Brawling and Chen Chu’s confirmation to the Control Yuan

We’ve seen several physical clashes in the legislature over the past couple weeks concerning Chen Chu’s nomination as president of the Control Yuan. As someone who has spent a lot of time over the past five years studying brawling in the Legislative Yuan, I have a few thoughts about how this episode played out.

The first thing that we need to understand is that, after over thirty years of brawling in the legislature, physical clashes are now understood by all actors as a “normal” part of the legislative process. There are informal rules governing what is allowed and what is not. The simple fact that there was pushing and shoving has long since ceased to be shocking, and it certainly does not demonstrate that democracy is dead or even highly flawed. The opposition is certainly allowed to claim majority bullying and violence and procedural flaws (hint: it always does), but this does not generally count as evidence that the result was illegitimate. In the end, if a majority of legislators are willing to stand up and support the result, that is what matters.

Brawls are not a contest of violence. They are fundamentally grounded in party politics and public opinion. The majority party wants to do something that the minority opposes. Rather than simply make a bunch of speeches that society might ignore, the minority dramatically opposes the majority by physically obstructing proceedings. Of course, if the minority physically obstructs proceedings, the majority has the option of responding by physically clearing away the disruption. After all, if they actually do have a majority of members who want to do something, the majority should eventually win out.

There are some clear, if informal rules, that govern brawls. The first is that brawls are not about violence. They are about political communication. A certain amount of violence is necessary to produce and/or overcome a procedural disruption, but the violence is not the point. The message is the point. You might need to physically disrupt normal proceedings to make that point, but you want everyone’s attention on the substantive point, not on the violence. If you escalate the violence too much, the public will focus on the violence and forget about the message. This is why excessive punching, biting, hair-pulling, kicking, and so on always backfires. The other side can simply ignore your point and call you a brutish thug. If you watch a podium occupation, what you see is a lot of pushing and jostling. You do not see anything potentially lethal or even anything that could seriously injure anyone. That is going too far, and it damages your political message. Rule 1A is that you definitely do not want any hint of inappropriate sexual contact. The opposition party puts its female legislators at the middle of the scrum, daring the majority party to touch them. The majority party generally assigns the task of removing them to its own female members. A second rule is that only legislators are allowed to participate in the brawl. No professional staff are allowed to participate in any way, and legislative aides aren’t even allowed in the chamber. Legally, the speaker has the power to call security into the chamber, but no speaker has done this since democratization. The legislators, who have special constitutional protections and each of who has some sort of democratic mandate, are the only people allowed to participate in legislative struggles. They have to figure things out on their own. A third rule is that, even in the midst of all this chaos, you have to go through all the normal procedures to pass an item. In the case of a normal law, you have to go through line by line review, voting on the name and content of each clause. This entails opening discussion on each item, allowing some discussion if the opposition wants to talk, taking a vote to close off discussion, then voting on the individual clause. If the bill has 78 clauses, you have to go through this 78 times. It’s exhausting, but by doing this the majority demonstrates it has the necessary support for each item (again and again) and legitimates the decision even in the face of vehement, physical dissent. Shortcuts have occurred in the past, in which a majority used a package vote or used other special procedures to reduce the time it would take to pass the item. However, these usually caused a bigger headache than they were worth, as the opposition could credibly scream that the majority was not respecting the established procedures and (less credibly) trampling on the rule of law. Fourth, you don’t have to actually cast your own vote. As long as you are physically in the chamber, you are allowed to have someone vote for you. When the parties are struggling the podium, it’s hardly reasonable to expect someone to give up their hard-won position to go back to their desk and vote. At any rate, there are always legislators who don’t want to get involved in the tussle. The can still contribute to their party’s effort by taking care of the voting while other people do the fighting.

 

 

One way I like to think of brawls is that they change the legislative process from one of simply numbers (ie: how many people are willing to raise their hand to vote yes) to one of both numbers and intensity (ie: how many people are willing to actively and openly struggle for the proposal and they also vote yes). This is a somewhat different threshold, since often legislators want to hide from their unpopular votes. Brawling makes is obvious to everyone which side they are on.

 

The fight in 2012 over the question of opening Taiwan up to American beef imports is a vivid illustration of how brawling works. At the time, the balance of the legislature was about the exact opposite of today, with the KMT enjoying a 64-40 advantage. The Ma government wanted to open up the market in order to negotiate a wider trade agreement. However, the move was generally unpopular with the public, who feared that ractopamine-laced American beef was not safe. A TVBS poll showed the public was against opening the market by a 59-31% margin. The bill was scheduled to be passed in the last week of the session, but the DPP stormed the chamber on Sunday and declared it would occupy the podium the entire week until the clock ran out.  They maintained an around the clock vigil, with most members in the chamber at any time and the others on immediate call. This was not an easy vigil. There were heavy rainstorms in the south, and many DPP members desperately wanted to go back to their districts to oversee (and claim credit for) flood relief efforts. However, they stayed in the chamber. Meanwhile, the KMT plotted its counter-attack to clear the DPP off the podium. They planned a 3:00am raid, but they never launched it. For one thing, the DPP caucus never wavered in its resolve. More importantly, a fair number of KMT legislators signaled that they did not want to participate in the fight for such an unpopular bill. We don’t know if they would have been willing to quietly and discreetly vote yes, but we do know that they did not want to go in front of TV cameras and actively struggle for a bill that the public did not like. Speaker Wang informed the KMT caucus that if they stormed the podium at 3:00am, they would have to be prepared to hold it for up to nine hours. They could not do any business until the professional staff showed up, they had to process several scheduled discussion items before the beef bill, and then they had to go through the beef bill itself. The KMT leaders concluded that their caucus simply wasn’t up to this challenge. As a result, the KMT never attempted to clear the DPP’s physical obstruction, and the DPP succeeded in blocking the bill by running out the clock.

What is great about this story is the unexpected coda. A few weeks after the DPP’s great triumph, the outside world changed. A UN committee unexpectedly passed a measure establishing a safe standard for ractopamine. Almost immediately, public opinion in Taiwan changed because the Ma administration could frame the question in a new way. With no international standard, the DPP could claim that any level of ractopamine was scary and dangerous. With the new standard, the new question was whether Taiwan should allow imports that conformed to the international standard. Asked this way, a TVBS poll found a dramatic shift. Now the public supported opening the market by a 57-31% standard. When the legislature took up the bill again in a special session a few weeks later, the DPP didn’t even try to obstruct proceedings, and the suddenly unified KMT passed the bill without any problems.

This story clearly illustrates the importance of party cohesion to brawling, and it also illustrates just how closely party cohesion is related to public opinion. When both parties understood that the public supported the minority’s position, the minority was able to block the majority. When public opinion shifted, the minority was powerless to resist the majority.

 

Let’s return to current Taiwan. President Tsai decided to nominate her close political ally, Chen Chu as head of the Control Yuan. The Control Yuan is a strange beast. It is Sun Yat-sen’s “genius” brainchild, based on the anti-corruption imperial censorate. However, no one has ever figured out quite what the CY is supposed to do or how it is supposed to work in a democratic context. Political parties are at the core of democratic politics, but this is supposed (?) to be a non-partisan institution that can nonetheless address highly partisan questions of exactly where the grey lines defining corruption are. Impeaching an elected official is never a technical exercise, and the CY has never managed to exercise its power in an uncontroversial way. In fact, it has been a fairly toothless and useless institution. One of the undercurrents of this controversy is that the DPP has always wanted to abolish the CY and the KMT has recently begun suggesting that it might also support that move. Of course, the KMT’s position is perhaps not sincere, since KMT true-believers would be loathe to abolish Sun Yat-sen’s legacy. As a bargaining matter, the KMT wants the DPP to not nominate anyone (so that there is no DPP-led agency to investigate their abuses) and instead spend the next few years endlessly and fruitlessly discussing abolition. The DPP’s position is that the current constitution requires them to fill the positions, but they are very open to abolition. If the KMT wants to shorten Chen Chu’s term, it can do so at any time by agreeing to abolish the CY. To put it bluntly, the DPP holds all the cards here.

Chen Chu was always going to be a controversial nominee. She is not a shrinking violet, and she has never shied away from partisan fights. This doesn’t make her much different from previous nominees. Wang Chien-hsuan, for example, was a founder of the New Party and a bitter opponent of both the DPP and Lee Teng-hui. The pattern has always been that the party in power thinks that the nominee is fair and honest, while the opposition party thinks the nominee is a partisan hack who couldn’t possibly be neutral. Nonetheless, this is who President Tsai wanted, and if she is willing to accept any political costs that Chen’s nomination might convey, she absolutely has the right to nominate Chen.

 

When it comes to legislative brawls, I am always more interested in the opposition party’s calculations. After all, they are the ones who decide to create a conflict. What is interesting about this particular case is that the KMT has decided to fight this fight without a clear argument aimed at the general public. Their argument is entirely aimed at KMT die-hard party loyalists.

The KMT hasn’t bothered to make an argument that Chen Chu is unfit to serve as head of the CY. They have simply asserted that idea as a fact that they expect everyone to already believe. Their big slogan has been, “reject crony appointments.” Of course, you can label every appointment as having political implications. It isn’t obvious at all (to me, at least) what makes Chen Chu’s appointment so much more obviously nefarious than every other political appointment. In American politics, we often see a person appointed as ambassador after they have donated large sums of money to the president’s campaign. Or sometimes there is a more explicit trade-off, in which someone endorses the campaign and then gets a plum cabinet position. These are perhaps a bit undesirable, but no one can quite draw the line of what is cronyism (or a spoils system). It seems obvious to the other party, until they return to power. The KMT has not bothered to explain what exactly is so cronyish about Chen Chu’s nomination. They simply keep repeating that it is an abomination, and assume that this is obvious and everyone will agree with them.

The KMT also has argued that Chen is corrupt, and this means that she is unfit to lead an anti-corruption agency. However, they have not bothered to make this case to the public. At most, they might mention the name of a specific accusation. However, I haven’t seen them go into any details of any specific case to show exactly how Chen is corrupt and how she lined her pockets or her supporter’s pockets with public money. In fact, Chen has a pretty simply response. Over the years, the KMT (and the KMT dominated Control Yuan) has repeatedly accused her of improper behavior, but they have never been able to show evidence of any improper action. All those accusations have resulted in zero impeachments, convictions, or punishments. Again, one might think that the KMT would use this nomination as an excuse to go through her record with a fine-tooth comb, presenting abuse after abuse to the general public. They haven’t done that. Instead, they have simply stated that she is unfit for this office, and they have not expected anyone to challenge this assertion.

Now, Chen Chu is not a widely reviled politician. I don’t have any recent data for her approval ratings, but I don’t generally get the sense that the general public despises her. Five years ago when she was still Kaohsiung mayor, she routinely had satisfaction ratings in the 70s. I don’t think she is still that popular, but I doubt she is as widely disliked as Han Kuo-yu, Ko Wen-je, Ker Chien-ming, Ma Ying-jeou, or Lin Chuan, just to name a few prominent but not very loved politicians. It is instructive to me that none of the blue media has put out a poll recently showing how the public feels about Chen Chu. I would expect that if the public really hated her, they would let us know.

The DPP certainly has shown any indication that they think Chen Chu’s nomination is unpopular. When the KMT broke into the chamber a couple weeks ago on Sunday evening, it announced its intention to stay there for three days. However, unlike the script in the beef brawl when the majority KMT could not clear out the disruption, this time the majority DPP reacted promptly and cleared the KMT off the podium the on Monday. The same scenario played out a few times this week, when the KMT occupied the podium, and the DPP promptly mobilized its members to push them off. DPP legislators proved themselves quite willing to stand up and physically struggle for their party’s position. The KMT caucus demonstrated a certain level of intensity of their preferences, but the DPP caucus clearly matched that level. With similar levels of intensity, the DPP’s numerical advantage easily proved decisive.

 

This is where this brawl is perhaps different from most other brawls of the past two decades. Since the DPP won the presidency in 2000, the two big parties have been fighting over the median voter. Brawls could usually be understood in terms of majority public opinion. The opposition party started fights when the majority party was doing something that most people didn’t like, and they drove home the message that the majority party was out of touch with mainstream values. I haven’t seen much evidence that the general public is upset with Chen Chu (or even cares very much about this nomination). The messaging certainly is not aimed at median voters. This time, the KMT seems to be obsessed with communicating with its die-hard loyalists.

The KMT has horrible polling numbers right now. KMT party ID has been bleeding since early 2019, and the past six months have been particularly awful. The KMT has been stuck in a terrible rut, watching the DPP government successfully navigate the Covid crisis. At first, the KMT tried to object to a few policies, such as how to distribute masks. However, they made a few clumsy mistakes and eventually decided it was better to shut up and not publicly oppose what was quickly becoming a tremendously popular government response. This was the right choice, but it condemned them to several months of silence, watching ineptly as government approval ratings soared. Meanwhile, the KMT’s own support kept falling, perhaps because it wasn’t providing any energetic opposition. The KMT’s numbers have gotten so bad that it has to take seriously the possibility that it could fall into third place behind Ko Wen-je’s TPP. They’re almost certainly going to get blown out in the Kaohsiung by-election, but they need to come in a clear second place. In short, the KMT desperately needed to do something, anything, to shore up its core support.

This is why the KMT’s message makes sense. The median voter might not instinctively agree that Chen Chu is unfit, horrible, corrupt, and putrid, but die-hard KMT loyalists probably do. Han Kuo-yu rose to prominence two years ago talking about how badly Kaohsiung had been governed and darkly hinting that the DPP, after twenty years in power, had piled up abuse after abuse. All those Han fans were fed a steady diet of anti-Chen rumors and innuendos, and after two years, they probably have no reason to question whether Chen is, in fact, unfit for the CY. The KMT didn’t need to put Chen on trial for this audience; they already assume she is guilty. What the KMT needed to do for this audience was simply to reassure it that they are really fighting the detested DPP government.

In a sense, this takes us back to the early 1990s. In the late 1980s, legislative brawls tended to center on big questions of democratization in which the brawlers were appealing to mainstream public opinion. However, by the early and mid-1990s, those big questions had mostly been resolved. In their place, we saw conflicts in which a 60% KMT was opposed by a 35% DPP. The presidency was not really at stake, since few people could conceive of the DPP actually winning, and the legislature had a somewhat proportional electoral system, so the DPP didn’t need to win the median voter in order to expand its power. As a result, the DPP was free to instigate a brawl if they thought they had 35-40% support. The current KMT has fallen so far that they might be in the same position. Of course, they’d love to have over 50% support in order to win power in today’s majoritarian system. However, they NEED to maintain 35% in order to maintain their position as the biggest opposition party. Their first priority is no longer to appeal to the median voter; instead, they must consolidate their base. We haven’t seen a party make this political calculation in over two decades.

 

Both sides made some mistakes in handling this brawl. The KMT made a big mistake by allowing some of its legislative staff to get involved in the pushing and shoving in the courtyard outside the legislature while trying to block Chen Chu from entering the chamber. Legislative aides are allowed to be in the courtyard, but they do not have any special status. The reaction was entirely predictable. Since legislative aides are not legitimate combatants, the majority mobilized security to take their information and deal with them. Also, since the KMT was unfairly using legislative aides, the DPP used police to form a human shield to escort Chen through the courtyard. The KMT screamed that the DPP was activating its police powers, a clear violation of normal practices established over the past thirty years. In fact, it was not. The speaker’s police powers (or what Americans refer to as using the Sergeant-At-Arms) refers to using security forces INSIDE the chamber. Again, access inside the chamber is strictly controlled, and security forces must be explicitly ordered by the speaker to enter and perform a specific task. Speaker Yu did not do this. Nevertheless, the sight of police escorting Chen through the courtyard to the building was not a good look for the DPP. They would have been better off mobilizing their legislators for this task.

The first time the KMT broke into the legislature and tried to barricade themselves inside, they arguably violated another unwritten rule. It is acceptable to enter and even break the glass door to do so. It is also acceptable to barricade the chamber doors with tables and chairs, and even to try to secure to barricades with ropes and chains. However, it was going to fair to put down strips with nail-like protrusions. The unwritten rules say that the majority has the right to try to retake the chamber by breaking through the barricades, and the nail-like objects could have seriously injured someone. You do not have the right to do anything potentially lethal or dangerous. They also jabbed at people trying to enter the chamber with metal poles, which was also probably an excessive level of violence. So the DPP had some legitimate complaints about excessive KMT force.

The KMT also argued that the DPP used excessive force, but their argument was a bit clumsy. The loudest voice came from Hong Meng-kai, a 37-year old male legislator. When one of the youngest, healthiest, fittest men in your caucus claims that the other side was treating him roughly, it comes off as pitiful whining. (What, were grandma and grandpa bullying you?? Poor thing.)

The KMT accused the DPP of two major procedural violations. First, they accused the DPP of faking a vote. Note, the vote in question was not for Chen Chu or any of the other nominees. It was on a procedural item the previous day. In that vote, DPP legislator Chen Ying was recorded as voting even though she was outside the chamber doing a TV interview at the time. Apparently, the DPP and/or the professional staff made a mistake and handed Chen Ying’s key card to the person in charge of voting by mistake. They were supposed to get Chang Hung-lu’s key card. As a result, Chen voted even though she was not there, while Chang was there but was not recorded as having voted. The KMT charged that this roll-call vote should be voided, and therefore the next day’s votes to approve the nominations should not have ever taken place. This was a sloppy performance by the DPP, but I don’t think it is sufficient to annul the procedural vote, much less the next day’s confirmation votes. The procedural vote passed by a healthy margin, and there is a clear story that this was a bumbling snafu rather than a nefarious attempt at vote fraud.

The KMT’s second procedural charge was that the DPP did not go through all the required steps. Specifically, nominees are usually required to come to the legislature and answer questions from any legislator before they are voted on. The KMT blocked Chen Chu from entering the legislative chamber (even after the police escorted her through the courtyard), so she never answered any questions. The DPP caucus did not forcibly open  a path for her into the chamber so that she (and the other nominees) could make a show of answering questions. I think this was both a violation of the unwritten rules and also a political misjudgment. The unwritten rules say the DPP needed to put her up on the stand to answer questions. If the KMT had disrupted those proceedings, they could have declared that no one else had any substantive questions to ask and ruled that the interpellation had concluded. Politically, I think the DPP should have dared the KMT to spell out its charges of corruption against Chen Chu, since (as far as I can tell) those charges are actually pretty flimsy. If the KMT didn’t want to make the charges, one of the DPP legislators could have asked her a softball question inviting her to refute the meager charges and confidently talk about her lifelong fight against corruption while declaring herself competent and capable. Instead, they voted to skip the interpellation session entirely and move directly to a vote. The KMT, the TPP, and the NPP have all questioned the legality of this move and vowed to challenge it in court. I’m not a constitutional scholar, so I don’t know what the court will think. However, as a legislative scholar, the most pertinent fact is that Chen Chu got 65 yes votes, easily more than the 57 she needed.  Still, the DPP should have taken a few more hours to struggle through this process. They chose a shortcut, and they deserve to be criticized for doing so.

 

Perhaps one reason that both sides performed their roles so badly is that they are all relative newbies. Speaker Wang had forty years experience in the legislature, and he could explain to everyone why they didn’t want to violate the informal rules. He’s gone now, and the KMT caucus is dominated by several newer faces. Some, like Lai Shih-pao, have been around for a years, but he is a much more ideologically extreme figure than previous elder statemen. He might not care so much for the established norms. Others, such as Hung Meng-kai or Chen Yi-hsin, are brand new and might not know what the informal rules are. There is more continuity on the DPP side, with the glaring exception of the speaker. Speaker Yu had never served in the legislature before 2020. His only experience in an assembly came in the Provincial Assembly from 1981 to 1989. That was a very different era with a very different chamber and very different party politics. His knowledge of the Legislative Yuan was basically zero, and you can see that lack of experience in his ham-fisted handling of this episode. Overall, neither side came out of this brawl very well.

4 Responses to “Brawling and Chen Chu’s confirmation to the Control Yuan”

  1. Grey Says:

    Ignorant question by me, but……..what would happen if the DPP just walked out when the KMT was trying to instigate a brawl, saying, “We don’t brawl with you, we’re mature adults and your brawl-seeking behavior is like that of children” and left the legislative chamber – what could the KMT possibly do, now having no opponent? They can’t pass legislation or anything without the DPP present to make a quorum.

    • Ted Liu Says:

      That option doesn’t seem to exist since the DPP members are the ones who want to adopt legislation – or in this case, approve an executive nominee. Moreover, assuming that the OP is correct on the informal rules of the Taiwanese LY, numerical superiority and advantage in public opinion would suggest that that the majority has a “safe” political option to retake the floor. So yielding to the minority party occupying the floor would be like fleeing the battlefield when one has the numerical and tactical advantage.

      Or for an American who worked on Capitol Hill, declining to retake the floor while enjoying an advantage in members and public opinion would be like the US Senate majority refusing to invoke cloture while having 60 votes and a unified caucus.

      I’d be interested to hear from the author’s response to your question.

    • kezza Says:

      In this case that wouldn’t get the important DPP agenda of the day done, namely getting nomination of Chen passed. So DPP can’t just walk out completely and concede the ground to KMT. KMT’s main goal here is to satisfy their own base, to stop anything getting done, so without a quorum they just had to hold off for the week until the session is over, and come back after summer break and start afresh.

      Anyway, the objective of the governing party is to get their own legislative programme passed, so it is unlikely DPP could just walk away under any circumstances if it was their bill(s) at stake. Outside of the legislature is a different story though, e.g., Tsai’s government handling of the drafting of pension reform in her previous term. The DPP-lead (or rather, VP-lead to be tecnically correct) consultation committee simply decided to let the likes of Harry Li (李來希) and co embarrassed themselves to garner support for DPP’s programme of deep pension cut for teachers, veterans and civil servants.

    • frozengarlic Says:

      I agree with Ted Liu and Kezza. Refusing to engage would simply be yielding to the minority party. Moreover, if the majority party surrendered every time the minority party objected, this would create a strong incentive for the minority party to storm the podium and barricade the doors all the time.

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