerned about elections; it’s happening precisely because they are all thinking squarely about elections!  In short, the four families conspiracy theory implies that politicians can never stop worrying about public support and future electoral outcomes!  (Imagine me weeping tears of joy.)

The third reason I am attracted to the conspiracy theory is counterintuitive to me.  I would like it to be true because it suggests China is cultivating a new generation of collaborators within the KMT.  (What???  Clearly, this one needs some explaining.)

While the conspiracy theory was circulating through the TV talk shows, one scene kept popping up over and over.  Xi Jinping 習進平 was receiving guests at some function, and Lien Chan was standing by his side.  The guest they all showed was Lien Chan’s son, Sean Lien.  Lien Chan said something to Xi Jinping, presumably introducing his son, the two shook hands, and the younger Lien moved off.  There was no audio, but the visual was quite evocative, if you wanted to attach some meaning to it.  If you choose to see it as an innocent event, it was simply a polite formality.  However, if you want to read more into it, it looked like Lien was presenting his son to the Chinese leader as a future important person in Taiwan politics who the Chinese would do well to be aware of.  If you want to go even further, from the Chinese point of view, you could see it as China finding a new client in Taiwanese politics to build their Taiwan policy around.

This is a big problem for Ma Ying-jeou.  His presidency is built around the idea that he can deliver better relations with China.  He certainly would reject the notion that he is a Chinese client or collaborator (as would the Liens).  He sees himself more as a partner in an effort to reshape cross-strait relations.  To this point, Ma and Hu/Xi have had a fruitful partnership, with each seeing the other as a helpful ally.  However, the Sean Lien clip seemed to imply that China has moved on.  Maybe Ma is no longer their Great Hope.  Maybe his star has faded, and they have started to look for another Taiwanese politician to work with.  One can easily imagine that if they are looking at Sean Lien, they are also looking at other next-generation KMT leaders.  That would be disaster for Ma.  He still has two and a half years, and he needs Beijing to think that all political efforts must go through him.  If China is exploring alternate conduits, Ma is already a lame duck.  In this variant of the story, Ma had to counterattack forcefully to publicly reassert his authority not just to other KMT members but also for Beijing to see.

Why do I find this comforting?  It paints Ma as dispensable, and it therefore reduces the urgency to get things done.  When Ma was elected president, I was worried the Beijing might have unrealistic expectations.  After all, Ma could not afford to stray too far from public opinion, and Beijing might be disappointed when he did not deliver unification.  The scary point was that Beijing seemed to have marked Ma as the Great Hope.  Ma was the most pro-unification politician they could reasonably expect to be able to win the presidency.  If they couldn’t get unification under Ma, when would they ever get it?  And if they couldn’t get peaceful unification from the elected politicians, would they be more inclined to go to the military option?  The conspiracy theory allays that fear.  Beijing can now dream about a future working with the sons of Lien Chan, Hau Pei-tsun, and/or Wu Po-hsiung, and they know that those three are ardently in favor of unification.  (The lineage is just a bonus for the blatantly pro-nepotism Chinese regime.)  They don’t have to resolve the question of Taiwan’s status now because there may be another pro-China president in Taiwan sometime in the near future.  In fact, if the KMT will always produce politicians eager to become Chinese clients (and I’m sure that’s how the Chinese see them), China can even afford to wait out a DPP president or two.  In game theoretic terms, they have learned that this is a repeated game, not a single-shot game.  There is a future they can dream about, and that means they don’t have to solve everything in the present.

While I’m attracted to the conspiracy theory, I don’t quite buy it as the actual root cause of the current political struggle.  There are two main reasons.  First, there seems to be no concrete evidence for it.  As far as I can tell, it originated in the swirl of talk shows in the first few days of the crisis.  Unsubstantiated rumors are common in that forum, and they are often completely false.  The story really hit the mainstream when the United Daily News put it on the front page.  However, the UDN’s only source was “media reports.”  In other words, I think they were basing it on the talk show rumors.  No one has been able to trace this story back to a concrete source, not even an anonymous concrete source.  If the four families were really plotting to emasculate Ma at the party congress, they would have to organize a lot of people to be ready to vote.  Word would leak out, and we would presumably have at least one person willing to talk about it.  Instead, everyone, including members of the four families, has vehemently denied that any plot exists.  So no evidence, no conspiracy.  Or maybe not.  As one of my friends reminded me, if you are plotting to assassinate the king, you don’t tell anyone beforehand.  If word leaks back to the king, the assassination is doomed.  You have to swear everyone to absolute secrecy if the plan is to work.  (For example, Ma’s strike against Wang was a complete surprise to everyone.)  Still, the complete lack of evidence seems to me a major blow against the conspiracy theory.

The second problem compounds this lack of evidence.  As my brilliant wife pointed out, Ma’s team might be playing us for suckers.  As I pointed out above, the conspiracy theory explains why Ma had to launch a preemptive strike.  In other words, it’s not his fault!  Instead of blaming Ma for proactively causing this vicious and unpopular party infighting, the conspiracy theory points the blame elsewhere and recasts Ma as the innocent victim.  He didn’t want to fight, but he was forced to!  And how did this story leap from the crazy lunatic periphery into mainstream consciousness?  It was the front page story on the United Daily News, which has loudly and enthusiastically supported Ma throughout this struggle!  Did the Ma camp plant the story to make us sympathize with him?  That seems as likely to me as the possibility that the story is actually true.

So without any concrete evidence in favor of the conspiracy theory and a very good reason to be wary of it, I am forced to search for another explanation.  Depending on how events in the KMT party congress unfold in a few days, I may revisit the conspiracy theory, but for now I’m leaning against accepting it.

I’m going to label the story that I’m leaning toward as the mishmash theory, because it combines several of the other explanations floating around into one (hopefully) coherent story.

The first ingredient is the lingering grudge.  Listening to various pro-Ma statements, I have become convinced that there is a long-term feeling within Ma’s camp that Wang is a bit corrupt.  Wang is, of course, deeply embedded in factional politics in Kaohsiung, and local factions have a well-deserved reputation for corruption.  Moreover, Wang has been the leader of the central and southern KMT legislators for years, and this is another way of saying that he is the leader of the local faction wing of the party.  It is not hard to imagine that he has done countless favors for people of questionable ethics over the years, and many within Ma’s camp might see him as representing institutionalized corruption.  This apparently spilled out into the open in the 2005 party leadership and 2007 presidential nomination struggles, when Ma claimed to be fighting against black and gold within the party.  Of course, Ma publicly made peace with Wang and has been working with him over the past six years.  However, I sense now that this may always have been a very tense relationship, or at least that Ma and his people considered it a necessary evil to accommodate someone who they thought practiced and/or enabled systematic corruption within the KMT.  I think of this lingering distaste as a background factor.  By itself, it would not have been sufficient to spur an attack.

The second element is the critical one.  It looks like the executive and legislative branches have very different views of how politics are operating.  In particular, the executive branch seems to think that the legislature is not acting promptly enough on its legislation, and, when it does act, it is amending bills far too much.  Further, the executive branch is focusing its dissatisfaction on Wang Chin-pyng.

The clearest statement of this that I have seen comes from the United Daily News editorial from last Tuesday, September 27, titled 『王金平與台北地院的「80/20法則」­』。  I suspect this editorial had indirect, and maybe even direct, input from the presidential office.  It is written from the perspective of the executive branch and complains that Wang routinely negotiates away most of the social benefits of the laws that the executive is trying to pass.  What he doesn’t negotiate away, he collects for himself.  He then uses these resources to consolidate his own power within the legislature.  The editorial complains that the legislature is no longer a collective decision making body.  Instead, Wang decides everything unilaterally.  Behind the closed doors of the inter-party negotiations 政黨協商, Wang decides what bills will come to the floor, what amendments will be allowed, how much the opposition parties will be allowed to protest, and everything else.  Because Wang has so many resources at his disposal (from the “tax” he takes on every bill), he can dictate terms to all the parties.  Thus, Wang is systematically siphoning away benefits from the general public to further his own grip over the legislature, much to the chagrin of the executive branch.

These charges don’t all quite make sense to me.  For example, I think it is probably unrealistic to think that Wang dominates the interparty negotiations.  The various parties probably play the dominant roles.  However, one can see where some of the complaints come from.  The executive branch sends lots of bills to the legislature, and the legislature doesn’t simply pass them all.  I looked at the success of government bills several years ago.  Even in the Lee Teng-hui era, with unified party control over the executive and legislature, only about 50-60% of government bills were passed by the legislature.  Of those, most were amended at least a bit.  In other words, most of the legislation written by the executive branch either died in the legislature or was changed significantly.  I don’t know what the success rate in the current legislature is, but I imagine it is similar.  From the executive point of view, this is awful.  They spend years researching bills and putting together a coherent bill that they believe properly balances the various legitimate interests in society.  Then legislators, worrying about their parochial (read: corrupt) interests, either block those bills or rewrite them and destroy that careful balance.

I’m not sure why they have focused all their frustration on Wang.  It might feed back into the idea (see above) that he has always been the center of corruption in the legislature.  Since he is at the center of all negotiations in the legislature, they could make the leap to believing that he must be responsible for all delays and amendments (which they apparently interpret as illegitimate attempts to extract resources).

There are also a couple of anecdotes (from different sources) about Wang upbraiding KMT floor leaders.  He is supposed to have reprimanded both Lin Yi-shih 林益世 and Lin Hung-chih 林鴻池 (at different times) for claiming credit with the executive branch when some legislation was passed but blaming Wang for obstruction when legislation did not get through.  These stories support the notion that the executive branch might blame Wang for all bad things.  After all, the KMT floor leaders may have been presenting the events to them in exactly that way.

One does not get this same sort of view of Wang as the corrupt dictator of the Legislative Yuan from KMT legislators.  As I mentioned above, most KMT legislators seem rather bewildered in their comments, as if they don’t quite understand just why the executive branch has chosen to launch this assault on Wang.  I’ve been listening very carefully for any KMT legislator to suggest that Wang wasn’t expediting legislation through the process efficiently enough, and I haven’t heard anything like that.  Instead, they seem to think they are doing a responsible job, carefully considering the drafts sent to them by the executive and the needs of the public.  Unlike the executive, they do not seem to have any sense that the executive bills are polished and should be passed as is.  Rather, executive bills are starting points that often need sharp edges smoothed out.  All the delay, negotiations, and amendments to allay the concerns of various interests in society are anything but institutionalized corruption.  They are instead the legitimate process of how the elected representatives forge legislation in a representative democracy.  Making sausage is messy.

Critically, there is a distinct lack of legislative experience in Ma’s executive branch.  Vice President Wu is the only inner circle member (I can think of) with legislative experience.  (Wu was not a particularly active or influential legislator.  He seemed to regard his time in the legislature as a waiting period until he could return to a more important job in administration.)  Neither Ma nor Jiang ever served in the legislature, and I’m having a hard time thinking of any cabinet member who has.  Ma likes academics and technocrats, and this may be harming him now.  His cabinet may have unrealistic expectations about how the legislative process works and how much deference they should expect from the legislature.

The third element in the mishmash theory is bumbling opportunism.  Ma and his cronies saw a golden opportunity to remove Wang, and they leapt at it.  Unfortunately, they did not anticipate the court’s injunction, and they seriously misjudged the reaction within the party and among the general public to their charges against Wang.

I’ve talked about the court decision in another post.  Here, I’m going to discuss why the opportunity looked so golden to Ma’s team.  I don’t know whether Ma asked the SID to find dirt on Wang or whether they found it first and then gave it to him.  The important thing for this story is that Ma learned of Wang’s lobbying the prosecutor on behalf DPP legislative leader Ker Chien-ming 柯建銘.

Keep in mind that, according to my mishmash theory, Ma’s camp already considered Wang to be corrupt.  Now they had a clear piece of evidence proving it.  Ma probably mistakenly thought that the rest of the party and the general public also shared his view of Wang as corrupt.  The public hates corruption, so Ma may have thought they would welcome his attack.  Think about how the public has reacted to recent cases.  When Lin Yi-shih 林益世 and Lai Su-ru 賴素如 were accused of corruption, the public immediately rushed to condemn them.  There was no assumption that they might not be guilty.  When Yen Ching-piao 顏清標 was convicted of the relatively minor offense of trying to get an improper reimbursement, the public rejoiced in his downfall.  After all, Yen was corrupt and everyone knew it.  Who cares what the charge was.  Wang Chin-ping, like Lin and Yen, was a local faction leader.  Ma probably lumped him together with them in his mind, and he may have expected the public to do so as well.  He was going to take a stand against corruption, and the public would support him.

The fact that Wang interceded on behalf of Ker, a DPP legislator, probably also weighed in Ma’s thinking.  How could he help someone from the opposition party?  Ma may have thought that KMT members would be disgusted with this and view Wang as something of a traitor.  Alternatively, Ma may have seen this as one more piece of Wang’s institutionalized corruption.  Wang used his power to exercise influence on and for everyone, regardless of party.  Of course he would help Ker, because Ker would be expected to return the favor by deferring to Wang’s dictates in inter-party negotiations.

If Ma expected to win the battle for hearts and minds, the propitious timing may have convinced him he could also win the actual fight quickly and cleanly.  I simply can’t believe the protestations that Ma did not know about Wang’s trip to a remote Malaysian island.  The timing is too perfect.  Ma must have learned about the trip and scheduled his attack to maximize the chances of success.  He could make his accusations the minute Wang left the country and get a vote through the KMT disciplinary committee almost before Wang returned.  There would never be another chance like this one to remove Wang.  After the surgical strike, Ma was confident he could win any legal challenges and/or strip Wang’s seat before he had a chance to react.  Faced with a fait accompli, any opposition within the KMT would simply melt away.  After all, the first rule of politics is to end up on the winning side.  This whole episode would be completely settled by the party congress at the end of the month, which would serve to confirm the new status quo.

With hindsight, we now know almost all of these assumptions to be wrong.  Ma conducted his lightning strike, but he lost the legal challenge.  Instead of a triumphant confirmation of his victory at the party congress, he is now digging in for a desperate tooth-and-nail fight for survival that figures to last for several bloody months.  Moreover, he will have to fight this battle without the benefit of public support.  Instead of hailing his blow against corruption, the public has reacted very negatively.  It seems they didn’t view Wang as particularly corrupt, and they have been much more concerned about Ma’s improper use of the SID than Wang’s lobbying of the prosecutor.

Like the conspiracy theory, the mishmash theory is also not a story of a clash between Chinese identity and Taiwanese identity.  There are plenty of deep blue KMT legislators who have not lined up behind Ma.

Instead, the mishmash theory is really about a more universal theme in presidential politics, the fundamentally different ways in which the executive and legislative branches view the world.  Presidents in many countries view the legislature as corrupt and parochial.   Legislators, they think, are elected by special interests and depend on clientelism, factions, vote-buying, pork, locally influential extremists, and demagoguery to win their seats.  How can they represent the people?  In contrast, the president is elected by all the people in an election with a much stronger focus on issues that the people care about.  The executive branch presents policies that balance the needs of all the people.  When the special interests based in the legislature use their influence to emasculate the president’s policies, this is a travesty.  Democracy is subverted!  Legislators, of course, see the world in very different terms.  They are on the front lines and understand how people at the grassroots feel much better than the distant and imperious president.  If anything, the collective popular mandate of the legislature is greater than that of the president since they collectively represent a far more diverse set of interests than the president.  The democratic system requires them to examine executive bills carefully and consider the potential adverse impacts on their constituents.  Of course the legislature modifies and rejects executive bills: democracy demands it!

The mishmash theory is also about what psychologists call the Fundamental Attribution Error.  The idea is that when I do bad things, it is because of the circumstances.  When you do bad things, it is because your character is seriously flawed.  Ma was willing to attribute all the shortcomings to Wang’s flawed character.  Every time the legislature demurred, it reflected Wang’s innate corruption.  At the same time, Ma didn’t worry too much about improperly obtaining information about Wang from the SID.  That was circumstances, not character.  Unfortunately for Ma, many other people viewed Wang’s actions as the result of circumstances and Ma’s own actions as a reflection of his character.

Let me end this post with a quick caveat.  Please remember that this is all still speculation.  I don’t know for sure if any of this is right.  I think the mishmash theory makes for a plausible explanation of recent events, but I’m still not 100% sure that it is correct.  Even if it is largely correct, there are probably important details that are wrong.  I consider it to be a working hypothesis, and it is subject to revision as we learn more.

“The courts are run by the KMT”

When the Taipei District Court handed down its ruling last Friday, Ma’s lawyer made an interesting comment to the press.  In his disappointment with the news, he turned to the reporters and said something to the effect of, “I hope no one ever says the courts are run by the KMT again.”  This was a reference to an infamous statement from about 20 years ago.  Hsu Li-teh 徐立德, who was then Vice-Premier, Hsu Shui-teh 許水德, who was then KMT Secretary-General, told KMT members not to worry about the legal consequences of their actions because, after all, “the courts are run by the KMT 法院是國民黨開的。”   The courts have done little to dispel this notion over the past 20 years.  Again and again, KMT members seem to acquitted or given very light sentences while DPP members seem to get the harshest treatment possible under the law.

While Ma lost his case last week, that single case does very little to persuade me that the KMT is not improperly influencing the courts.  On the one hand, one senior KMT figure lost to another KMT figure.  Does that prove that the courts don’t give special treatment to the KMT?  On the other hand, the pattern we have seen over the years is that the KMT loses in the lower courts and wins in the upper courts.  Judges in the lower courts are much harder to control.  They tend to be more recent graduates of law school and are trained in the latest legal theories and are more idealistic.  The KMT loses lots of vote-buying cases in the lower courts because the judges there tend to be more honest (or so the theory goes).  In the higher courts, things are different.  The judges have been around a little longer and are less idealistic and more political.  This is probably a selection effect, with the politically reliable ones getting promoted.  The higher up the court system you go, the more political the court supposedly is.  So it isn’t surprising that Ma lost in the lower court.  Experience tells us that the higher courts will be more sympathetic to his arguments.  Today, right on cue, High Court judges were randomly assigned to the case.  Wang had asked for a public lottery, but the court insisted on doing it through a random computer process.  Magically, the lead judge is married to a senior KMT figure who actually ran for the legislature under the KMT banner many years ago.  The talk shows are abuzz questioning whether the assignment was really random.

Ironically, Ma insists that this whole case is about preventing political interference in the judicial system.  Indeed, that is a problem.  If the public really believed that Ma and the KMT were sincere about trying to prevent that from ever happening again, they would almost certainly enjoy enthusiastic public support.  As it is, Ma’s lofty rhetoric juxtaposed with the actual record of court decisions favorable to the KMT merely serves to remind people of just how little the KMT actually seems to want an independent judiciary.

legal and constitutional arguments

On Friday, the Taipei District Court issued an injunction temporarily stopping the KMT from revoking Speaker Wang Jin-pyng’s party membership.  I tried to write about it then, but I didn’t finish any coherent ideas before leaving on a mini-vacation with a bad internet connection.  That was probably fortunate, since I’ve had a chance to think about things before I write them.

I originally thought the court made a bad decision that would have bad consequences for Taiwan’s democracy.  Now I think the court probably made the right decision, but it will still have bad effects.  I’m going to go through what happened in the legal case, why the decision was reasonable, why it think it was a bad decision for democracy, and briefly discuss constitutional arguments about expelling Wang and separation of powers.

(Keep in mind that I am not a lawyer and have no legal training.  I might be making some basic mistakes in my discussion of how the law works.)

Wang brought a civil suit in the Taipei District Court.  Political parties are governed under the Civil Associations Act 人民團體法, and this is the basic problem.  Membership in a political party is considered just like membership in any other association.  I think this means that legally, a party membership is no different than membership in a charity, a glass producers association, a softball enthusiasts club, a temple group, or any other association.  Wang argued that the status of his membership in the KMT was still unsure and the immediate revocation of his membership would cause him irreparable damage since there would be no way to restore him to the legislature (and the speakership) if he won his appeal.  The court agreed and issued a temporary injunction preventing the KMT from taking action until Wang’s case was decided.  In making this decision, the court treated his party membership as a type of private property.  The court was not considering the impact on the association, whether Wang was guilty of the allegations, whether he should lose his seat in the legislature, constitutional arguments about anything, or whether a delay in executing the decision would benefit Wang.  This was simply a matter of whether immediately revoking Wang’s property rights over his party membership would cause him irreparable damage.  To me, that is a terrible way to think about a case like this, but I think the court was probably right in considering things from that angle and coming to the conclusion that it would impact Wang negatively and irreversibly.

The other, less reported, part of the decision was the point that Wang’s membership status was unclear.  Why was it unclear?  The KMT party rules spelled out a procedure for revoking party for revoking party rules.  They did not violate these procedures.  Wang’s lawyers made two arguments.  First, the KMT had not allowed him to appeal before executing the punishment.  However, party rules clearly stated that, while he had the right to appeal, the punishment would be valid during the appeal period.  Thus according to party rules, Wang should immediately lose his party membership and any privileges that went with it.  Second, Wang’s lawyers argued that the KMT’s punishment was unfairly heavy.  In previous recent cases, KMT members have been formally indicted and/or convicted, and they have not lost their party membership.  Wang has neither been indicted nor convicted of anything.  The party has not taken time to objectively establish any set of damning facts, yet it has still given Wang its heaviest penalty.  The court press release did not explain its decision, but I think it must have accepted one or both of these arguments.  After talking with a friend with some legal training and reading various media reports, I think the second argument is probably the key one.  The Civil Associations Act says that organizations are not allowed to make rules for single individuals; they have to use the same rules for everyone.

The injunction is supposed to put a temporary halt to the KMT’s efforts; it is not supposed to indicate that Wang is right or wrong.  However, Wang will remain in the speaker’s chair until the legal case is decided.  No one seems to know how long this will be.  At the quickest, a higher court could overturn the injunction as early as next week.  At the slowest, various commentators have suggested that the full appeals process could easily stretch out over two or three years.  In other words, Wang could finish out this legislative term as speaker before the case is resolved. Yesterday Wang’s lawyer said he thought it would take about five months for the case to be decided.  So we might be in for a protracted scorched-earth political struggle lasting for two years, or the whole thing might be over in a few days.  My guess is that the political struggle will determine a winner and/or loser before the legal battle is finished, but that is just a guess.

I do not like the legal decision to stop the KMT from revoking Wang’s party membership at all.  The judges may have made a reasonable decision based on the case at hand, but the implication is that parties no longer have the right to discipline their members.  The problem is that political parties should not be regulated as if they were ordinary civic associations.  Membership in a political party is not a property right.

Parties deal in trust.  In every election, they ask voters to trust them with political power.  Arguably, the most important asset any party has is its party image.  For democracy to work, parties must be given full control to shape their images as they see best.  If a party believes that a member is harming that image, it should have the right to sever all associations with that member.  I don’t think that the party even needs to be able to justify its decision in legal terms.  Image is a subjective concept, and the party makes a subjective decision about what helps that image and what harms it.  For example, the KMT might have decided that the damage to its image was much smaller in the Lai Su-ru 賴素如 case than in the Wang Jin-pyng case.  In the Lai case, there were concrete accusations of bribery and formal indictments.  However, Lai is merely a Taipei City Councilor.  They might subjectively decide that a relatively bad deed by a relatively unimportant member is not that harmful to the overall party image.  In contrast, Wang’s criminally less serious case might have done more damage because Wang is such an important figure in the KMT.  I personally Lai damaged the KMT party image more than Wang, but my opinion shouldn’t matter.  The KMT should be free to take any disciplinary actions that it believes will benefit its party image, and they should not need to justify those actions to a judge.

They should need to justify those actions to the general electorate, however.  If the KMT wants to engage in vicious internal purges against popular party members, that should be their prerogative.  However, they should be prepared to lose elections when they do so for superficial reasons.  If the KMT can’t persuade the general public that Wang was dirty and the electorate instead comes to believe that this was nothing more than a political purge of one leader against another, it is the electorate’s responsibility to punish or reward this behavior.

Instead, the courts have ruled that they are the arbiters of whether a party should be able to discipline its members.  In 2010, the KMT tried to revoke the membership of Hsu Shu-po 許舒博, a party list legislator, because he had been convicted of corruption by a lower court.  Hsu sued to stop the action, and the court (incredibly!) ruled that the KMT’s action was unreasonable since Hsu’s case was still being appealed and had not yet been finalized.  Because the appellate courts had not yet conclusively determined that Hsu was legally corrupt, the judge decided that the KMT could not be sure that Hsu had harmed the party’s image.  Therefore, the judge issued an injunction stopping the KMT from kicking Hsu out of the party, and Hsu eventually served out the rest of the term in the legislature.  (Because of Hsu’s case, the KMT changed its rules so that the party’s decision would take effect immediately instead of waiting until the party’s appeals process was completed.)  This is ridiculous!  It only makes sense if you think of party membership as a property right and the removal of party membership as depriving a person of property.  If you think of a party as an organization carefully nurturing a collective image, it is completely illogical.  Voters certainly don’t wait until all the legal appeals are exhausted before considering whether they should make any political judgments.  Moreover, what if Hsu had done something completely legal but politically damaging, such as repeatedly vote against his party?  Would the courts decide that he wasn’t harming the KMT’s party image because no court had convicted him?  Why should the courts even be involved in such a decision?  This should be the purview of the party, and the voters should be responsible for approving or rejecting the party’s decision.  Political decisions should be made according to political logic, and they should be judged though political processes.

Unfortunately, the courts did not defer to party judgments because they were considering the case according to the Civil Associations Act.  There is no Political Parties Law to instruct them to treat parties differently.  I believe many different drafts of the Political Parties Bill have been introduced, but none has passed.  This is probably because members of the legislature don’t want a Political Parties Law.  There is probably some key clause in all the bills that would restrict their freedom of action or restrain them in some way.  It might be about money.  It might also be that they want the courts to think of their legislative seats as private property rather than as delegations of power from voters or a party.  The current case should highlight the need for a Political Parties Law, but it probably won’t.  Since most people support Wang against Ma, the Taipei District Court is a popular one.  My argument about party discipline is coming from Ma’s side.  Since Ma is losing the war of public opinion, concerns about parties’ needs to be able to discipline themselves are also on the losing side.  Hopefully the next time the court steps in and stops a party from expelling a member, the member will be less sympathetic to the public.

In recent days, a number of prominent legal scholars have made two prominent constitutional arguments.  First, some suggest that party list legislators should be allowed to keep their seat in the legislature even if they lose their party membership.  Second, President Ma’s efforts to remove Speaker Wang from his position violate the principle of separation of powers.  I think both of these arguments are wrong.

The first argument is a bit bewildering to me.  As I understand it, the argument says that party list legislators are not merely representatives of their party.  The voters consider the individual names on the party list when they decide how to cast their party list ballots, so the individuals have a bit of legitimacy based on non-party factors.  Revoking their party membership does not revoke the voters’ delegation of power to them, since voters voted, at least in part, for them as individuals.  Thus, they should not be stripped of their seats but should be allowed to continue serving as independent legislators.  In Germany, when the Green Party tried to expel a list legislator in 1988, a judge used this logic to rule that he should keep his seat.

I am not a lawyer, and I don’t always understand legal logic.  However, I can claim some expertise in electoral systems, and I have never seen this sort of logic used to explain how closed list proportional representation systems should or do operate.  In a closed list PR system, the voter marks a vote for a political party.  In some countries, a few names are listed on the ballot next to the party name (I am not aware of any cases in which the complete list is presented), but the vote is for the party, not for the names.  The voter has no way of indicating which name he or she likes or dislikes.  Moreover, the order of the names is fixed in advance by the parties.  If the party already has enough votes for twelve seats, one more vote will help only the 13^th person on the list get a little closer to winning.  It doesn’t matter whether the voter really likes the 7^th person or the 15^th person better.  Moreover, voters can only guess whether it will be the 13^th, 15^th, or 18^th person who is on the bubble.  In other words, voters really can’t vote for individuals on a closed list.

Empirically, we have pretty good evidence that voters do not try to vote for individuals.  The Taiwan Election and Democracy Surveys (TEDS) are the standard academic datasets for election studies in Taiwan.  After both the 2008 and 2012 elections, survey respondents were asked if they could name anyone on any party lists.  Very few people could.  I don’t remember the numbers, but I believe it was fewer than 20% who could even name one person.  Most people who named someone named Wang Jin-pyng.  However, this should not be taken as an indication that voters delegated personal power to Wang.  Many of the people who named him did not vote for the KMT.  At any rate, since he was listed at #1 and the KMT eventually elected 16 members, his election was assured; voters could not do anything to help him or prevent him from winning.  Instead, people voted for a particular party list based on the whole party, not because they wanted to delegate power to a particular legislative candidate.  This finding is general.  Voters around the world rarely know who the individual candidates are anywhere that closed lists are used.  With closed lists, voters vote for parties, not individuals.

In fact, the primary argument justifying the use of closed lists is precisely that they create strong political parties that can constrain individual members and act cohesively.  The ability to discipline members by stripping their seats or giving them a lousy spot on the list is central to the logic of the system.  Voters vote for parties, parties put individuals into offices, parties oversee those individuals and ensure that they act as the party intends, and voters judge parties on the results.  If the individuals are allowed to flaunt party discipline, the system breaks down.

As far as the German judge goes, I simply don’t care.  Just because one German judge made a terrible argument based on a flawed understanding of representation does not mean that Taiwan is obliged to follow his awful precedent.  Why in the world should we accept the ludicrous idea that party representatives are not actually representatives of the party?

The second argument is far less stupid.  The constitution lays out a system with separation of powers, and the president tried to remove the speaker of the legislature.  This strikes many people as fundamentally wrong.  The executive branch should not be able to dictate to the legislative branch.  Indeed, one of the primary achievements of democratization in Taiwan was creating a legislature that could say no to the president.  Today’s Taipei Times has a more detailed summary of this argument.

I understand why people instinctively don’t like seeing the president bully the speaker, but I think this argument is ultimately flawed because it fails to consider the centrality of parties in democratic politics.  One of the most important books in the past generation informing our understanding of presidentialism is titled Presidentialism and Democracy in Latin America (Shugart and Wattenberg, eds. 1997).  The book makes the point that presidents generally enjoy two types of power.  The constitution grants them certain formal powers that they wield as president.  In addition, most presidents are the formal or informal leader of a political party, and this yields a set of partisan powers that they wield as party leader.  Interestingly, presidents with the strongest set of constitutional powers often have weak partisan powers and vice versa.  Critically, the most stable and successful democracies tend to be those with presidents who have weak constitutional but strong partisan powers.  Presidents with strong constitutional powers but weak partisan powers try to ram things through the legislature regardless of whether they have any support there.  However, those decisions are commonly blocked by an incalcitrant legislature or reversed by the next imperial president, and some results include gridlock, vitriolic rhetoric, wild policy reversals, and impeachments.  Presidents with weak constitutional powers but strong partisan powers are able to operate more smoothly because they have a solid block of footsoldiers in the legislature.  Presidents are also constrained from taking actions that are too radical because they need to consider the electoral fortunes of those footsoldiers, even if the president himself will not be running for re-election.  Moreover, laws enacted with the full approval of the legislature are more likely to remain in force after the president leaves office.  In short, the executive and legislature are not always independent actors.  The system operates best when they are linked together by political parties.

Taiwan is fortunate to have strong parties paired with a constitutionally weak president.  The president has no decree powers, so he cannot unilaterally make a law.  He has a very weak veto, only a package veto which the legislature can override with a mere majority.  The executive branch can introduce bills, but they have no special status in the legislative process.  The major exception is that Taiwan’s president has fairly strong control over the national budget.  However, as the 2001 showdown over nuclear power demonstrated, when the president faces a determined majority opposition in the legislature, the legislature will win.  Taiwan’s president cannot simply command the legislature; he has to persuade it to do his bidding.  This is where the partisan powers come in.  The president can use softer tactics, such as communication through the party legislative caucus or appealing to the public to give him more footsoldiers in the next election, or harder tactics, such as threatening to withhold nominations from unruly members in the next election.  By doing such things, the president can help channel the disparate energies and ambitions of the diverse set of party members toward a specific set of political goals.

Of course the president might abuse his partisan powers by employing them for a goal that many or most of the party members do not want.  Arguably, that is what has happened in the current case.  If this happens, it is the party’s responsibility to constrain the president.  In the current case, if KMT legislators and other party members are worried that Ma’s actions will harm them electorally, they should probably take some action to strip him of some of his partisan powers during this month’s party congress.  For example, they might implicitly repudiate him by requiring the Central Standing Committee to affirm all disciplinary measures, or they might explicitly repudiate him by standing up and applauding when Wang walks into the room.  Either way, a clear message would be sent that Ma does not fully control the party, and Ma would be politically hobbled for the rest of his presidency.  The KMT might be able to restore its tarnished image by turning to a new set of leaders to fight the 2016 campaign.

The important point here is that partisan powers are a critical and legitimate element in presidential politics.  The fact that Ma has used his partisan powers to interfere with the inner workings of the legislature is not a violation of separation of powers.

In fact, from one point of view, there is no such thing as a pure separation of powers.  The executive branch has a lot of legislative powers, including the right to introduce bills, and the right to veto.  The legislative branch has some executive powers, such as the right oversee the workings of the executive branch by demanding that bureaucrats regularly report to the legislature on their activities.  Both branches also have some judicial powers as well.  Thus contrary to popular belief, the constitution does not actually establish a system with separated powers; it shares the powers among the branches of government.  From this point of view, criticizing the president for interfering in the legislative branch does not make sense.  The president is, by order of the constitution, a legitimate player in the legislative branch.

Another way to think about the idea that there is something wrong with the president trying to remove the speaker is to think about an alternate world in which Speaker Wang had been elected in a district.  Suppose people in Wang’s district were dissatisfied with his performance and wanted to recall him.  If he were actually recalled, he would lose his seat and, of course, the speaker’s chair.  No one thinks this would be illegitimate.  The voters of the district elected him and delegated power to him.  They also had the right to remove him from power.  Similarly, in the real world, the Taiwanese voters gave sixteen party list seats to the KMT and the KMT entrusted one of these seats to Wang.  When Wang acted in a way that the KMT did not approve of, it tried to take the seat back, just as voters could try to recall their district representative.

Of course, what really rankles some people is that Wang is not just another party list legislator, he is the speaker.  But why is he the speaker?  The KMT has already “interfered” in the legislature’s internal business by nominated Wang as speaker and then using its party powers to ensure that all KMT legislators voted for Wang and ratified the party choice.  Somehow it is not seen as illegitimate when the party puts the speaker in power, but it is illegitimate to try to remove him.

By now my basic points should be clear: parties are legitimate and critical actors in the democratic process, and they should have the freedom to discipline their own members.  If they do so irresponsibly, it is up to the voters to punish them.  I personally do not buy Ma’s assertion that Wang’s supposed illegal lobbying was the most embarrassing day in the party’s history, and it seems that most of the public does not buy it either.  However, if the KMT bought the argument, that should be sufficient.  If they want to plunge their party into internal chaos, that should be their choice to make.  I think they are doing serious damage to their party image and future electoral prospects, but apparently they do not agree.

All the King’s Horses and all the King’s men

So it looks like President Ma 馬英九 will succeed in his quest to purge Speaker Wang 王金平.  A lot is still ongoing and we certainly haven’t seen the end of this story.  Moreover, there is always a lot more going on behind the scenes that we don’t see, so we don’t really have a full set of facts about the basic events.  However, at this point I think I can start to make some preliminary comments about what has happened and what it will mean.

One thing that I still do not feel I understand well is why Ma wanted to purge Wang.  I haven’t heard any such uncertainty from the talking heads on TV, but then no one there ever says “I’m not sure” about anything.  They have offered several motives.  Ma has hated Wang ever since the 2005 fight over the KMT party chair or the 2007 fight over nomination for president.  The talking heads point to one of Ma’s campaign ads that said his campaign was a fight against black and gold, and (obviously??) this meant Wang.  Another pundit said the hatred goes back to the mid-1990s when certain KMT legislators blocked Justice Minister Ma from prosecuting corrupt KMT politicians.  A different tack is that Ma was hearing rumors that various forces (perhaps including Lien Chan 連戰, Hau Bei-tsun 郝柏村, Wu Po-hsiung 吳伯雄, and/or Eric Chu 朱立倫 and his father-in-law 高裕仁) were planning to push Wang for party chair, and the purge was Ma’s pre-emptive strike to secure his power and avoid becoming a lame duck.  Then there are the people who think that the legislature was not passing Ma’s legislation (nuclear plant referendum, trade and services pact) quickly enough or not blocking potential amendments.  All of these make a little sense, but none is quite persuasive to me.  If you had asked last week who the biggest threat to Ma was, I wouldn’t have said Wang.  The dredging up of old events looks like post-hoc reasoning, much like how stock market analysts confidently say the latest unemployment stats were (obviously) good news if the market went up or bad news if the market went down, regardless of whether unemployment was up or down.  The idea of Wang challenging Ma for party leadership is ignoring the point that Wang is just not a confrontational guy.  I’ll talk more about the effect on the legislature below, but the basic problem is that the referendum and the services trade pact are unpopular and KMT legislators don’t want to go on the record casting votes for them.  Removing Wang won’t change that.  At any rate, these sorts of internal tensions always exist inside every political party, but the various actors usually just put up with things rather than declare full nuclear war.  I don’t have a better answer; I’m just not fully satisfied with any of these proposed motives.  I’d really like to know why Ma chose this course.

One thing I am absolutely sure of is that this is a political purge.  Ma’s accusations of influence peddling and harming the party’s image are clearly window dressing.  As many, many people have pointed out, Ma didn’t react nearly as strongly to other recent cases (eg: Lin Yi-shih 林益世, Chang Tung-jung 張通榮, Chuo Po-yuan 卓伯源, Lee Chao-ching 李朝卿, Lai Su-ju 賴素如) in which actual crimes were committed and people were convicted by the judicial system.  Every report I’ve seen so far says that there is no legal case against Wang.  Indeed, the KMT rescinded his membership for the vague offense of harming the party’s reputation, not for any specific legal cause.  This is in marked contrast to the usual practice of declining to take any action until a party member is convicted by a court and the legal appeals process has been exhausted (and not always even then).

No, this was a power play.  Ma decided to remove Wang, planned carefully, and ruthlessly executed that plan.  The timing is a clear tipoff.  Are we to believe that Ma really learned of this “egregious offense” right before Wang coincidentally left the country?  And, even more fortuitously, Wang chose to go to a fairly remote part of Malaysia with bad communications and infrequent transportation back to Taiwan.  Wang could hardly come back early since he would have had to cancel or miss his daughter’s wedding, but even if he had wanted to, it would have been logistically challenging.  (I even heard one pundit claim that Ma had waited until right after Wang cleared customs at the airport to send the first message to explain himself and the second call went out right after the plane took off.  Take that story with a grain of salt.)  If we are to believe the official timeline, the Special Investigation Division learned of the lobbying while (illegally?) listening in to a DPP legislator’s phone calls.  However, the phone calls took place in late June, but Huang supposedly did not (illegally?) report this information to President Ma until August 31.  So supposedly the SID sat on this info for over a month and, by random chance, reported to Ma at exactly the worst time for Wang to defend himself.  That seems a bit fishy.  More likely Ma sent word to the SID to pass him any dirt on Wang and knew of this incident by early July.  The official timetable is almost certainly contrived for public consumption.  After springing the trap, Ma acted quickly to ensure that Wang could not wiggle out.  Ma scheduled the KMT disciplinary meeting less than 24 hours after Wang arrived back in Taiwan.  When the decision came down from that obedient body, it was finalized and the paperwork was sent out to the Central Election Commission that day.  The disciplinary committee even “rescinded” 撤銷 his party membership rather than “expelling” 開除 him, because the party rules require the latter decision to be ratified by the Central Standing Committee.  Ma does not dominate the CSC as thoroughly as the disciplinary committee, and Wang might have been able to overturn the decision in that arena.  Instead, the CSC was merely informed of the decision.  Now that the Central Election Commission has received the KMT notification, I don’t see how the decision can be reversed.  The CEC is not responsible for judging whether the decision was fair or reasonable.  It received an official document from the legitimate party office saying that Wang is no longer a party member.  The CEC’s hands should be tied.  According to law, if Wang is not a party member, he loses his seat on the KMT party list.  Since he will no longer be a member of the legislature, he automatically ceases to be speaker.  (Then again, I’ve seen stranger things happen in Taiwan’s politics…) This was a lightning strike, designed to render a decision before Wang was able to mobilize any support for a counter-offensive.  At this point, it looks like it has succeeded.

[Update: Wang has gotten a stay of action from a court.  I think this is probably just delaying his fate.  But maybe not.  I hate writing while things are still unfolding.]

[2nd update five hours later: Oops.  It seems the court decision has overturned everything and Wang will survive.  What??  I don’t understand the legal ruling at all.  At any rate, a lot of this post is immediately rendered obsolete.  Imagine that: after months of writing nothing for this blog, I spend hours and hours writing a 4000+ word post that is out of date before it is even published.  This is why academics usually wait a few months or even years after the fact before trying to publish anything.  ]

Supposing Wang really has lost the Speaker position.  What then?  Several people have suggested that Wang will run for Kaohsiung City Mayor next year or president in 2016.  Others think he will try to get back in the legislature and regain the speaker’s chair.  Still others wonder if he will split his faction off from the KMT and ally with the green camp.  I think none of these will happen.  The reason that Wang has been such a great fit as speaker for 15 years is that he is a consensus seeker.  By nature, he shies away from conflict whenever he can.  He just doesn’t have the personality to try to storm the castle all by himself.  At any rate, none of these options has a sliver of a chance of succeeding.  We’ve seen again and again how dismally third party candidates do in Taiwan’s elections.  And there is no clear path to get back into the legislature quickly.  Even if a close ally resigned a seat and Wang won the by-election (ignoring the fact that he would have to beat a KMT assassin and a DPP candidate), by the time that happened there would already a new speaker sitting in the chair.  At any rate, Wang is old and was planning on retiring after this term anyway.  I think he’ll just fade away.  But, as always, I could be wrong.

Another line of speculation says that the Wang faction in the legislature will ally with the green camp to elect the new speaker.  According to this logic, it takes 57 legislators to win a majority and the KMT has 64 legislators, so all Wang has to do is get 7 or 8 KMT members to split off and combine with all the DPP, TSU, PFP, and independent legislators to elect the new speaker.  Think about that coalition for a bit and see if it sounds like it could agree on anything.  I doubt it.  More importantly, which 7 or 8 KMT members are going to break off?  One thing that has been overlooked is that the “Taiwan KMT” legislative caucus is much smaller than it used to be.  Moreover, many of the most senior legislators with leadership capability are no longer in the legislature.  Some of the people who MIGHT (not always clear who belongs where) be considered Taiwan KMT who have left the legislature in the past few years include Lin Yi-shih 林益世, Chung Shao-ho 鍾紹和, Li Fu-hsing 李復興, Huang Chien-ting 黃建庭, Lin Ping-kun 林炳坤, Lin Chien-jung 林建榮, Chiu Ching-chun 邱鏡淳, Liu Chuan-chung 劉銓忠, Hou Tsai-feng 侯彩鳳, Chiang Lien-fu 江連福, Yen Ching-piao 顏清標, and Chiang Yi-hsiung 江義雄.  Some of them retired, some were defeated, and some took other offices.  Regardless, that is a lot of talent and experience that is now missing from the Taiwan KMT.  What’s left?  Perhaps Weng Chung-chun 翁重鈞, Huang Chao-shun 黃昭順, Yang Chiung-ying 楊瓊瓔, Hsu Yao-chang 徐耀昌 and a handful of new or uncharismatic legislators.  That doesn’t look to me like a group with the guts or skill to take on a party leadership that will be invoking draconian party discipline on the speaker vote.

The more interesting question is whether this case will cost the KMT votes.  There are two ways this could happen.  First, Wang has his own personal networks that could refuse to mobilize for the KMT again.  They might even actively work against the KMT to try to show that expelling Wang was a bad idea.  This effect would be limited to a very small segment of the electorate in Kaohsiung.  Second and potentially much more significant, the “Taiwan KMT” could reconsider its loyalties.  Wang was widely seen as the leader of the native wing of the KMT, that vague grouping of people who are ethnic Min-nan, prefer to speak Taiwanese, have a predominantly Taiwan identity, come from central and southern Taiwan, are somewhat earthier, and/or have “complicated” ties with local society (read: local faction politicians embedded in black and gold networks).  Many (mostly green) pundits are arguing that Wang’s purge is a signal to the Taiwan KMT that they are clearly subordinate partners to the dominant Taipei/mainlander/bureaucratic/elite Chinese KMT wing.  Because of this, some people wonder whether the elites and their supporters in the Taiwan KMT will reconsider their support for the blue side and defect to the green side.  This is certainly possible, but I am dubious.  These people have had numerous opportunities to defect over the years, and yet they are still in the broader blue camp.  Unless Ma comes out and explicitly says something to the effect of “you people are not full partners and your Taiwan orientation is illegitimate,” don’t expect them to defect now.  Of course, Ma will say nothing of the sort.  Instead, he rejects the notion that Wang represents anything more than one person.  In Ma’s discourse, this was a regrettable but isolated incident, and the KMT remains a broad tent welcoming people from all corners of Taiwan.  By the time the 2014 and 2016 elections roll around, this will probably once again be the dominant way of thinking within the Taiwan KMT.  In short, I don’t think this purge will trigger much lasting change to the political map, much less a full-scale reorganization of the party system.  If there is any effect, I think it will be marginal.  This ugly factional infighting will be just one more thing in a litany of KMT problems, including the Dapu land case, the recent death of a military recruit, a few corruption scandals, continuing economic stagnation, and now this.  I expect many previous blue camp supporters to be disgusted with the KMT when they vote in 2014 and 2015, but they won’t necessarily be able to tell you which incident was the critical one.  All these things blur together.

If Wang has lost, this doesn’t necessarily mean that Ma has won.  You can’t just purge someone of Wang’s stature and go back to work the next day expecting everyone to pretend that nothing has happened.  The KMT will probably go through an extended internal struggle over the next month or two.  Ma will either emerge hobbled and constrained or dominant within the party.  It’s still not clear how that struggle will unfold and who will be on which side.  So far, only a few KMT figures, most notably the Lien family, have been willing to openly attack Ma for this power play.  However, Ma did very little in this episode to try to package his actions to make them more palatable to the public, and public opinion is running very strongly against Ma.  Likewise, other party elites were shocked and most seemed rather dismayed by this purge.  If we are to believe the media reports, almost none of them had any inkling that Ma was about to ambush Wang.  (The plot was said to be planned by only handful of people, including Ma, VP Wu 吳敦義, Premier Jiang 江宜樺, consigliore King Pu-tsung 金溥聰, King’s man in the presidential office Luo Chih-chiang 羅智強, and the former Foreign Minister Yang 楊進添.  Again, grain of salt.)  Some party elites, like Mayors Hau 好龍斌 and Chu 朱立倫, have accepted the fait accompli and grudgingly expressed support for Ma.  Other, like Mayor Hu 胡志強, have remained silent.  There could be much more to come.  For that, we will just have to wait and see.

One of the points of contention within the KMT may be the extent to which Ma, as party leader, can make decisions for the entire party.  In particular, legislators on the party list are supposed to serve at the pleasure of their party.  If they run afoul of the party, it has the right to take that seat away and give it to someone more reliable.  In democratic theory, parties play a crucial role by restraining individuals from pursuing their own personal gain at the expense of the collective.  Since many members of the party will have to face the electorate at some time in the future, they act to constrain their members from engaging in harmful behavior such as taking unpopular positions on critical issues or taking bribes in order to protect the reputation of the whole group.  If Wang had really damaged the KMT’s reputation by influence peddling, the party would be justified in expelling him.  However, Wang did not seem to run afoul of the collective KMT.  Rather, he ran afoul of one person, Ma.  In making the decision for the entire party based on his personal considerations, Ma seems to have gone far beyond what most members of the party wanted.  Remember, parties are supposed to constrain their members, and Ma is a KMT member.  If he was usurping the party machinery to do something that harms the greater party image (eg: launch a highly visible factional purge), the collective should try to restrain him.

At any rate, Ma has sent a clear message to all KMT party list legislators that they are responsible to him, not to the wider KMT.  This is a departure from past practices.  In the past, list legislators have only been stripped of their seats if they were convicted of a crime or if they blatantly disobeyed party discipline on a very critical issue.  In the former case, it was the courts, not the party, that usually took the seat away.  This case is something new.  Ma has apparently taken Wang’s seat away because of a factional dispute or because Wang was not pushing Ma’s legislative agenda to Ma’s satisfaction.

I have been arguing for a few years that Taiwan’s legislature has a class system, with dominant district legislators and relatively powerless district legislators.  The main exception to this pattern came from senior legislators who decided to take a spot on the party list rather than go through the trouble and expense of winning another district election.  In the future, those senior legislators will have to think twice about whether they should stay in their districts.  If even Speaker Wang was vulnerable, everyone has to worry about whether they might unexpectedly end up on the wrong side of a factional power struggle.  If I were any of the senior list legislators now, I would be thinking very seriously about reopening a few constituency service centers and preparing for a district race.  On the KMT side, I’m looking at Vice Speaker Hung Hsiu-chu 洪秀柱, Pan Wei-kang 潘維剛, Chi Kuo-tung 紀國棟, and Hsu Shao-ping 徐少萍.  In the DPP, Tien Chiu-chin 田秋堇, Wu Ping-jui 吳秉叡, Tsai Huang-liang 蔡煌瑯, and Chen Chi-mai 陳其邁 might be better off running in districts next time.  Of course, if only people who cannot win a district are willing to take list seats, the power gap between district and list legislators will grow larger.  (There were some hints that it had been shrinking after electoral reform; now we may not see these trends develop to fruition.)

What should we expect in the post-Wang legislature?  All the rumors say that the KMT will push for Vice Speaker Hung Hsiu-chu to take over the speaker’s chair.  Hung is a very different person from Wang.  Demographically, she is female, mainlander, and from the Taipei area.  Ideologically, she is clearly part of the Chinese KMT, not the Taiwan KMT.  Her personality is also very different from Wang’s.  She is sharp-tongued and confrontational.  She is often called a “chili pepper” in the media.  She will be a very different speaker than Wang was.  (Casual observers who know only one thing about Taiwan’s legislature – that fighting occurs regularly – might be surprised to learn that it was chaired by a dedicated consensus seeker!  You mean there will be MORE fighting in the legislature in the future??  Yup.)

Frankly, I wonder if there was growing impatience with Wang’s consensual style.  Wang gave the DPP and smaller parties quite a bit of input into how the agenda was set.  I wonder if there was a growing demand in the legislature to rein in some of the individualism or consensualism and run the institution along more majoritarian lines.  I don’t mean that there was any danger within the legislature to Wang’s leadership.  I think he was still extremely popular and most blue camp legislators were stunned and probably somewhat dismayed by recent events.  However, it’s possible that, moving forward, the KMT caucus won’t be entirely unhappy with the new regime.  Let me explain.  As I noted above, the Taiwan KMT wing of the party is much smaller and has weaker leaders than in past years.  Instead, the party is increasingly dominated by the Chinese/northern wing of the party.  Of the KMT’s 64 members, 25 are from Greater Taipei, Taoyuan, and Hsinchu City, and almost all of these belong to the Chinese KMT wing.  A further 16 are on the party list and can be counted on to toe the party line.  A handful of other legislators from districts around Taiwan can also be counted as Chinese KMT.  In all, the Chinese KMT might control as many as 45 or 50 votes in the legislature.  In other words, the current KMT legislative caucus is more narrowly based in the north and more ideologically cohesive than previous caucuses have been.  On the other hand, this is a crude generalization as it still maintains a wide range of opinion on some policy questions, such as nuclear power.  Even if it cannot agree on all policy questions, I think there might be some consensus on the desire to cut the DPP and other smaller parties out of the decision-making process.  I think it is quite possible that the KMT under Speaker Hung will revise some of the organizational laws to allow for more majoritarianism.  While this wouldn’t necessarily be undemocratic in principal – legislatures have the right to determine how they will reach decisions and are constantly moving between more minority rights and more majority control – it might not be a great thing for an already polarized Taiwanese society to see more things forced through the legislature by an already-unpopular president.  Alternatively, she might just use her agenda power as chair to disallow some motions or bills.  In the extreme, she could do what the KMT did a couple of decades ago to pass controversial national security laws: seeing the chaos on the floor, Speaker Liu yelled that legislators would vote yes by standing up and then hammered the gavel down and declared the bills passed.  If the DPP can’t oppose KMT bills through normal legislative procedures, it will react by resorting to more extraordinary tactics, such as interrupting legislative proceedings and street protests.  (On the positive side for me and my colleagues, we might see a lot more roll-call votes if Hung tries to do more things without first getting unanimous consent.  Data!)

So let me try to sum up a bit.  On the one hand, it’s easy to see how this might lead to a more China-friendly government in the short run.  The president has purged a nativist rival and may have cowed others into silence.  At any rate, the KMT legislative caucus has been evolving toward a more pro-China orientation.  If Ma is able to consolidate his power inside the KMT over the next couple of months, he could have quite a bit of leeway to govern as he pleases over the next year or so.  On the other hand, other forces in the KMT might not be so happy with this power play and might be able to encroach on his power within the party to make sure they are not the next casualties.  On the third hand, eventually we will return to electoral politics.  The more radical Ma and the KMT are over the next year or so, the more out of step with the electorate they will become.  I think it is becoming increasingly likely that the DPP will win power in 2016.

One more thing.  Suppose the KMT finds itself out of power in 2017.  When the hardliners in the DPP demand a thorough investigation of corruption in the Ma administration (and there is always something to be found), how many KMT supporters will stand in his defense?  I’m pretty sure it will be fewer now than it was last week.  Ma displayed more ruthlessness this week than I thought him capable of, but political hardball is a dangerous game.  He may have sown the seeds of his own eventual disgrace.