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.