KMT caucus brawls because … why?

On Friday, the KMT plunged the Legislative Yuan into chaos. Premier Su was scheduled to give his semiannual report to the legislature on the government’s performance and future agenda. However, the KMT occupied the benches where the government ministers are supposed to sit, overturned the podium that Su was supposed to speak at, ripped out a few microphones, and banged their fists on the desks. The DPP chose not to resist this action, and the presiding officer called a recess. No business was conducted on Friday.

I’ve spent a lot of time and energy over the past few years researching parliamentary brawls, and I’m scratching my head at the KMT’s actions. They don’t make much sense to me. Six years into life in the opposition, the KMT still hasn’t figured out how to be an effective opposition party.

In partisan parliamentary brawls, the first rule for the opposition party is that you must have a clear story to explain yourself to the public. Almost all partisan brawls are initiated by an opposition that wants to resist something the majority wants to do. The opposition should want the story to be about the government’s unacceptable plans, not the violence itself. The government always tries to paint the opposition as violent, anti-democratic, and unreasonable. They are, in fact, taking a violent action in violation of the normal, legal procedures. The opposition’s challenge is to persuade the public that the issue was so compelling that they needed to bring it to everyone’s attention in the most dramatic way possible, they needed to stop it at all costs, that the planned agenda was even more undemocratic than the violation of the legislative rules, or something similar. The brawling makes people look, but the opposition party needs them to quickly shift their focus from the physical confrontation to the controversial issue.

So what was the issue in Friday’s brawl? Well, that’s the problem. The KMT isn’t really putting out a coherent story. They are complaining about lots of things, and those things don’t really fit together.

I think the KMT wants us to believe that they are angry about failures in the quarantine policy that allowed Covid to sneak into the country in April. Great! That’s a governance failure. This is exactly the time for the legislature to exercise government oversight. What the KMT should do is get the premier’s speech over as soon as possible (and no one ever pays much attention to these speeches), and then spend the next week or two in intense interpellation sessions. Ask pointed questions showing exactly how the policy was flawed from the beginning, implementation was lousy, or both. The news will eat up these confrontational interactions between attacking legislators and government ministers making feeble excuses. The KMT will demonstrate that the DPP is terrible at governance, and it would be much better. Interpellation is a great weapon for the opposition!

What the KMT probably shouldn’t do is waste all the legislative time to ensure that there is no time left for interpellation. But that’s what they are doing. They have already wasted three legislative days (ie: a week and a half) without Su giving his speech. What always happens in these cases is that, since the legislature has to move on to other items (such as the national budget), they change from oral interpellations to written interpellations. Written documents in bureaucratic language are boring. I have never seen a media story on something from a written interpellation. If there was a governance failure, this is the best way to make sure people sleep through it.

Instead of ruthlessly dissecting the governance failure for all to see, the KMT has simply assumed that everyone agrees there was obviously a massive governance failure so there is no need to present the evidence. In fact, the government has been pushing back against this narrative, providing arguments that the outbreak was not necessarily a result of the 3+11 quarantine policy for airline workers. Something clearly went wrong, but it’s not clear exactly what that was or even whether it was a governance failure. The KMT doesn’t seem interested in these details, though. The government can continue to present its side unchallenged.

The KMT has insisted that Su should apologize before giving his report. In fact, Su already apologized to the nation back in June, but I guess the KMT wants an apology to the legislature. This seems like something they could repeatedly demand from him in interpellation while they point out his failures. It’s a shame there is no interpellation on the schedule right now.

I’m writing this as if been the clear KMT message all along has been the failure of the quarantine policy. It hasn’t. If you look at the protest signs they were holding up on the floor, you see a lot about procedural justice and nothing about quarantines or the virus. Wait, this is really about procedural justice?? What?? How??

Procedural justice is a theme in a lot of parliamentary brawls. Typically, the government wants to do something, and the minority employs its full bag of procedural dilatory tools to grind things to a halt. They make long speeches, introduce loads of time-wasting amendments, introduce lots of other bills that have to be dealt with first, refuse to confirm the previous day’s minutes, and so on. Majorities often deal with this intransigence by changing the rules. For example, instead of voting on each item individually, they allow a single package vote; they rule amendments out of order; they change the agenda order to move their bill to the front of the line; they allow voice votes instead of time-consuming roll call votes; and on and on. When the rules allow the minority to stall, the majority can always just change the rules. Of course, the minority always screams about this, complaining that democratic legitimacy demands that agenda items go through established procedures and be placed under intense scrutiny. And sometimes, they are so furious with the majorities’ behavior that they launch a brawl. As with most arguments, there is some truth to this idea that the rules must be respected, but it is not an inviolable democratic principle. Minorities have rights, but so do majorities. Legally, the overriding principle is usually that legislative bodies have jurisdiction over their internal workings, so any decision that is supported by a majority is considered legitimate. Public opinion, however, is not always persuaded by this argument. In the public arena, arguments about procedural justice are essentially accusations that the other side is breaking the rules and isn’t playing fair. Winning this sort of public argument can have significant political consequences. (See: Sunflower Movement).

OK. So why is the KMT complaining about procedural justice in this particular case? Uh, no one seems to be explaining that part. As far as I can tell, they are just screaming “procedural justice” without anything further. It’s not as if the DPP changed the rules to ram through a controversial bill. The controversy at hand is that Premier Su is scheduled to give a report, and the KMT is trying to block it. The KMT is the party violating the normal procedures, not the DPP. The KMT has effectively stopped the session from happening, so the DPP hasn’t even had an opportunity to change the rules. Eventually, they will change the rules to expediate or skip this speech and change to written interpellations. (These are steps that KMT majorities pioneered decades ago.) However, you can’t scream that the government is avoiding its constitutional mandate to face interpellation when you were the one preventing them from doing that. “They didn’t follow the procedures because we blocked them from following the procedures. This is procedural injustice!” This just doesn’t make sense.

If you really want to get down into the weeds, there are two things the KMT might be complaining about. First, they introduced several hundred bills that the DPP refused to consider before Su’s report. There were apparently not serious bills – about a fourth were demands that Su or cabinet ministers should publicly apologize. Good luck making that the centerpiece of your public argument. Second, on Tuesday (when there were also some scuffles and the KMT also blocked Su from delivering his report) the KMT accused the DPP of abusing its power to open the front door ten seconds too late. At 7:00am, the KMT was massed in front of the front door, ready to rush in and occupy the podium. According to the KMT, the staff opened the back door promptly on time, allowing DPP members there to get in first. The staff explained that they had tried to open both doors at the same time, but the front door swings outward and it was blocked by the KMT legislators crowded against it. Ok, let me stop here. When you make an accusation of abuse of power, you probably want to talk about some massive corruption scandal, extending executive power into the judiciary, police harassment, or something like that. Opening a door ten seconds too slow is hardly an egregious abuse of power. Moreover, think about what they were saying. In normal times, the doors open, members slowly walk in, sit down, and then nothing happens for an hour because official business doesn’t start for another hour. Ten seconds is irrelevant. The KMT is saying, “We were planning to break the rules by disrupting the normal proceedings, and you made it slightly more inconvenient for us to break the rules. Abuse of power!! Procedural injustice!!”

The KMT had some other themes. One sign said, “No truth, no interpellation” 沒有真相沒有質詢。 Someone needs to explain to them that interpellation is the institutional mechanism by which minorities can force the government to divulge the truth. Other signs said things like “the Legislative Yuan has become the Legislative Bureau” 立法院便立法局 (ie: a government rubber stamp) and a legislator complained to a reporter that “democracy is dead.” The KMT banged on desks, repeating President Tsai’s statement that when the government doesn’t listen to the people, people have the right to bang on desks. In case you think I’m paying too much attention to the signs the KMT caucus was holding him, let me assure you that I read through several media reports and watched several TV news clips looking for a coherent and consistent argument. I made a special point of looking for United Daily News stories to see if a friendlier source would let them present their case. I didn’t see a coherent KMT argument. A procedural justice here, a slow door here, a democracy is dead here, a desk banging there. There was shockingly little about the 3+11, and they often seemed to forget even that they wanted Su to apologize.

It seems to me the most honest sign was the one that simply said “We are protesting” 抗議中 They don’t seem to know exactly what they are angry about, and it doesn’t really matter to them. They know they are mad at the government; they think you should also be mad at the government; and they don’t think they need to explain why. It feels like they didn’t even bother to print any new signs for this event. They just picked up a few signs left over from previous demonstrations and reused them without questioning whether they were appropriate this time.

Another telling sign was the one saying, “opposed to unconstitutional acts and chaos” 反對違憲亂紀. Leaving aside the problem that there is no constitutional question involved in this case, the mention of chaos is notable. Remember, the KMT caucus had just overturned a podium, ripped out microphones, and utterly disrupted the normal workings of the legislature. Yet, they are claiming to be against chaos?? In fact, “chaos” is a common term in current KMT discourse. They are constantly talking about the need to stop chaos and restore order 撥亂反正。This is not really about “chaos,” at least as most people understand the term. As a smart guy sympathetic to the KMT explained to me, they want to go back to the good old days. Chaos means now; order means then. I suspect the halcyon days of order in their minds are the CCK era. Back then, they were respected and government was run by reasonable people. It was more democratic too, since the KMT always won elections, had an unassailable grip on power, and could use state coercion to silence any rabble who caused trouble. Ah, the good old days! It all sounds a bit like Trumpian nostalgia for the good old days of the 1950s, when Blacks knew their place, there weren’t many Browns, it was ok to knock your wife around, no one was gay, everyone was Christian, and you could smoke anywhere. MAGA!

The problem for the KMT is that this muddled message of vague fury doesn’t have a very large audience in today’s Taiwan. Most people don’t want to see a general rebellion inside the legislature. That is almost always the case, but it is especially true right now when the government has reasonably good approval ratings and faces some very specific upcoming governing challenges, such as vaccination policy, economic stimulus, and Chinese military incursions. Now is the time for competent governance, not general revolution. The KMT failed to focus on a single, easy to understand, easily defensible theme for their brawl. Instead, what most people will remember from this episode is the violence itself. The KMT is telling people that it is a violent, unreasonable, kneejerk opposition party. There is a market for that, but it isn’t a large market. Even within the blue camp, there are going to be a lot of people who aren’t happy with legislative violence, especially if they don’t know why it is happening. That’s why the biggest beneficiary of the KMT’s action last week is probably going to be the TPP. The TPP and NPP used the episode to complain that they wanted to responsibly and rationally perform legislative oversight of the executive branch, as is their constitutional duty. Unfortunately, the KMT’s antics had stripped them of this right. The TPP’s electoral market increasingly overlaps with the KMT’s, so blue camp voters disgusted with the chaos in the legislature might be tempted to drift over to the TPP. To put it more bluntly, the KMT essentially screamed that any wavering supporters interested in “rational politics” should go try the TPP. Ko Wen-je should send the KMT caucus a thank-you note.

The KMT’s behavior last week was self-indulgent, undisciplined, flailing, and self-defeating. A smart party carefully chooses its battles. This was a stupid choice, and they fought it badly.

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.

the politics of the marriage equality vote

Last Friday, Taiwan passed the Enforcement Act of Judicial Yuan Constitutional Interpretation No. 748, which is pointedly not named the Marriage Equality Act. This is not a post about how wonderful it is for Taiwan to pass such landmark legislation or how it is the first country in Asia to do so. (For the record, I think it is pretty great.) T his post is about the politics behind that momentous act.

This issue has turned into something of a political nightmare for President Tsai and the DPP. Courtney Donovan Smith has done a fantastic job of following all the twists and turns over the past four years, tracing how it all went politically wrong for the DPP. I highly recommend reading that piece before continuing this one, because I’m going to assume all that as background knowledge. I only have two points to add to Donovan’s excellent account. People don’t pay enough attention to President Tsai’s judicial appointments, and it isn’t commonly appreciated just how much the revisions to the Referendum Act changed the entire process and outlook for marriage equality.

Marriage equality would not have gotten to the front of Taiwan’s political agenda if the Council of Grand Justices hadn’t put it there. Yes, there were demonstrations and activists, but they weren’t anywhere near powerful enough to force their way onto the agenda. There wasn’t a consensus in public opinion, and it wasn’t close to getting on the party platform of either of the two major parties. Without the court, this would have lingered on the sidelines, waiting behind other stalled causes such as judicial reform, moving the Taipei city airport, and absentee voting. Why did the court put this case on the agenda? It did so because a majority of the justices took a progressive view of this question. And that happened because President Tsai appointed progressives to the Council of Grand Justices. There are fifteen justices. The President and Vice President of the Judicial Yuan serve four year terms, and the other thirteen serve eight year terms. Due to disputes dating back to the late Chen presidency (ie: the legislature refused to confirm anyone Chen nominated), the calendar for filling vacancies got screwed up. A political settlement allowed Tsai to fill seven vacancies (including the President and VP of the Judicial Yuan) after she took office, so there are four justices nominated by Ma in 2011, four more nominated by Ma in 2015, and seven nominated by Tsai in 2016. All seven of Tsai’s nominees went on record as being in favor of marriage equality. None of Ma’s eight nominees publicly expressed support for marriage equality. The 2011 nominees weren’t asked about the issue. The 2015 nominees were asked to raise their hands if they supported marriage equality, and none of them did. Granted, at least one of Ma’s nominees actually did vote for marriage equality, and only two issued formal dissenting opinions. However, there is a clear difference between the types of people Tsai and Ma nominated. If Tsai had appointed the types of people Ma did, it is highly unlikely that the court would have ruled in favor of marriage equality. In short, Tsai was responsible for getting marriage equality on Taiwan’s political agenda. The activists seem to feel she has betrayed them by not vocally leading the fight, but without her contributions, there wouldn’t even be much of a public fight. No Tsai, no marriage equality.

The second point is that revising the Referendum Act changed everything. The act was revised in December 2017 to lower the thresholds for both proposal and passage of referendums. Under the old law, a referendum needed 50% turnout and more yes than no votes to pass. Since opponents simply declined to vote, the yes side needed to supply 50% of the total electorate. Six referendums had been held since 2004, none of which had come very close to passing. Under the new law, the yes side simply needs to exceed 25% of the electorate, and yes votes must outnumber no votes. When combined with a general election, this effectively removed turnout as a consideration. As long as the yes side got more votes than the no side, the referendum would almost surely pass. In 2018, 31 referendums were introduced, 10 made it onto the ballot, and seven passed. Five of them dealt with marriage equality.

Why was the Referendum Law revised? Two groups were most vocal in support. On the one hand, Taiwan independence fundamentalists have been pushing referendums for years. They would have us believe that referendums (“direct democracy”!!)  are a fundamental democratic right, and any system that doesn’t allow for referendums is not actually a democracy. (As a political scientist, let me comment on that: Horsefeathers! Malarkey! Bovine Feces!) Of course, they actually want referendums to become institutionalized because they hope to one day hold a referendum on Taiwan independence. On the other hand, the growing group of young and alienated voters sees referendums as a way to bypass the established (read: corrupt) parties and go directly to the people. Ko Wen-je’s fascination with i-voting neatly reflects this sentiment (even though it has been a disaster every time he has tried to use i-voting to make a public policy decision). The two groups intersect perfectly in the person of Lin Yi-hsiung 林義雄。The independence fundamentalists, who are disproportionately socially conservative old men, probably weren’t too distressed by how referendums affected marriage equality. However, the young progressives should be. The New Power Party 時代力量 was the strongest voice in the legislature demanding the Referendum Act be changed. Ironically, its first important substantive impact has been to harm marriage equality, one of the NPP’s core goals. Somehow, the NPP leaders seem unable to connect these two points.

The court made its decision in May 2017 and set a two year deadline. Politicians rarely do anything controversial without a deadline, so it should surprise no one that the legislature hadn’t taken action by the beginning of 2018. Before the Referendum Act was revised, marriage equality activists could argue that public opinion was mostly on their side. They had some limited polling, which if you looked at it from just the right angle suggested that more people supported them than opposed them. They also convinced quite a few legislators to sign pledges supporting marriage equality. With the weight of the court opinion behind them, they had a strong case for hoping to get full marriage equality. As legislators went back home and talked to their constituents, we started getting rumblings of popular dissatisfaction. However, there was no authoritative way to quantify this public sentiment. Any circumstantial evidence could be countered by other circumstantial evidence. For example, NPP chair K.C. Huang 黃國昌 was subjected to a recall election in December 2017, and the activists who stood outside collecting signatures were almost all from social conservative groups opposing marriage equality. However, the recall vote failed, and it was easy to dismiss it as simply a KMT-led partisan effort (as I myself did) rather than as a sign of an enormous groundswell against gay marriage.

Once the Referendum Act passed, the anti-marriage groups started organizing almost immediately to put their measures on the ballot. And once it became clear that the public was going to have an opportunity to weigh in, the politicians had a perfect excuse to stall. Why should the politicians decide whether to amend the Civil Code or pass a special law before the voters had a chance to express their opinions? Once the Referendum Act passed, there was zero chance of the legislature doing anything on marriage equality before the November 24, 2018 election.

Stalling wasn’t the most important consequence. The most important consequence was that referendums provided a vehicle for activists to organize, focus, and interpret public opinion. Without a referendum, attitudes about marriage equality were vague. It wasn’t clear how broad or intense anti-marriage sentiment was. It wasn’t even clear if people cared enough about the issue to bother voting on it. There also wasn’t a strong organization of people to voice anti-marriage opinions or to decide exactly the form that those opinions should take. The referendum encouraged the religious organizations to join together under an umbrella group, to put together rosters of volunteers, to hold events, and to galvanize their own attitudes through their activism.

Once the referendum was held, society discovered that public opinion was much more strongly against marriage equality than even the anti-marriage activists expected. There simply is no way to sugarcoat losing by a two-to-one margin. You could tell that the anti-marriage side was stunned by their own success because they almost immediately tried to disown their own referendum. They had proposed a convoluted question in which they proposed “protecting” gay couples’ “rights” through some means other than amending the Civil Code. This measure passed 6.40 million to 4.07 million. (The marriage equality side asked a much clearer but logically equivalent question, and that one failed 3.38 million to 6.94 million.) The anti-marriage side had not dared to ask whether gay marriage should simply not be allowed. After the referendum results were tallied, they openly announced opposition to any legalization of gay marriage. The referendum emboldened them to take a much more radical stance than they had originally dared. Moreover, much of society bought into this new interpretation. Many people did not see the vote as an expression of support for a special law legalizing gay marriage (as it was literally written), but as an expression of opposition to any form of gay marriage.

The referendum erased any possibility of full marriage equality through a revision of the Civil Code. The only path that was politically palatable would be a special law, and even that was going to be extremely hard for the legislature. It took a heroic effort by the Tsai government, especially from Premier Su, to rescue the situation.

 

 

We now fast-forward to last week. With the May 24 deadline approaching, the legislature had to make its decision. In discussing the events of last week, I will draw heavily on two excellent accounts of what went on behind the scenes, one from Mirror Media (鏡週刊) and one from the Central News Agency (中央社). If you read Chinese, I highly recommend you read their full accounts.

The DPP had decided long ago to try to pass the cabinet bill without subjecting its members to extra votes. At the first reading on March 5, the DPP voted to bypass committee hearings and send the bill directly to the floor for the second reading. That vote passed 59-24, with 5 abstentions. All 59 yes votes came from the DPP and NPP; all 24 of the no votes came from the KMT and PFP. The five abstentions were all DPP members. The DPP did not want to force its members to go through public committee hearings in which the KMT would try to get them to openly take unpopular positions. The KMT, in contrast, was incensed that it was denied this fun. In addition to the cabinet’s bill, there were a few other bills proposed. Most of these were from marriage equality opponents, such as KMT legislator Lai Shi-pao’s 賴士葆 bill, which was tellingly titled, The Enforcement Act for Referendum #12 公投第十二案施行法草案. The DPP legislative caucus used its procedural powers to adopt a first-winner voting rule. Multiple versions of each clause would be placed on the agenda. The first one to be passed would be adopted with no need for a vote on any of the other versions. Moreover, the first version to be voted on would be the cabinet’s bill, so if the cabinet’s version passed, legislators would not have to vote on any of the other versions. The KMT screamed about these procedures, but there is nothing particularly abnormal about them. I wrote a chapter of my PhD dissertation on how majority parties use their procedural tools to provide political cover for their members to help those members make politically difficult decisions.

Even with these procedures in place, it was by no means certain that the cabinet’s bill would pass. In the days before the vote, the DPP party caucus polled its members and found it only had 31 solid votes. There are 113 legislators, and even if some of them don’t show up, 31 is not enough. There was even an attempt to organize legislators from central Taiwan to collectively boycott the votes. They knew they could probably count on the five votes from the NPP, and they thought they would have the support of one KMT legislator, Jason Hsu 許毓仁。With 39 other KMT, PFP, and independent legislators, the overwhelming majority of whom they expected to vote against them, they could not afford many absences, much less outright defections. There was a very real possibility that the cabinet’s bill would not pass. In that case, one of the other versions might have passed, or, worst of all, nothing might have passed.

Let’s pause to think about the political implications of such a failure. The Council of Grand Justices had set out a political demand, and there was a possibility that the legislature would challenge that demand. Among the alternate versions of the bill, there were some that did not include the term “marriage” and some that had larger legal differences between the version of marriage for straight couples as written in the Civil Code and the version for same-sex couples as written in this special law. The justices had left it up to the legislature to determine the exact form of the law, but they explicitly demanded that whatever framework was adopted would have to achieve “the equal protection of the freedom of marriage.” If everything had unraveled and the legislature had passed an extremely restrictive bill, it might have led to a constitutional confrontation with the court. It is entirely possible that the court would have lost this struggle. On the one hand, the referendum demonstrated that public opinion is not as favorable to marriage equality as most people had previously believed. In the Wikipedia entry on this case, one justice’s public statement in favor of marriage equality is precisely that people are more accepting now of homosexuality than they used to be. He might have to rethink that statement. On the other hand, when courts fight with elected officials, the courts usually lose. Courts have no power outside their courtroom. In one famous but probably apocryphal quote, U.S. President Andrew Jackson said, [Supreme Court Chief Justice] “Mr. Marshall has made his decision; now let him enforce it.” Although it probably would not have come to such a crisis, there is a sense in which the DPP was fighting a battle to ensure the continuing smooth operation of the rule of law.

More immediately, the DPP was fighting a battle to preserve its authority. When a leader sets out to do something, failure exposes the leader as toothless. If the Tsai government had staked its reputation on passing the bill and failed to do so, we would have seen a sheaf of declarations that Tsai was now officially a lame duck, that her party was in rebellion, that she was no longer the leader of her party, that her presidency was effectively over, and that the country would stumble along leaderless for the next year until a new president was inaugurated.

Finally, in the event that no bill had passed, we would have been plunged into administrative uncertainty. Local governments would have been left to figure out on their own how to (or even whether to) register same-sex marriages under their existing rules. The cries of “government incompetence” would have been deafening.

Politically speaking, one of the primary arguments for the DPP members to stick together was simply that failure to do so would have been worse. The party was not going to dodge the political responsibility for supporting marriage equality either way.

In the event, the DPP did not fail. Two things were critical: it slightly altered the language in the bill, and it launched a massive lobbying campaign at its legislators.

In discussions with its caucus members, it found that the hardest bit to swallow was the phrase “same-sex marriage” 同性婚姻 in Clause 2. Members proposed revisions removing that phrase and instead using wording such as “register in accordance with the directions set out in Constitutional Interpretation No. 748” and “register as same-sex spouses in accordance with the rules set out herein.”  However, Premier Su insisted on including the word “marriage” in the final wording. The compromise version was to remove the phrase “same-sex marriage” from Clause 2 but to instead stipulate that two people of the same sex could form a “permanent union” and to add in Clause 4 that couples should “register their marriage” at the local household registration office. Substantively, I don’t think there is any difference between the original wording and the final version. However, the compromise version was evidently politically more palatable.

The Tsai administration then launched a massive lobbying effort. Every legislator was targeted by multiple people from the party caucus, the presidential office, the cabinet, their geographic region, and their faction leaders. Some of the people involved included premier Su and vice premier Chen Chi-mai, presidential office secretary general Chen Chu and deputy secretary general Liu Chien-hsi 劉建析, caucus leader Ke Chien-ming, Taoyuan mayor Chen Wen-tsan, and a few cabinet ministers. Basically, almost all the DPP’s heavy hitters were enlisted. (The young progressives detest Ke Chien-ming, who they think is conservative and corrupt. Perhaps, but he gets things done, including this progressive reform.) The lobbyists made a variety of appeals, ranging from cold political calculations to emotional appeals about experiences fighting the authoritarian regime in the 1970s and 1980s. Premier Su was particularly effective; one of his entreaties reportedly left a group of legislators in tears.

William Lai is glaringly absent from this narrative. Lai did post a picture of himself with a rainbow background on social media, but he doesn’t seem to have lifted a finger to pass this bill, either when he was premier or in the last week.

The DPP wasn’t sure that its efforts would pay off until Friday morning, when it was finally confident that it had secured the votes of most of its members. The caucus decided not to formally impose party discipline on the votes, but rather to take collectively responsibility without such coercion. Somehow this worked. The group of legislators from central Taiwan that had been threatening a collective walkout instead decided to collectively support the cabinet bill. Other legislators that had been wavering under pressure from religious groups, such as Chao Tien-lin 趙天麟 and Liu Chao-hao 劉櫂豪, also stepped back in line. In the end, the DPP was able to get nearly 60 votes on every clause, more than enough to ensure passage. It ended up looking like an easy win, but a lot of DPP legislators swallowed some incredibly difficult votes.

 

 

So much for the media narrative. Let’s look at the voting record. For readers familiar with the US Congress, a short background note on how voting works is useful. In the US Congress (and many other legislatures), a bill is put before the floor, amendments are processed, and then a final passage vote is taken to pass or reject the entire bill. If no amendments are offered, only one final passage vote is required to pass the entire bill. In Taiwan, there are no final passage votes. Instead, in the second reading, the bill is processed clause by clause. Each clause is voted for and passed independently. There is a third reading in which the entire bill is reviewed again, but this is not supposed to be a substantive vote. The third reading is only to catch errors or contradictions in the legal wording, and it is almost always a mere formality.

Friday’s bill had 27 clauses, so legislators had to pass 28 items: the title of the bill and 27 individual clauses. In addition, the DPP allowed votes on two other items, a vote to not consider Lin Tai-hua’s 林岱樺 (more conservative) version of Clause 8 and a vote on the NPP’s (more progressive) version of Clause 27. In each of the 30 votes, a yes vote represented a vote for the more progressive option. The Legislative Yuan hasn’t published the official record yet, so I got the votes by watching the video of the session published on the legislature’s IVOD system. There are two big video boards on which the votes are recorded, and at the end of each vote, the screen is supposed to show both of them, one after the other. Unfortunately, the camera people weren’t always paying attention, and sometimes they never bothered switching back to the second screen. I was able to get most of the votes, but in two cases my vote tally came up one yes vote short from the official tally. In both cases, it looks to me like the most obvious person to have voted yes was Jason Hsu 許毓仁, who seemed to habitually wait until the very last moment to cast his vote. The bigger problem was Clause 18, since the camera never got around to showing the second screen at all. As a result, I will only discuss 29 roll call votes. Clause 18 was a fairly routine vote; most of the later clauses had the same people voting all the same ways. I don’t think Clause 18 would have changed any of the conclusions reached in the following discussion.

The first five votes were the most important. The first vote, over the title of the bill, was the first test of how legislators would vote. It passed 68-27. Clause 1 passed 68-25. Clause 2 was the one that the DPP changed the wording of to avoid the scary “same-sex marriage” wording. It passed 75-22. Clause 3 passed 71-27. Clause 4, which included the word “marriage” was the most difficult vote for many legislators. It passed 66-27. The legislature needed about four hours to get through these first five votes. There was an extensive general discussion before the voting started, and several legislators spoke before the voting on the individual clauses. After Clause 4 passed, the legislature took a short recess. When the session resumed, deputy speaker Tsai took over the meeting, and it went through the remaining votes in less than two hours. For most of them, there was no debate at all; the staff member read the text, and the legislature voted. Almost all of Clauses 5 through 27 passed by either a 66-27 or a 67-26 vote. There was a short recess before Clause 27 so that speaker Su could preside over the passage of the bill.

The five New Power Party legislators all voted yes 29 times. They were the only legislators to do so.

The three PFP legislators voted no the first 27 times and didn’t bother to vote on the last two items.

The three independent legislators were absent.

The 68 DPP legislators had a few different patterns. The speaker and deputy speaker usually don’t participate in roll call votes; Su did not vote, but Tsai did vote (yes) on the first five items. 48 DPP legislators voted the party line all 29 times, including all 17 of the party list legislators (other than Speaker Su).  Eleven DPP legislators voted the party line 28 times but missed one vote. A few of these look like bathroom breaks. For example, Chen Ou-po 陳歐珀 missed the vote on Clause 14, Wu Chi-ming 吳琪銘 missed Clause 20, and Lin Chun-hsien 林俊憲 missed Clause 17. These random missing votes don’t seem very consequential. However, many of the single missing yes votes were on the controversial Clause 4. Liu Chao-hao 劉櫂豪, Chao Tien-lin 趙天麟, Chen Ting-fei 陳亭妃, Yeh Yi-chin 葉宜津, Ho Hsin-chun 何欣純, and Chen Ying 陳瑩 all voted the DPP party line 28 times, but they were absent on Clause 4. Tsai Shi-ying 蔡適應 was absent four times, on Clauses 3, 4, 14, and 20; he voted with the party the other 25 times. I think these seven legislators were trying to both support the party line and also dodge a controversial vote. By the time they took the vote, they were certainly aware that their vote would not be decisive. Still, they did skip the single most important vote.

Five DPP legislators broke ranks and refused to show up at all. Huang Kuo-shu 黃國書, Chiang Yung-chang 江永昌, Hsu Chih-chieh 許智傑, Hung Tsung-yi 洪宗熠, and Yang Yao 楊曜 missed all the votes. Of these, Hung and Yang represent rural swing districts. If the party is going to forgive anyone for breaking discipline, they would be at the top of the list. Huang and Hsu, in green-leaning urban districts, have far weaker excuses. Finally, there is Lin Tai-hua 林岱樺, from a deep green district in Kaohsiung. Lin is perhaps the most vocal opponent of marriage equality within the DPP caucus, and she even offered her own (far more conservative) draft of the bill. Unlike the other opponents, Lin showed up and voted. She voted yes 18 times and no 11 times; she was the only legislator to vote both yes and no. I’m not sure what message she wanted to communicate with that action.

The 34 KMT legislators also had a few different patterns. 18 voted no all 29 times, and five others voted no at least 26 times but missed a few votes. Ma Wen-chun 馬文君 voted no four of the first five items (missing Clause 1) and then stopped voting altogether. Lin Li-chan 林麗蟬 and Wang Jin-pyng 王金平 missed all 29 votes. These 26 KMT legislators collectively cast zero votes in favor of marriage equality.

At the other end of the spectrum, I have Jason Hsu casting 24 yes votes, missing two, and voting to abstain three times. Recall, I think those two absent votes were probably actually yes votes. His three abstentions were on Clauses 7, 20, and 26, which seems pretty random to me. He was the only legislator to vote with the NPP on the NPP version of Clause 27.

This leaves seven KMT members who voted yes between one and three times. Wayne Chiang 蔣萬安, Ke Chih-en 柯志恩, Lee Yen-hsiu 李彥秀, Lin Yi-hua 林奕華, and Chen Yi-min 陳宜民  all skipped the first two votes, voted yes on Clauses 2 through 4, and then took the rest of the day off. Hsu Shu-hua 許淑華 voted yes on Clauses 2 and 4, and Lin Wei-chou voted yes on Clause 2. I’ve spent a lot of time trying to figure out what I should think about their action. On the one hand, they voted yes on the three most critical clauses. On the other hand, they skipped out afterwards, and pointedly did not vote for the rest of the bill. If you are a supporter of marriage equality, wouldn’t you want to be on record as supporting the entire bill? On the third hand, this was a DPP bill. The KMT was entirely cut out of the process. Once they went on record as supporting marriage equality, they also wanted to express displeasure with the DPP’s actions. Expressing both substance and partisanship is entirely reasonable. On the fourth hand, the insider narratives indicated that these seven KMT legislators’ intentions were entirely unknown to the DPP caucus leaders. Because the DPP caucus leaders were expecting support from only Jason Hsu, they felt pressure to alter the language of the bill. They didn’t make substantively serious alterations, but they considered doing so. If the KMT legislators had openly expressed support for the original language, they might have ensured that the strongest version possible passed. On the fifth hand, maybe they, like those wavering DPP legislators, were only willing to vote for the altered language. On the sixth hand, their open support might be the bulwark that prevents other KMT politicians from trying to overturn the bill in the future. On the seventh hand, perhaps if the DPP hadn’t been able to cobble together enough votes, they would have let the bill go up in flames. They pointedly sat out the first two votes, which were the proof of strength. On the eighth hand, who the hell has eight hands?

Aside: I do think this vote was extremely savvy for Wayne Chiang. I assume that, as Taiwan gets used to the idea of same-sex marriage, the yes vote will look better and better. Unlike many other legislators who have difficult elections this year, Chiang can afford to think a few years down the road. He will probably be the KMT’s Taipei mayoral candidate in 2022, and that will put him on the short list for the presidency somewhere between 2028 and 2048. He will be able to point back to this vote as an example of foresight, progressive values, and the courage to take an unpopular position.

Aside continued: In contrast, Johnny Chiang 江啟臣, one of the KMT legislators who voted no all 29 times, tried to claim that the KMT wasn’t really against marriage equality but were simply expressing anger with the DPP’s procedural tactics. Johnny Chiang is sometimes touted as a future KMT leader, but this statement was pathetic. There are some days in which you can complain about procedures, but this wasn’t one of them. The international media didn’t turn its eyes to Taiwan because they were interested in the DPP’s committee referral strategy. There are some times when a milestone decision is before you and you have to take a stand. This was one of those times. His grandchildren won’t care about procedures. They will only care if he was on the right side of history, whichever side that turns out to be.

Overall, the bill was the DPP’s bill, and the DPP provided the votes to pass it. DPP legislators had 1972 votes to cast, and they voted the party line 1749 times (88.7%). From a different perspective, there were 1875 total yes votes cast. The DPP provided 1688 of those yes votes (90.0%), the NPP provided 145 (8.6%), and the KMT only provided 42 (2.5%). In contrast, the KMT provided 662 (81.3%) of the total 814 no votes. While some media reports played up the DPP defections and the KMT yes votes to give the impression that both sides acted similarly, that simply isn’t correct. A small number of KMT legislators gave a small amount of support, and a small number of DPP legislators withheld their support. However, the main pattern was that the DPP overwhelmingly supported marriage equality, and the KMT mostly opposed it.

Effort to recall Ker

Hey, there’s a bit of election news in Taiwan. As part of the current battle over marriage equality, there are efforts to recall DPP floor leader Ker Chien-ming 柯建銘.

[As an aside, I haven’t paid particularly close attention to Taiwanese politics over the past ten months. Rather, I have watched developments in Europe and America, often rapt in horror. We seem to be on the cusp of a fundamental shakeup in the international order, and, in my darkest nightmares, I worry that a democratic implosion is right around the corner. I’m not sure if it is reassuring or terrifying that Taiwan is preoccupied with “normal” political controversies, such as how to schedule vacation days, blissfully unconcerned that the rest of the world looks like it might be about to go up in flames. Is this oasis of calm one of the few sane spots in the world right now, or is it sticking its fingers in its ears and willfully ignoring the looming storm?]

The Taiwan Law Blog speculates that I do not support the efforts to recall Ker Chien-ming. That is correct, even though I support marriage equality. I explained my general dislike of recalls in the post the Taiwan Law Blog links to, and I stand by that reasoning. When the votes are counted, the election should stop. The battle over who occupies the seat should be settled until the next regularly scheduled election.

Recalls have a role, but they should only be used as a last-ditch resort when an elected official has fundamentally violated the implicit contract with the voters. I do not believe Ker Chien-ming has fundamentally violated his contract with his voters. When he ran, I do not remember him ever taking a public stance on marriage equality. His campaign was about representing the DPP and supporting Tsai Ing-wen’s agenda in the legislature. Marriage equality was merely one, very small part of that agenda. No matter what he does on this issue, it is hard to imagine it constituting a fundamental betrayal of his positions.

What do I think would be justifiable grounds to launch a recall? To give one example, I think South Korean President Park has fundamentally violated her contract with the voters. Massive corruption, allowing an unelected and unappointed spiritual advisor to make major decisions, and all the rest of it were clearly not what the Korean voters had in mind when they voted for her.

To go back to Ker’s case, since Ker’s central appeal was being a good party soldier, if he suddenly emerged as an intransigent opponent of Tsai’s agenda and plotted with the KMT to thwart her proposals, a recall would be justifiable. If we confine the hypothetical to the issue of marriage equality, if Ker had made support for marriage equality a central issue in his campaign but then had decided to throw his support behind a separate law that did not grant full equality, I think that would probably still be defensible and not justify a recall. After all, it is eminently defensible to compromise for 50% or 75% of your original goal. If he did all that, and then we further learned that he had accepted a massive bribe from an opponent of marriage equality to change his position, then a recall would probably be justified. In that case, Ker would have ignored his voters’ demands in favor of the briber’s demands. Ker’s current behavior is nowhere near these thresholds, and I hope the recall effort fizzles out.

The Taiwan Law Blog suggests that, instead of trying to recall Ker, perhaps marriage equality activists should campaign for him to lose his spot as the DPP party whip. I think he and many others are making the same mistake that President Ma made when he tried to purge Speaker Wang in 2013. They are imagining that the party floor leader is pursuing his own agenda.

In fact, what successful floor leaders do is to help the party rank-and-file get what they want. Sometimes, this means that the floor leader has to take some public heat in order to shield the backbenchers from criticism. In the American case, the classic example is from budgetary politics. A house member knows that a particular spending item should be cut but it is also very popular back home. The backbencher needs the speaker to arrange the agenda so that he can tell his voters that he fought hard to keep the item in the budget but he just couldn’t overcome opposition from everyone else. Sometimes, the legislator will even single out the speaker for criticism, and a good speaker understands what is happening and facilitates it. In 2013, President Ma blamed Speaker Wang for not pushing the Services Trade Agreement strongly enough. Ma should have realized that Wang was protecting KMT legislators who did not want to defend support for particular clauses to their voters.

In today’s case, Ker is probably protecting DPP legislators as well. Most DPP legislators have publicly come out in support of marriage equality, probably because they cannot afford to alienate progressive activists and voters. They certainly do not want to alienate young people. (Ask Hillary Clinton if alienating young voters has any costs.) However, Taiwanese society has hardly reached a consensus in support of marriage equality. The surveys I have seen suggest that support and opposition are about evenly split. I am a bit skeptical of these support levels. While elites and young people have mostly come to a consensus on gay marriage, I suspect the rest of society has not. To put it simply, I doubt that Taiwan has wrestled with this issue enough yet. To too many people, homosexuality is simply an idea rather than an everyday reality of many friends and family. There are still a lot of moms and dads my age or older who grew up with the unchallenged assumption that homosexuality was weird and/or wrong, and you can’t simply tell them that they have been prejudiced all their lives. They will need some time and a lot of discussion before they come around. Moving too quickly could cause a backlash, and I suspect that many DPP legislators intuitively grasp that not everyone in society is comfortable with rewriting the social rules just yet. If there were actually overwhelming support for marriage equality in the DPP caucus, Ker would make it happen quickly. He hasn’t been re-elected party whip time and time again because he ignores the rank-and-file’s wishes. If he is stalling or pushing some compromise package, it is almost certainly because they are asking him to do it. Moreover, like any good floor leader, he is taking the public criticism so that they won’t have to.

So what do I suggest for marriage equality activists? Ker Chien-ming is not your problem. Your problem is that you haven’t yet thoroughly sold Taiwanese society on the idea of marriage equality. To put it another way, the DPP caucus looks like it would like to change the law, but activists haven’t done enough work changing minds among ordinary voters to make DPP legislators feel comfortable taking this step. Rather than bullying or threatening Ker Chien-ming, activists should be focusing on broader society, explaining why marriage equality is a good idea that everyone can support. The good news is that the marriage equality side has good arguments and, with a lot of discussion and persuasion, should be able to produce a stronger consensus in society. When that happens, resistance in the legislature will melt away.

Cross-straits agreements monitoring framework

On Monday, June 23, I participated in a conference on legislative oversight at the Brookings Institute in Washington DC. The conference received quite a bit of media coverage, though not necessarily on the topic of legislative oversight. Keynote speaker Su Chi criticized the legislature’s current internal rules, especially the practice of caucus consultations (政黨協商). Caucus consultations are supposedly the darkest corner of Taiwan’s political system. They thwart the will of the majority, enhance corruption, make Speaker Wang into a dictator, erode traditional values of honesty, chastity, and filial piety, and make ice cream taste bitter. (Maybe I’m remembering Su’s talk a bit incorrectly.) Of course, this is all part of the Ma government’s ongoing campaign to purge Wang and tighten its grip over the legislature in an effort to push through its version of the Services Trade Agreement (and other legislation). Caucus consultations[1] are an easy target, but calling for their abolition is more about political infighting than improving the legislative process. I’m not a big fan of caucus consultations, but they exist within a certain context. In order to eliminate this step, you have to also overhaul several other parts of the legislative process. I’ll discuss that some other time in some other post. For now, I’ll note that no one at the Brookings conference disagreed with Su Chi because we were discussing legislative oversight, not caucus consultations.

 

In this post, I’m going to summarize my presentation. I was asked to discuss the pros and cons of various proposals for the Cross-Straits Agreements Monitoring Framework 兩岸協議監督條例 (CSAMF).

The first thing I learned in preparing for the talk was that oversight may mean something very different in Taiwan than in the US context. In American politics, oversight refers to how Congress monitors, guides, and controls the executive branch as the executive wields the powers delegated to it by Congress. Congress is the source of authority, typically writing a law saying that the executive may do something in order to achieve a certain goal. As such, oversight involves defining policy goals. In Taiwan, most people do not see oversight in the same terms. The Executive Yuan (EY) is given much broader authority to define policy goals, and many people consider the Legislative Yuan’s (LY) job simply to be to scrutinize EY actions in order to ensure that there is no corruption or other obvious failing in implementation. Scrutiny is, of course, also a critical element in American notions of oversight, but the power to set policy goals is much more important. I am not arguing that there is a consensus either in Taiwan or in the USA, but merely that actors in the USA are much more likely to see the legislature’s attempts to guide politics as legitimate than their counterparts in Taiwan.

This basic philosophical question of the appropriate balance of power between the legislature and the executive is evident in the various CSAMF bills. As of last week, five bills had been introduced since the beginning of April, by the EY, TSU, You Mei-nu 尤美女, Li Ying-yuan 李應元, and Chiang Chi-chen 江啟臣. The DPP introduced a bill in January, but that was long before the Sunflower Movement changed everything. The DPP has promised to introduce a new bill, but they had not done so before I left for DC last Saturday.

Of the five current bills, the two most important are the EY bill and the You bill. You is a DPP party list legislator, and the bill was cosigned by most members of the DPP caucus, but this is not a DPP bill. Rather, the You bill represents the Sunflower Movement. It was written primarily by Lai Chung-chiang, a lawyer closely associated with the students, and it presents the Sunflower vision of a strong legislature. Lai explicitly modeled his bill on the American and Korean practices, taking the strongest powers of the legislature from each country. In the Sunflower bill (as I will call it from here on), the legislature is active at every step of the process, laying out goals, deciding how the process will unfold, and actively managing the negotiations. This is in marked contrast to the EY bill, which states explicitly in the proposal that the EY has the power to decide and execute policy and the LY only has the power to oversee (ie: scrutinize) and ratify. In fact, the EY bill does more to restrict the LY than to empower it.

We do not yet have a DPP bill, but based on my limited discussions I will speculate about the DPP’s stance. Remember that this is speculation and may not correctly represent the DPP’s actual positions.

On the philosophical question of an appropriate balance of power between the LY and EY, I got the impression that the DPP wants the legislature to be stronger than it currently is, but not that much stronger.  Fundamentally, the DPP seems to accept the idea that the EY should lead the policy process.

 

Let’s look at several concrete aspects of the various bills.

All the bills suggest that the EY has the responsibility to report to the LY.  In the EY bill, this is basically the only responsibility the EY has toward the LY.  The EY bill states that the EY has the responsibility to report, explain, and answer questions.  It does not indicate that the EY has any responsibility to heed the reactions to these reports.  Rather, the impression is simply that the EY is informing; the communication seems to be in one direction only.  The Sunflower bill looks quite different.  It states that the LY can require the EY to report at several stages.  Note that now the LY has the initiative to require the report. Moreover, the LY can reject the report or require changes to the EY’s policy direction. Rather than simply listening passively, the LY is an equal (maybe dominant) partner determining the policy line. Further, the Sunflower bill provides for administrative and civil penalties if bureaucrats ignore LY instructions.

 

One of the thorniest questions is how to deal with associated legislation. Currently, if other changes can be made by executive order, the EY can simply inform the LY of the associated legal changes. These items are sent to the LY “for record” (備查案). Such items are typically read out in committee, but that is all that needs to be done. No vote is taken. The EY makes the decision as to which items can be handled by executive order and which need a law to be amended. This is a fairly large gray area, and the Ma administration has used its leeway aggressively. For example, all of the agreements made before ECFA was signed were simply sent to the legislature for record. This caused quite a bit of consternation to many in the green camp who felt that such important changes needed the approval of the legislature. (Don’t blame Ma for the current rules. They were set up for maximum short-term flexibility under President Chen, whose team was infamously unable to see into the future. This is an important point to remember when the new set of rules is made.)

The EY basically maintains the current system. However, it further strengthens the EY position by adding a time limit to items sent for record. Under the EY bill, if the LY doesn’t process items for record within six months, they are automatically considered approved. That is, the LY cannot passively stall; if it wants to reject an agreement it has to actively vote against it. (A bill introduced by KMT legislator Chiang Chi-chen 江啟臣 is even more extreme: All of the associated legislation is to be considered along with the main agreement, and all of it is voted on in a single package vote.)

The Sunflower bill is radically different. It explicitly says that the main agreement cannot go into effect until all associated legislation is passed, and there is no time limit for this to occur. The EY can still decide what is sent to the LY for record, but the LY can change any item from for record to for consideration (審查案)(requiring a vote) with only a 1/3 vote. Moreover, if the legislature does not process a for record item within three months, it automatically becomes a for consideration item. In short, the LY can passively veto any agreement simply by refusing to act on associated legislation.

The DPP position is unclear. My impression is that the DPP’s main concern is simply to expand the range of items sent as for consideration. That is, anything that really matters should need the active approval of the legislature.

 

Both the EY and Sunflower bill allow for bodies other than the LY to engage in oversight. The EY bill stresses the importance of national security, and insists that every agreement should be thoroughly reviewed by the National Security Council and also by expert committees. There are two interesting points here. One, the EY bill gives more oversight power to these bodies than to the LY. Whereas the LY is only allowed to listen to reports, the NSC and expert bodies are supposed to weigh in with concrete suggestions that the EY must then take into account. Two, if you don’t already trust the EY, these bodies won’t reassure you very much. The NSC is appointed by the president, so if the president strongly wants something to pass, the NSC probably will not stand in the way. The expert bodies are to have 30 members. 27 will be appointed by parties proportional to their legislative delegations, and the other three will be appointed by the EY. That is, the EY will have a reinforced majority on these expert bodies. (At any rate, expert bodies generally don’t cause problems for the authorities.) In sum, the EY claims that citizens should feel confident that any security issues will be carefully considered by the EY and its allies.

(One wonders if the drive for “security” is really cover for lack of transparency.)

The Sunflower bill places less emphasis on security and more on impact assessments, especially economic, environmental, and human rights impacts. It does this by empowering the LY to hold a series of public hearings, inviting a variety of societal actors to express their opinions. Note that the LY, not the EY, is running the process in this version. This strategy is directly taken from the US Congress, which places great importance on setting up “fire alarms.” (Congress empowers constituents to be able to investigate proposed legislation and alert it whenever they see something that they don’t like. This way members of Congress don’t have to do the hard work themselves.)

 

Should the legislature have the right to demand changes to an agreement and/or reopening of negotiations? The EY bill states that the LY has the power to accept or reject, not to amend. This position is based on the idea that in multilateral international agreements, any demand for amendments would require reopening negotiations with all signatories, many of whom may already have started their own ratification process. In such cases, demands for amendment are tantamount to rejection.

This logic is a bit disingenuous in the case of cross-straits agreements. Agreements between Taiwan and China are bilateral, not multilateral. If one side demands a change, there is nothing to stop the other side from accepting that change or demanding its own counterchanges. The multilateral necessity for an up or down vote is simply not present.

The Lai bill clearly rejects the EY position. The LY is given the power to demand revisions at every stage. Before the negotiations start, the LY can demand changes to the goals. During negotiations, the LY can demand changes. After the agreement has been signed, the LY can demand that the negotiations be reopened.

The DPP position seems to be somewhere in the middle. The LY should be able to ask for changes. However, practically speaking, this power is unlikely to be used. What the DPP really wants is for the EY to listen to LY demands (formally or informally) earlier in the process and to incorporate LY positions into its own goals. That is, the EY and LY need more communication.

 

Finally, there is the question of whether political agreements should be treated differently from economic agreements. In the EY bill, there is no distinction. In the Sunflower bill, the threshold is much higher for anything that touches on questions of sovereignty (and a host of other “important” categories). These agreements would need 3/4 approval in the legislature, and then they would need to be approved by the general public in a referendum.

 

Regardless of whether the legislature approves the Services Trade Agreement, a monitoring framework is needed. My personal opinion is that the EY bill gives far too much leeway to the EY. It is only a slight exaggeration to say that there is more “oversight” in the title of the EY bill than in all the actual articles combined. The LY needs to be involved in order to legitimize the process. Much of the controversy over the current Services Trade Agreement has been caused precisely because the EY seems insistent on monopolizing the entire process. At the same time, I do not think it is practical or desirable to set up an American-style co-equal partnership between the LY and EY. The LY simply doesn’t have the capacity at present to negotiate agreements, and I worry about whether individual legislators would be able to extract too many concessions for their own personal gain. The system will work best if the EY leads the process but also allows a substantial amount of input and supervision from the LY.

 

 

[1] I have translated政黨協商 as Inter-Party Negotiations. My colleague Fang-yi Chiou prefers Party Negotiation Mechanism. I will stick with Su Chi’s term in this post.

LY considers restrictions on MAC

On Friday, something quite important may have happened.  At the legislature, party leaders agreed to put a fascinating item on the agenda for Tuesday.  The DPP and TSU will introduce a resolution limiting what Mainland Affairs Council Minister Wang Yu-chi can say or do at his upcoming meeting with Chinese counterparts.  Of course, the DPP and TSU don’t have the power to control the agenda.  Critically, the KMT party leaders and Speaker Wang also agreed to let this resolution come before the floor.  The details of the resolution can be found in this story, and, if you read Chinese, these two stories from the front pages of yesterday’s and today’s Liberty Times are a bit more detailed.

The Taipei Times story is on the bottom of page 3, and the United Daily News and China Times buried this story even further back.  They might be correct.  After all, it is quite possible that Tuesday’s legislative business will go unexpectedly slowly and this resolution will never make it off the calendar.  However, I think the Liberty Times’ front page treatment is probably appropriate, and not just because it meshes with their ideological preferences.  This story might be significant in several ways.

First, this resolution is a clear signal to cross-strait negotiators (on both sides) not to expect any major breakthroughs.  The elected politicians are telling the negotiators not to go too far.  They are also telling China not to bother pressing Taiwan for too much at this time.  Even if Minister Wang publicly supports something that China wants, such as the One China framework, they have been publicly notified that this position will be repudiated by the legislature as soon as he gets back.  It might be wiser to wait for another day than to force Taiwan to openly disavow a position.  This direct effect on cross-straits talks is probably the most important angle to the story.  To me, however, it is the least interesting.

Second, this resolution might reflect an adjustment in the relations between the executive and legislative branches.  In a sense, this is an effort to wrest control of a vital policy area away from the executive branch.  Before, the president had been in charge of deciding how fast relations with China could develop.  The legislature has just asserted its prerogative by setting the outer limits of what is acceptable.  That is, they are suggesting that the executive branch can take care of the little details, but the broad vision shall be determined by the legislature.

The closest parallel I can think of comes from American politics.  In the early 1970s, the Vietnam War was increasingly unpopular, and then Nixon ordered a major bombing campaign into Laos and Cambodia.  Congress was fed up with the president’s unilateral use of the American military and passed the War Powers Resolution of 1973, putting limits on the president’s power to use military force.  Congress argued that the US constitution gave them the right to declare war, so the president should not be able to have undeclared wars.  Every president since 1973 has replied that the resolution is unconstitutional, since it inhibits a president’s power to act as commander in chief.  The important point for us is that the power to use the American military had always been considered as one of the major pillars of presidential power.  In 1973, the legislature tried to pry some of that power away from the executive branch by asserting that they, not the president, had the right to determine the broad outlines (which major military conflicts the US would be involved in) of that area of power.  The current resolution in Taiwan is not quite so dramatic.  For one thing, the proposal is for a specific context, not for a general new law.  The resolution will only apply to this visit by Minister Wang.  It does not apply to other delegations that might negotiate in other places or times.  Even so, if the legislature passes the resolution next week, it will be asserting both some very concrete limits for Wang’s upcoming trip AND a more general right to set such limits whenever it sees fit.  I expect that the Ma administration will make at least a minor statement rejecting the legislature’s right to determine the basic course of cross-strait relations.

Third, this story lifts the covers just a little and gives a peek at the KMT’s intense intra-party conflagration.  The war between Ma and Wang is still running hot, even if it isn’t on the front pages these days.  Ma is still pursuing the court case, and there is a good chance that Wang won’t be able to finish out this term.  One of the main complaints from the Ma side about Wang is that he uses inter-party negotiations to get everything he wants.  Here again, the item was put on the agenda in inter-party negotiations, chaired by Wang.  In the Liberty Times stories, Wang says clearly that the KMT reps didn’t want to sign on to the original proposal.  It was only after some give and take that they agreed.  If you read between the lines just a little bit, you can see a resolution that Wang could have easily killed, had he so wished.  Instead, he kept the negotiations alive, cajoled the various sides to give a bit, and produced an agreement that President Ma will absolutely hate.  Wang may genuinely have different preferences than Ma, but it probably didn’t hurt that Ma is trying to politically assassinate him and that this resolution will place humiliating and potentially significant limitations on Ma’s executive branch.

Beyond the feud between Ma and Wang, this also exposes a rift between Ma and the overall KMT legislative caucus.  Putting these preemptive restrictions on Minister Wang basically equates to an admission by the KMT legislative caucus that it doesn’t trust him.  You rarely hear of this sort of thing, except in divided government.  The back channels of communication must not be working very well if the KMT caucus feels it has to send a public message.  President Ma and Minister Wang will hear the message, but so will all the voters.  One part of the KMT is telling the voters that there is a possibility that another part of the party might do something crazy and they are taking steps to ensure that doesn’t happen.  Unified parties don’t do things like this because that telling voters that powerful people in your party are irresponsible is a good way to lose elections.

I’m increasingly persuaded by the argument that Ma is driven by his historical legacy.  To use a more provocative phrase, Ma might have Nobel Fever.  If he does, he will want to do big things with China before he leaves office.  Rather than waiting for the time to be ripe, he needs to act now in the two years he has left.  He can probably already see the shadow of the lame duck creeping up on him, so he has no time to waste.  The rest of the party has a much longer timeline on China.  Their immediate priority is electoral.  They need to cozy back up to public opinion before this year’s elections, and the public is not clamoring for dramatic new agreements with China right now.  This puts Ma at odds with the mainstream of his party, and it seems that the mainstream might be taking precautions to prevent him from pursuing his goals at the expense of theirs.

The resolution might never reach the floor, though if it does I think it will pass.  There are a few extremist legislators who won’t mind going on record as wanting to allow Minister Wang (and the whole ROC government) to support One China or One Country, Two Regions.  However, most will be want to be closer to the median voter.  If they have to vote, they’ll vote for the resolution.  Even if Ma’s allies can mobilize enough support to keep the resolution off the floor, just by putting this item on the agenda the KMT caucus has sent a warning shot to the administration.

legislative deference

Everyone else on the net tries to be the first to break the news.  I prefer to think about stories for a while before I comment.  Here is another post about something that is quite out of date.

 

In a commentary published in last Tuesday’s United Daily News, Su Chi 蘇起 discussed Taiwan’s decline in international competitiveness.  One of the reasons he cites is that Taiwan has acquired a reputation as being an unreliable country in international negotiations.  Several times, the government has negotiated an agreement, and the legislature has delayed ratification, demanded significant modifications, or simply refused to pass it altogether.  Now the legislature is demanding to review the Service Trade Agreement clause by clause, and Su Chi argues that this type of action is eroding Taiwan’s international credibility, which in turn erodes Taiwan’s competitiveness.

I respect Su Chi quite a lot.  He is not a kneejerk ideologue but rather a thoughtful person who quite commonly transcends the neat pro-China / anti-China boxes.  However, on this question, he is simply wrong in placing the blame on the legislature.  More generally, Su’s attack reflects broader shortcomings of the Ma administration, including a strong preference for technocrats, a lack of respect for elected representatives, and a disregard for politics.

 

The legislature’s insistence on an active role in ratifying international agreements is not eroding Taiwan’s credibility or competitiveness.  If Taiwan’s credibility actually suffers, the blame should fall squarely on the executive branch.  The executive branch knows that anything that they sign needs to pass the legislature.  It is their responsibility to be sure that they don’t sign anything that the legislature won’t ratify.  The executive branch should be in constant contact with legislative leaders while negotiating deals.  They should constantly be asking whether each clause will cause a popular backlash and whether legislators might insist on changing; they should constantly be counting votes; and they should never sign anything that doesn’t have enough votes to pass.  If they insist on signing something that the legislature does not support, they have no right to be surprised, indignant, or petulant when the legislature demands modifications.  If the executive branch signs an agreement without first ensuring that the legislature is on board, then it is the executive that is responsible for any delays or modifications to the agreement.  If Taiwan’s credibility is damaged, that is because the executive branch irresponsibly signed an unrealistic pact.

In fact, Taiwan’s negotiators don’t routinely stay in touch with legislative leaders.  Executive branch negotiators make agreements according to their judgment of what is best for Taiwan and then send the final pact to the legislature to be rubber stamped.  Most bureaucrats would bristle at the notion that they should allow legislators to influence their dealings.  That would simply open the door to pork, favoritism, parochialism, and payoffs to special interests.  From the bureaucratic perspective, elected representatives are dirty, corrupt, and unable to see the big picture.  It is far better to keep them out of the process.

This is a fundamentally undemocratic perspective.  Bureaucrats are themselves often beholden to special interests, though they are usually far less aware of this than legislators.  At any rate, the legislature has a different, broader legitimacy than the executive branch.  The executive gets its legitimacy from the presidential election, but the president ultimately represents only a plurality of the electorate.  Society is complex and pluralistic, and many voices that are shut out of the executive branch can only be heard through the legislature.  Some of these voices may appear to some to be “parochial,” “narrow,” or “special interests.”  However, one person’s special interest is another person’s legitimate cause.  Legislators’ careers depend much more than bureaucrats’ on ensuring that voters do not feel they are being treated unfairly.  Bureaucrats routinely envision the world in idealistic, abstract, or simplistic terms, and can sometimes design policy packages that place undue burdens on particular segments of society.  Legislators are more grounded in the messiness of actual society, and they often soften the rough edges of those policy packages by demanding changes.  The easiest way to see this is to think about extreme cases.  In some authoritarian states, well-meaning bureaucrats have implemented tragically horrifying policies, demanding entire populations relocate, causing famine by ordering boneheaded agricultural policies, and wasting public funds by building grandiose planned cities that no one wants to live in.  (For a depressingly long list of examples, see James C. Scott’s wonderful book, Seeing Like a State.)  These sorts of debacles happen far less frequently in democracies because the elected legislatures step in to stop utopian visions from going through.  Democracy demands that legislatures, with their broader base, also ratify important national decisions.  Getting things through the legislature is not simply an inconvenience; it is a fundamental stage in the democratic process.

More generally, the Ma administration routinely expresses a disdain for “politics” and an admiration for “governing.”  The famous bureaucrats of the Chiang Ching-kuo era, such as Sun Yun-hsuan 孫運璿, Lee Kuo-ting 李國鼎, and CCK himself, are held up as paragons of wisdom, foresight, selflessness, moderation, vision, and fairness.  In contrast, the elected politicians of the democratic era seem small-minded, selfish, petty, and short-sighted.  Of course, the CCK-era technocrats didn’t have to ask the population for power.  In a democratic society, using power wisely is important.  Creating that power is even more important.  Democrats must organize networks, articulate positions, make compromises with other ambitious politicians, and win the support of large numbers of voters before they ever get the chance to govern.  Moreover, after they implement a policy, they must retain power in order to protect and nurture that policy.  Politics – creating power – must come before governance – using power.  Demanding that elected politicians defer to bureaucrats is simply unreasonable and undemocratic.

 

The current service trade agreement is a repeat of the same old story.  The KMT-led bureaucracy has negotiated a deal with little to no input from the legislature, and now it is demanding that the legislature ratify that deal without any substantive review.  If the legislature exercises its rights to demand changes, the Ma administration should not whine about how the legislature is eroding Taiwan’s international credibility.  The responsibility lies entirely with the executive branch.

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.