Moderated Parliamentarism

Full Transcript:

Introduction: 

Hello and welcome to the Rules of the Game podcast, where it is my job to discuss and compare democratic institutions.

With Tarun Khaitan I discuss “Moderated Parliamentarism”, a concept of a system of government that he describes in great detail in a paper titled “Balancing Accountability and Effectiveness: A Case for Moderated Parliamentarism”. It seeks to combine the most attractive elements of different regime types and electoral systems – checks and balances from presidentialism, continuous confidence of the political executive from parliamentarism, preventing factions through majoritarian electoral systems, and political plurality via proportional representation systems.

Moderated parliamentarism is a version of semi-parliamentarism, with two symmetric but incongruent chambers that perform different functions. It is a form of government that I have discussed with Steffen Ganghof in a previous episode. So this insightful discussion with Tarun Khaitan is an excellent follow-up to get into some further details and variations of a semi-parliamentary system. While Tarun says that he doesn’t actually see a country adopting his exact version of Moderated Parliamentarism, the paper presents an inspiring case of design thinking with respect to democratic institutions.

Tarunabh Khaitan is Professor of Public Law and Legal Theory, and Head of Research in the Bonavero Institute of Human Rights. He specialises in legal theory, constitutional studies, and discrimination law. He is the founding General Editor of the Indian Law Review and founder & advisor of the Junior Faculty Forum for Indian Law Teachers. He completed his undergraduate studies at the National Law School of Bangalore in 2004 and then came to Oxford as a Rhodes Scholar and completed his postgraduate studies, including his Doctor of Philosophy at Exeter College. Tarunabh Khaitan was awarded the 2018 Letten Prize, an award given every years to a young researcher under the age of 45 conducting research of great social relevance.

Please follow Tarunabh Khaitan on Twitter and I will link to his website in the show notes.

I am your host, Stephan Kyburz, and this is the twenty-eighth episode of The Rules of the Game podcast. I am a political economist with a PhD in Economics from the University of Bern in Switzerland. And I previously held positions at the London School of Economics and Political Science and the Center for Global Development.

You find a full transcript of this episode on my website rulesofthegame.blog. I am always curious to hear your opinion, so just send me an email to stephan.kyburz@gmail.com, and please leave a review and share this episode with friends and colleagues.

If you find my discussions interesting and you’d like to support my work, consider buying me a coffee at buymeacoffee.com and you find the link to it on my website rulesofthegame.blog.

Interview:

Stephan Kyburz: Tarun Khaitan, welcome to the Rules of the Game podcast, I’m very happy to have you on the show.

Tarunabh Khaitan: Thank you very much Stephan. It’s a pleasure to be here.

Stephan Kyburz: So my first question as always is: what is your first memory of democracy?

Tarunabh Khaitan: Can I have two? Because I don’t remember which one was first. I grew up in a small town in India. And one of them is about a broadcast of a parliamentary proceeding on the television. I don’t remember how old I was, but I asked an uncle of mine who was there: What do they do in parliament? As it turned out he didn’t know either, so he told me that they make a lot of noise. And that was, you know, in hindsight quite a – he’s a grownup adult probably knows about the world around him – but had no clear idea what parliament in fact does. And that was very interesting to me. It is interesting to me now, then it was just baffling. The second is that there was a book fair in my small town, […] , so an annual book fair where lots of booksellers would come and set up stores. And I remember going to one of the shops that was selling books in politics. I don’t know how old I was – probably 12 or 13, and I asked for a copy of the constitution. And the seller just looked extremely patronizing at me and said that’s not for children and sent me packing. So who knows what might have happened if I had received a copy of the constitution. Maybe that would have been the end of my potential legal career. So maybe I should be grateful. But those two things still stick in my mind.

Stephan Kyburz: That’s very interesting. Thanks for sharing those memories. And I think it’s super interesting that you wanted to see the constitution very early on, so you wanted to see what foundations the country is built on in terms of legal documents.

So today I’d like to discuss the paper that you’ve written called “Balancing Accountability and Effectiveness: A Case for Moderated Parliamentarism” published in the Canadian Journal of Comparative and Contemporary Law. It’s a very interesting paper, I really enjoyed reading it. And I think it’s really a response to more traditional government systems. So we usually distinguish between presidentialism and parliamentarism and you try to find a way of optimizing a government system that fulfills many of the principles of democratic governance including accountability and effectiveness that a government should really have. But going back to presidentialism and parliamentarism, where do you see like the – what are in your view the most – greatest problems with those more traditional systems.

Tarunabh Khaitan: Sure, I’ll start with presidentialism because in some ways that seems easier to me in terms of identifying problems with. I think the main problem with presidentialism is what Ganghof has called executive personalism, the centralization of vast amounts of executive authority in one person. That’s always a recipe for potential disaster. The second problem with presidentialism, as I’m sure you know, political science literature for a very long time has shown that it’s an unstable form of democracy. It’s a democratic form that’s very likely to fall apart. And that’s not surprising to me. I think a likely explanation – I know that there is a chicken and egg debate in the literature about whether unstable regimes are more likely to select presidentialism or presidentialism is more likely to cause instability – be that as it may – the relationship between democratic instability and presidentialism is quite robustly established. And I suspect the explanation lies in the fact that presidentialism creates losers who are completely out of power in ways that parliamentarism does not. Parliamentarism allows different factions, different social coalitions to have some stake in power and therefore less of an incentive to upend the system itself. So that I think is the major problem with presidentialism: it’s instability and it’s forever teetering on the edge of authoritarianism. And it’s not surprising to me that every wannabe autocrat elected democratically wants to move their system towards a more presidential model. You know whether it’s Sri Lanka, or in many other countries, or Modi in India.

So what is it? What do they know that we haven’t noticed? So that’s my main problem with presidentialism. But with parliamentarism, I think the main, the most important problem is the lack of an effective check on the government in power during its reign. In systems that have the legislature elected in the majoritarian process, or lack of an effective government at all, in systems that use PR for electing the chamber. So parliamentary governance involves two different risks and these risks depend on the type of electoral system that the polity uses. Either it uses a majoritarian system to create a ruling party with an absolute majority in the house, in which case it governs for its term without any real check on its powers. Or as we are seeing currently in Israel it creates huge instability in the system, with many tiny parties holding the balance of power and making governance extremely difficult. Those are – I think – the main risks with parliamentarism at either extreme.

Stephan Kyburz: Thanks for sharing those opinions and insights. And I agree, I think in parliamentarism really the main problem is that on the one side we want to have a good representation of the people in a representative democracy. But obviously that also implies more smaller parties with more specific interests. But this creates, as we know, like an instability in governance. And your suggestion of a moderated parliamentarism definitely tries to balance the more proportional elements that create a good representation in one chamber, and a more majoritarian stable party landscape in the first chamber, that should support the executive governance. But before we come to the details of your suggestion of moderated parliamentarism – you put in your paper a lot of emphasis on the party, the political party and the political party landscape. And as we know parties I think all over the world haven’t had the best reputations and often people especially also now in the U.S., you know with the Republican and the Democratic party, there are a lot of calls for almost abolishing the party. Even though political parties are really important for political work, for productive parliaments. Can you maybe give an overview of why you think parties are really important and maybe also what it implies for your suggestion of moderated parliamentarism?

Tarunabh Khaitan: I think that democracy, representative democracy at least, is impossible without political parties. And we ignore parties at our peril, and we hate parties at our peril. This is not to say that real world parties are perfect, but we need them. And part of the ambition of these people is to think about how we can make party systems more healthy. So the importance of parties for me lies in their ability to reduce what I think of are four key costs that every democracy imposes. So imagine you are a democracy, a direct democracy in a reasonably large state. Direct democracy may well function in a very tiny polity. But for reasonably large states the political participation cost that direct democracy imposes on every citizen is huge in order to make – you know assume a reasonably sized state with hundreds of thousands of people – for one individual citizen to make any meaningful difference even a tiny amount of influence on any aspect of political life would require her to basically give up everything else and engage in politics as a full time occupation. And still the chances, the likelihood of any success will be minimal. What parties do is allow individuals to pick these package groups and moderate the amount of political participation costs they want to incur, by voting for it by affiliating with it, by becoming full members, by becoming party cadre, by becoming party politicians, et cetera. So they allow a whole range of options by reducing the political participation cost for individuals which is impossible without parties. The second thing parties do is they reduce the information cost for voters. In a system of direct democracy, in a system of representative democracy without parties, because even in direct democracy, you will need to elect some executive officials; you will have to have some method of choosing them. You could use sortition, by lot, but if you want to use elections the information cost that every voter has to incur for selecting candidates for executive office, in a partyless system is huge. How do you know? The amount of research and time you have to spend to find out what this candidate stands for, what they’re likely to do in governance is very high, and again party membership reduces those costs. You know of course not perfectly but reasonably well. What is the ideology of this person? What are the types of policies you’re likely to get if you vote for them, etc. The third thing they do is they reduce the policy packaging cost in a polity. Unlike individuals, parties collect a package of sometimes, perhaps internally, inconsistent policies, put them in a package together in ways that allow – sometimes even warring social groups – to come together on the same platform. Because, and this is the ideal of a compromise in politics, that nobody gets everything, but enough people get enough that they can stay within the system and give it legitimacy. And parties alone can offer that kind of packaging role, something like parties will have to do that. Individuals on their own, in a reasonably complex system, simply cannot do that, and parties also reduce ally prediction costs for politicians: who are likely to be forever enemies? Who is likely to be an ally? Who may be someone I can talk to and convince if I do certain things? These are all things that parties make possible. Parties make politics possible in complex systems by giving again a good proxy for who is an ally, who might not be an ally. And these are things that the kind of utopian imaginary that you know currently is taking hold everywhere of partyless system is I think utterly incompetent of reducing, and if these costs are incredibly high, I don’t think we can have a functional democracy in the system.

Stephan Kyburz: I totally agree with that, and also it’s interesting that you mention both direct democracy and sortition as alternatives to representative democracy. Where I think what is really lacking also in those propositions, or that you know a lot of people say that we should just by lot, by sortition have a group of citizens to work on political issues, and I think what is lacking there often is, you know, the political knowledge: How politicians actually have to work with each other and there is a lot of know-how there as well about legislation and how legislation can be changed, a lot of political processes. And I think that’s often not really talked about in these sortition-based political solutions and the same for direct democracy for that matter.

Tarunabh Khaitan: Yeah, Stephan, I could not agree more on that point. And in fact, you know, if I was re-writing this paper, I would probably include a fifth reason for having parties, which is political training and expertise. We imagine politics to be a profession that does not require any expertise and nothing could be further from the truth. Politics at least, well it requires in order to function well, it requires repeated plays. Players who know that they will have to deal with the same people again and therefore certain rules of the game, to echo the name of your podcast, have to be agreed upon. And it requires a certain mode of operating, which can only be learned by spending time in politics. For example, opening yourself to criticism, which by the way human beings are not designed to like. As an academic, I’m used to criticism but I’m used to a very certain type of criticism, right, which is usually engaged. It’s based on what I’ve actually said, it’s measured and it follows a certain format, right? Politicians, they have to face criticism that is frequently unfair, often unmerited, often exaggerated by saying, you know, a lot of it is merited right? But often it’s not, and so it’s a tough job. You have to meet people who are completely unlike you, people from all walks of life. But judges don’t have to, and academics don’t have to and journalists perhaps and journalists do, right, but in different ways. So it is a specialist profession that requires expert knowledge and specialist skills that you’re absolutely right in saying sortition cannot approximate to.

Stephan Kyburz: Exactly, exactly, and also on the other side direct democracy I think can be a check on representative democracy. It can guide certain broad decision making by the people, but it definitely doesn’t substitute for the very tedious, detailed work of political systems at the representative level. And I think what is important to mention is that representative democracy is influenced by special interest groups, by corporate lobbying, by wealthy donors etc. And I think that’s where your paper is also interesting because you try to make the system more stable and also more representative of the people on the one side, while you try to include the elements of effective and stable governance. So moving over to your paper and to finally talk more about moderated parliamentarism, can you give a brief overview of what are the key elements of your proposition?

Tarunabh Khaitan: Sure, so the key idea is, well the starting assumption is that we have had enduring debates about presidentialism and parliamentarism on the one hand, and between the merits and demerits of different electoral systems on the other hand. Because each of those systems brings something to the table, which without it will be lost. So for example, presidentialism incorporates the idea of the legislative check on executive power, which parliamentarism does not. Parliamentarism incorporates the idea of a collective responsibility and of the ultimate legislative check on insecure executive tenure, which makes personalization of power difficult. We’ve already talked about the fact that parliamentary systems result in governmental instability under certain electoral systems, and presidential systems result in regime instability usually. But so each has their advantages and each has its disadvantages. Likewise PR systems as you say are more representative, more representative but incur costs and majoritarian systems tend to result in more effective governments, but also less responsive governments at least to the opposition. So moderated parliamentarism tries to create a system where we can have our cake and eat it too. That is the main objective to see whether we can optimize. We can’t maximize these goals because they are mutually inconsistent. They trade-off against each other. But can we optimize them so that we can have enough of each of these benefits? So that’s one motivation of the paper. The second motivation of the paper is to bring parties to discussions of institutional designing and constitutional law because the assumption of a lot of constitutional scholars is that they take the party system as a given, and think about institutions around it. My view is that institutions and party systems are mutually co-constructive, right? But just as party systems construct institutions, institutions also construct the type of party system we have. So institutionalists also need to think about the type of system that is healthy for democracy, that is good for democracy, rather than just assuming that we’ll have the party system that we have. Of course there are paths dependencies and lots of issues here that, you know, I bracket off for now.

So the paper starts with offering 4 principles that constitutions should seek in relation to party systems. And I’ll briefly just outline them. It says that constitutions should seek to maximize the purpose of autonomy of parties. In that, you know, parties are quintessentially a hybrid public-private entity. They’re not fully public and some mistake to treat them as fully public, because they will fail to perform their link between the state and the people in that unofficial capacity that is best for them to perform that role. But they’re also purposing in that the purpose is to exercise public power. And this classical hybridity makes them complex creatures for constitutional law which likes entities which have either public or private and this hydra type entity is complicated. But that is the key challenge for constitutional law to maximize their purpose of autonomy. The second principle is party system optimization which is a party system, an optimal party system in terms of number of parties, is one which has every salient voter type – and this can change in polities – but every salient voter type represented by a political party. So it’s very dangerous and destabilizing for a party system to have a large voter type – whether it’s say on the economic left-right axis, say the left voters, or […]. But if a polity has a sufficiently large salient voter type, not giving it a political home in a political party is a recipe for disaster, because that voter type becomes an unspent political force and it creates internal pressures within the polity, which will eventually implode, right? So it is important for party system optimization that every salient voter type has a political home, a political party. But it’s also important that the number of parties is not so large that the costs that we talked about parties lowering, they fail to do so. And so the voter information costs will be extremely high in a system which has, you know, a hundred parties or 50 parties or whatever. And so there’s a balance to be struck there between those two. The third principle is party-state separation, which should be pretty obvious. But you know we talk about separation of powers in constitutional studies in terms of institutional separation. I think it’s a lot more important to talk about separation of party and the state, because the idea of a democracy is built on the ruling party leaving office peacefully when it loses elections. The party comes to control the government for a short period of time, but not the state and that the government, the executive government, is only a small part of the state. So that separation has to be ensured. And finally the anti-faction principle, which is that a party system must incentivize, encourage – I’m not talking about hard and fast legal rules here – but systems can do second-order regulation by encouraging parties to act like parties and not like factions. And this is an old distinction in political science. The idea is that factions seek to only represent the interests of a section of the people, whereas genuine parties – even when they are targeting sectional interest – for example, interest of labor, interest of say a religious minority or regional minority, then the policies must be justifiable to all the people on the basis of public reason, on the basis of a broad political ideal that everybody reasonably speaking can sign up to. For example that marginalized communities have the first claim on the state’s resources. That is the principle that everybody can sign up to be irrespective of where they belong. But to say that only a certain group as such should have a claim on the state because of its ethnic identity, for example, that’s not a principle that everybody can sign up to, and therefore that would be a faction. So these are the 4 principles that I believe any system of institutional design must bear in mind when thinking about how to allocate state power.

Stephan Kyburz: And I think it’s really well laid out in your paper. So I really recommend people to read the paper, because these are principles that are in the background that are rarely talked about directly, at least in public. So it’s a really insightful part of the paper. Then how do these principles work in your proposition? So just as an overview, you propose a two chamber system, with a confidence and opposition chamber that is based on a majoritarian electoral law and then an appointing and checking chamber that is based on a proportional electoral system. So that is just the introduction, and you may lay out the details. Just to be clear on the terminology: so the confidence and opposition chamber you call the first chamber, right? And the appointing and checking chamber is the second chamber. And you don’t call it upper and lower chamber, right, because they are symmetric. So please, give some more of the details of the two chambers and how they relate to the executive government.

Tarunabh Khaitan: So here is the idea, the proposed model – and by the way this is not a manifesto – in writing this paper, I should be clear, I’m thinking about a normative yardstick to measure existing systems by. And thinking about this is a thought experiment to use it to think about existing systems and what they might be lacking, right? So I’m not necessarily proposing this as a utopian idea, a vision. I should be very clear about that. But, here is one way of optimizing the benefits of the various debates that we have seen for a long time. In moderated parliamentarism, it’s a parliamentary system, and the key feature of the parliamentary system is first, that the executive is united, unlike semi-presidentialism, the executive power is not divided between a president and a prime minister. The executive power is vested in a cabinet of ministers with the prime minister being the first among equals. So it is a parliamentary system to that extent. What is special about moderated parliamentarism is that it is a form of what Ganghof calls semi-parliamentarism. In semi-parliamentarism, it’s the legislature that is divided. So semi-parliamentarism insists upon a bicameral legislature which has two directly elected chambers. So both chambers are democratically accountable to the people directly. And the third feature of parliamentarism is also present in this model, which is that the term of the political executive, of the cabinet, is not fixed. So they don’t have security of tenure. The prime minister and the cabinet can be fired by one of the two chambers, not by either chamber, and that is why this is semi-parliamentary, not parliamentary in the full fletched sense. So the chamber that can fire the prime minister, I’ve called it that confidence and opposition chamber, that is designed as a centripetal centrist chamber, which approximates to what political scientists call the median voter in some contexts. Of course when you have more than one salient political access in a polity, you may not have a median voter, but I’ll set that aside, that problem aside for a moment. And just describe this chamber which is a majoritarian electoral system based chamber. By the way I should say that, first-past-the-post is often talked of as a majoritarian system, but it’s not a majoritarian system. It’s a plurality based system. First under first-past-the-post in any system with more than two parties, the ruling party can get over fifty percent of the seats while only winning anything between 30 to 50% of the votes – it’s a plurality-based system, it’s not a majoritarian system. But under moderated parliamentarism, the confidence chamber will be based on a genuinely majoritarian electoral system. And a good example of that would be what is called the alternative vote system or the ranked choice voting system. I’m not going to go into the details, but voters typically rank either all or some or the top 3, or the top 2 of their choices, or the approval system where voters don’t rank but are allowed to select more than one candidate that they are happy with, if they’re elected. It’s a candidate based system and the entire chamber is elected in one go, wholesale, and it must have the most recent electoral mandate. So as a whole between the two chambers the confidence chamber must have – temporally speaking – the most recent mandate of the people. And it’ll become clear in a moment how I mean that. The second chamber – and this is the chamber, by the way, the first chamber, the centripetal confidence and opposition chamber, this is the chamber that functions like a normal parliamentary system chamber, which is it elects the prime minister who appoints the cabinet. The chamber can bring in and pass no confidence motions, the government will have to resign. The government must continuously have the confidence of this house.

Stephan Kyburz: So this chamber is really to bring about stable governance with a majoritarian system.

Tarunabh Khaitan: Exactly. So the purpose of this chamber primarily is to get the effectiveness benefit of, effective government benefits of a majoritarian parliamentary system. In majority parliamentary systems, governments are effective, prime ministers are insecure, but they’re insecure in a special way in that prime ministers don’t, to retain office they typically don’t have to watch the opposition so much. But they do have to watch the backbenchers. Prime ministers can get away with a lot, but they cannot get away with annoying, or losing the trust of their own MPs. And as you’ve seen in the UK recently, Boris Johnson lost the trust of his own MPs and had to stand down, right? So there is this check on the prime minister. But it’s the check in terms of retaining office, but that check is internal, that check is the party establishment and again, you know, some people don’t like the word party establishment. But as I’ve just explained I think that is a very positive and valuable feature of a democracy, that strong parties. So parliamentary systems create strong parties vis-a-vis their leaders. And this chamber will enable parties to be healthy and will ideally create parties of governance, which will be brought church parties. They will vie for the second preference votes of the voters who don’t like them enough. So in a ranked choice ballot or an approval ballot, only parties that can at least be tolerated by an actual majority of voters come to office. Polarizing parties tend to be like marmite, they are your first choice or your last choice. And they don’t win in alternative voting systems. So this what this chamber ensures, what it tells parties – and this is how institutions shape parties, right, how institutions incentivize parties – this chamber signals to political parties that if you want to become a party of governance, which is, that if you want to either get power or be the main opposition party that is vying for power, then you need to appeal to second choice votes of voters, who do not like you enough to give you their first choice votes. So you cannot be an object of hatred of the voters. It incentivizes parties to build broad churches. And so the expectation is that only broad church parties will manage to get into this chamber and polarizing parties or single issue parties will struggle to get into this chamber.

Stephan Kyburz: So to summarize, the way I read the paper was that what you have in mind is a Westminster type of government-opposition system in the confidence and opposition chamber, but you tweak the chamber for it to be elected on a moderated majoritarian electoral system, such as approval vote or ranked-choice/preferential vote system, and not first-past-the-post, so that parties have to appeal to a broader segment of the electorate. Yet, still you have this opposition role with a shadow cabinet and the check on the government in that chamber. That’s how I see this chamber.

Tarunabh Khaitan: That’s broadly right. I will just add one more thing to that. So I think that, you know, I’m working on a separate paper on opposition rights and powers and I think that is critical to a healthy democracy. So you’re absolutely right that this kind of chamber will provide for a reasonably unified opposition to the government, a powerful rather than a disintegrated, diffuse opposition with multiple small parties. But this system is different from Westminster in one key respect: which is, because of the electoral system, in that it does not punish small parties as severely as the Westminster system does. So under ranked choice ballot let’s, imagine two different types of small parties in a polity: One is the green party which is a small party, it has evolved into a […] political party. It’s no longer a single issue party in most jurisdictions; environmental protection is key to its agenda. But it also has a fully developed political agenda, but nevertheless it remains a relatively small party and often associated with a single issue in the minds of many voters. But so let’s assume a green party and let’s assume a nativist far right majoritarian party. These are all small parties in a given jurisdiction. In this confidence chamber, neither of these two parties, the Greens or the Nativist Party is likely to win any seats, or many seats. But that is not where the distinction ends, the system treats the two parties completely differently. Why? Because before an election, members of the centrist larger parties, the mainstream parties, parties of governance, will want the second choice votes of the Green party and in order to do that, at least one of them is likely to make a deal with the Green party. And this is how it has worked out in Australia, and there’s good evidence to see it and function there. But the pre-electoral deals, where for example, say Labour tells the Greens that in exchange for putting two of your key policy commitments in our manifesto, will you advise your voters to put us down as their second choice, right? So these pre-electoral coalitions mean that the Greens are likely to get some agenda to influence the governance parties. However, for extremely polarizing parties, they tend to be untouchable. They tend to be toxic for the mainstream parties in ways that being seen to be making a deal with them to get their second choice votes, can actually lose a mainstream party some of its first choice voters and therefore, you’re likely to see the system penalizing Greens far less than the Nativists. And that is a key way in which the system can make a distinction between hateful parties and small parties with a positive agenda. Now of course this will not work in a system where 80% or 70% or even 50% of the population is racist. But then no design can help that system. You need something else in that system. So that is a key difference.

Stephan Kyburz: Super interesting, and I interrupted you when you wanted to go over to the second chamber and I think that’s even more interesting in terms of legislative work and representation.

Tarunabh Khaitan: So the second chamber is where the benefits of presidentialism are brought into the parliamentary model and hence moderated or semi-parliamentarism. So the second chamber is a proportional chamber. It’s elected under PR with a high threshold, to again keep the very tiny parties out of the system. It’s moderated again, but it is still proportionally elected. So both the Greens and the reasonably popular Nativist parties, say 8 to 10 percent vote shares, will get into this chamber. The point of this chamber is to check the government, and to make constitutional appointments. Appointments to the higher judiciary, appointments to what I have in my work called guarantor institutions, like electoral commissions, human rights bodies. So constitutional bodies that are not part of the executive, and therefore should be elected in a post-partisan manner.

Stephan Kyburz: Where you want a broad base, right? They should be broad based, broadly supported.

Tarunabh Khaitan: Absolutely. So that’s the function of this chamber. It has equal legislative power as the first chamber, with two possible exceptions. One is that it cannot bring down the government. It does not have confidence power and…

Stephan Kyburz: And that’s why it is semi-parliamentarism, right? That’s the important difference.

Tarunabh Khaitan: Exactly. And that might have implications for finance bills, or money bills, because holding up the finance bill is in effect a no confidence vote. So it has implications for its legislative power and there, if the two houses disagree, then some formula has to be arrived by the proportional checking chamber cannot effectively bring down the government on its own. But otherwise it has equal legislative power. So the government’s legislative agenda has to go through this chamber as well, right? That is the checking function, that is akin to presidentialism and presidentialism as we know, there’s a strong check on the executive’s ability to get legislation through if the opposition party controls the legislature. There is almost no check or very little check if the same party controls the legislature. People have written about this, Pildes and Levinson have talked about united and divided governing in the U.S. working very differently. Moderated parliamentarism is even better than the presidential system in the legislative check on executive power. Because unlike the presidential system, where either the executive has no check or is completely dysfunctional, depending on the strength of the party system and tribal loyalties. In this model the chamber is designed in a way that no ruling party is likely to ever have a majority in the appointment system, in the appointing chamber, which means that any ruling party will have to work with at least a part of the opposition to get its agenda through. So it will never be without a check. But it’s also designed in a manner that the opposition in this chamber is diffused rather than united and therefore, a reasonably flexible ruling party should always be in a position to secure some opposition support for all its bills, not the same part of the opposition, it may change, right? It might be an issue-based coalition on different bills and that’s how I imagine this chamber. So while the government will always be checked, because it will always need to reach out across the aisle, it will rarely be stymied. It can only be stymied when a diffused opposition, elected through a PR system, collectively stands up against the government. And even then, there is a mechanism for dispute resolution when the two chambers disagree, right? But why will the ruling party never have a majority in this chamber for the simple reason that when you have an important legislative chamber elected on the PR model, it’s likely to create space in the party system for smaller parties to thrive. So unlike the Westminster system that squeezes out smaller parties in ways that there is no point in having a small party, because you will never win seats and never win influence. This chamber gives the small parties a share in political power, a space in the heart of government, and therefore, there will be parties which may have no interest in becoming parties of governance, but they will be within the system. What that does is it satisfies our optimization principle. If there is a salient voter type, it will have a seat in the proportional chamber and the checking chamber and therefore a voice, right? So no salient voter type will be left without a political home. And what that means is that this model will necessarily create a multiparty democracy, not a two-party democracy. But this multi-party democracy will still have two centers of gravity because of the difference between the two chambers. So there will still be parties of governance that are vying for political office in the executive, which will be two or three number, and many other constellations of parties that will form issue-based coalitions for setting agendas of the government to go through. So that’s broadly the idea behind this chamber. It must be a staggerate chamber.

And now I come to your question about temporality and why that matters. It started in the sense that a third, or a fourth of its membership retires every two years, or whatever. Its MPs should have longer periods in office, between 5 and 15 years. I’m not sure, different polities can choose what they like. The term must be longer than the confidence chamber. And what this will ensure is that because the checking chamber’s mandate is always an older mandate – at least for some of its main members – compared to the appointment chamber, compared to the confidence chamber. That justifies the right of supplying confidence for the confidence chamber, because it’s always in possession of the more recent democratic mandate. And that is important to avoid a legitimacy tie between the two chambers. The worry about two directly elected chambers is that the second chamber will try to claim the power to appoint the executive. Why should we not have this power if we are also elected, right? And that led the worry about the political legitimacy tie can be broken by giving this centripetal chamber the most recent electoral mandate. But it also brings into the system a type of stability by allowing MPs in the second chamber to take the longer term view, because they have longer tenures and fixed terms. We can also introduce other checks like ensuring that, you know, if you want a diversity of views people from outside the political system to be appointed by parties, can ensure that people who have ever stood for office in the first chamber cannot be nominated for the second chamber in party lists. You can have disabilities after you leave office in the upper chamber, you can’t be in active politics or whatever. But you can make sure that this chamber also maximizes expertise in governance in a way so that it’s an additional benefit.

Stephan Kyburz: Would you also say that this chamber may grow or maybe the larger chamber to better reflect different interests in the population?

Tarunabh Khaitan: That is not something I’ve thought a lot about. I think that in terms of size, you know, we are sort of in constitutional theory think of sort of hundred members in a legislature, sort of a minimum rule of thumb requirement, that you know below that is significantly large population will struggle to find representation. Obviously the population of the country matters. I think there’s an upper threshold as well. A chamber which is more than 500-600 members will struggle to do any real effective deliberation and debating. So between that range what is the kind of ratio you want to have, will depend on a multiple number of factors. It will depend on whether it’s a federal or a unitary system; whether you have other levels of government. What is the size of the country etc. I don’t have very strong views about that. But it has to be within a goldilocks zone, not too small, not too big.

Stephan Kyburz: Yeah, usually in political science I think the kind of rule of thumb is the cube root of the population, which I think is quite a good benchmark I would say. But the good thing is that this chamber, you could essentially expand to include more interests, right? Because government stability doesn’t depend on it.

Tarunabh Khaitan: And I think the PR system should reflect that, but the value of this is that it keeps the crazies within the system and I think that’s hugely important. So take the British example for a moment. The Brexit UKIP, the UK Independence Party which spearheaded the Brexit movement. What are the problems in my view was that the Westminster parliamentary system did not allow UKIP to get into parliament. Because it was a polarizing small party, what it meant was that it stayed outside the system and therefore became a lot more dangerous than it might have been within the system. What it ended up doing was recasting the Tory party in its own image.

Stephan Kyburz: Exactly.

Tarunabh Khaitan: The Conservatives were reconfigured. Whereas under moderated parliamentarism, they would have found a legitimate but constrained voice within the system, which would have moderated them. Which would have ensured that their sense of grievance was kept in check because you are with, you know. So I would like to compare – I know they’re a very different system – but the fate of the One Nation Party in Australia has been very different from Brexit, right? One Nation Party gets a seat in the Senate which is proportionately elected. It never gets a seat in the house which is elected on a rank choice system. It is within the system. They have a pulpit to rank. But they have not managed to destroy the system by effectively taking over any of the larger parties in a way that happened in the UK. So I think that’s actually a good thing to keep the crazy parties closer to power. And also it also makes them see the reality of governance up close in ways that hopefully will have a moderating impact.

Stephan Kyburz: Yeah, and I think the appointing and checking chamber, your second chamber definitely would include those voices right in the legislative process even, but they wouldn’t you know, have enough power to be a threat to democracy or to bring through like major decisions that are not in the interest of the people, for example.

Tarunabh Khaitan: Exactly. And by the way I should say they will get in the chamber only if they appeal to a sufficiently large percentage of the voters, right? So if they’re too small, you know, tiny crazy parties I think should be outside the system. When they become a threat to the system is when they have the support of 7, 8, 9, 10 percent of the population. That is when you cannot ignore them and that is when the system ignores them at its own peril because then they become an unspent force that can lead to explosion. But by bringing them into the system, I think, if anything, the support dissipates. Because that grievance of being the anti-establishment party is hard to sustain when you are in parliament. But the other thing I should mention about the proportional checking and appointing chamber is its appointment function. There’s a formula of multipartisanship, a special formula I’ve called weighted multipartisanship.

Stephan Kyburz: Yeah, which I think is also very cool.

Tarunabh Khaitan: Okay, well thank you very much. So the idea of weighted multipartisanship is that the two largest… First, constitutional appointments should not be made by the ruling party. That is a straightforward implication of the party-state separation principle, that constitutional appointments should be made by broad party consensus. But not even by the two largest governance parties. But the formula is that the appointments are made not in proportion of the seats in the appointment chamber, but the largest N parties in this chamber. Again it’ll depend on the system, the largest seven parties, the largest five parties, the largest whatever number you want, constitute the appointment committee with equal votes. So if you have a five members appointments committee it will represent the five largest parties in the appointments chamber. So the strength in the committee is not proportional to the votes share they have in this chamber. And these five members will make appointments to the judiciary, to electoral commissions, etc. And that ensures that the interest of smaller parties is not ignored. The two large parties cannot form a cartel to make appointments in ways that effectively closes the system to the little parties which is what happened in the U.S. and you know there’s a fantastic paper by – it’s a dated paper now, by Sa Issacharoff and Richard Pildes, published in the 1990s, late 90s. And I believe it’s called Political Parties and Markets, or something along those lines. Political systems as markets.

Stephan Kyburz: I will link to it in the show notes and.

Tarunabh Khaitan: Competition law logic to show how the two American parties have catalyzed to close the American system to any third party emerging and they’ve done so using law, right? So the appointment chamber will use a five member voting system and again if they are required to make appointments using a ranked choice system, then the system will ensure that only nominees who appeal to more than two parties will actually get appointed, because you’ll have to put forth every party will have an incentive to put forward nominees who will get them second choice votes of enough opponents and therefore get in. That I think is a critical part of the appointment system which again represents… The idea of the five largest parties is that I’m assuming the five largest parties will, between them, represent anything between 70 to 90% of the voters in the electorate, and therefore the idea is that constitutional appointments are made in the name not of a small majority of the voters 51% for example, but of the entire people or as close to the entire people as possible, while making sure there’s no possibility of deadlock. So no party can hold up appointments. There will always be an appointment and that’s what the system is. So basically you can see the broad guiding principle that decisions must happen. So deadlock and dysfunction is ruled out by giving a veto to the main opposition party in the presidential system, for example. So government will function, things will happen, but in order for them to happen in particular ways, a cross-party alliances have to be made. Some part of the opposition has to support the winning bill or the winning candidate.

Stephan Kyburz: And that also prevents for sure the capture of the government administration by the ruling party or by the ruling parties, because appointments to the administration, appointments to the court system would require this very broad based agreement on candidates.

Tarunabh Khaitan: Absolutely, and this is straight out of the playbook of many latter day autocrats. In my paper on killing a constitution with 1000 cuts I’ve shown how the Modi government in India basically captured all of these independent constitutional, most of these independent constitutional institutions by using its appointment powers and excluding the opposition sometimes from the process through very dubious constitutional means. But this is exactly the kind of system which will ensure that the ruling party cannot entrench itself into the state and only has temporary hold on the executive government of the day.

Stephan Kyburz: And I think that’s also a really crucial and beautiful element of your suggestion.

So for people who would like to read more on your proposition, obviously I will link to the paper. There was a great blog series that I will link to where various scholars have replied to your paper. So I thought that was very insightful. But do you have any other suggestions of books or articles either related to moderated parliamentarism or to any other books that you think are really interesting.

Tarunabh Khaitan: Well, I think Ganghof’s book on semi-parliamentarism is definitely worth reading.

Stephan Kyburz: Yeah, I had a podcast with him as well. So people, of course, can listen to that podcast as well.

Tarunabh Khaitan: Excellent. The other book, this is not related to this. Why it is related I suppose. The book that is currently getting a lot of my attention is Karen Tenner’s book on the authoritarian dynamic where she talks about – she is a political psychologist – and talks about an authoritarian predisposition that about a third of any reasonably sized human population is likely to have. And how the task of politics is to make sure that the predisposition remains untriggered. I think that there’s an argument waiting to be made, how moderated parliamentarism is arguably one of the best ways to make sure that that authoritarian predisposition will not be triggered, or if triggered will be moderated in any social group. But anyway, that’s a hunch, that’s a hypothesis, so there is a connection there but I would strongly recommend reading that book to anybody who’s interested in democracy and authoritarianism anyway.

Stephan Kyburz: Thanks, I’ll link to that as well in the show notes. So Tarun, thanks a lot for joining the conversation on the Rules of the Game podcast. I really enjoyed the conversation and hopefully we’ll be able to have another chat another day. I think you have so many interesting papers and books that I would be very happy to have you again on the podcast. Thank you.

Tarunabh Khaitan: Thank you. It was a pleasure and I would love to come again.

Stephan Kyburz: Thank you.