My new column at Ketagalan Media is on electoral reform in Taiwan, and what form it should take:

Read the whole thing here.

As an alternative to the way cross-Strait policy has been dealt with (or rather, not dealt with) in Taiwan over the last year, I've been thinking a lot about how similar foreign policy or trade controversies have historically been resolved in other democracies.  One example I like a lot comes from the former West Germany. 

Ostpolitik: Procedural Legitimacy, German Style
In 1969, West Germany had been a democracy for less than 20 years*.  In a situation with some striking parallels** to Taiwan's current one, the newly-elected Social Democratic chancellor Willy Brandt pushed for a policy of engagement rather than confrontation with the communist East Germany and its Soviet patron. Under this so-called Ostpolitik, or "eastern policy,"  Brandt signed a series of treaties renouncing the use of force, recognizing post-war European borders, establishing diplomatic recognition of Warsaw Pact states in eastern Europe, and culminating in a peace treaty, the Basic Treaty, with East Germany itself in 1972. 

Ostpolitik was hugely controversial in German political life.  Brandt was the first non-conservative to hold the chancellorship in the post-war era, and his sharp change in policy was fiercely opposed by the former ruling party, the Christian Democratic Union (CDU). After the Basic Treaty was signed in early 1972, several MPs from Brandt's coalition partner the FDP defected to the opposition, and it looked like Ostpolitik might be stalled or reversed. 

But in a crucial showdown in April 1972, the CDU fell two votes short*** of winning a no-confidence vote to replace Brandt's government with a conservative coalition. Seven months later, Brandt's coalition was re-elected in federal elections, and the treaty was then approved by the German parliament.  By winning both a no-confidence vote and an election after the Basic Treaty was signed, Brandt endowed his policies toward Eastern Europe with a great deal of democratic legitimacy despite the controversy.  Most impressively, when the CDU eventually returned to power in 1982, it retained Ostpolitik, which by that point was supported by all the major political parties.  

Why a German-Style Solution Isn't Available in Today's Taiwan
It’s instructive to consider all the ways Taiwan’s current institutions prevent a kind of “German solution” to the CSSTA controversy.  There are four big ones:

1.  Ostpolitik Agreements were Treaties.  The Basic Treaty signed by the Brandt government with East Germany was beset by ambiguity about the official status of the East German state: West Germany had claimed since partition to represent the entire German nation and refused to acknowledge the legitimacy of an independent East Germany (sound familiar?).  Brandt’s linguistic work-around was to assert that two states existed “in Germany,” but that they could not regard one another as foreign countries.  Nevertheless, when the Basic Treaty was signed, everyone agreed that it required parliamentary approval to take effect--like the Treaty of Moscow and Treaty of Warsaw before it.  

Unlike in the Taiwan case, the West German procedure for approving the Basic Law remained the same as for approving agreements with other foreign powers: an up-or-down vote in both houses of parliament.  In Taiwan, however, it's not clear whether the CSSTA even requires a vote in the Legislative Yuan, even though trade agreements with other countries do.

2. The Advantages of Parliamentarism (I): Executive Actions depend on Parliamentary Confidence.  As head of government in a parliamentary regime, Brandt’s actions implicitly depended on the continued support of a majority in the Bundestag, the lower house of the German parliament.  Ostpolitik, and especially the Basic Treaty, were controversial enough that Brandt nearly lost this majority.  Had the opposition CDU managed to win the no-confidence vote, Brandt would have been replaced by a new conservative coalition, and the Basic Treaty would likely have been modified or withdrawn.  

In contrast to the Taiwan case, there was an obvious institutional way to settle the conflict over Brandt’s policy: hold a vote in parliament. Brandt’s victory in that vote confirmed he still had the minimum support needed to advance the treaty.  In Taiwan, the legislature has a formal no-confidence power, but it's much weaker: it can be used only against the premier, not the president; it gives the president the right in turn to dissolve the legislature, so most LY members don't want to use it lest they have to face the voters in early elections; and it can only be used once every 12 months.  

Moreover, in a move that looks rather stupid in hindsight, the DPP brought a no-confidence measure against premier Jiang Yi-huah last October, which, given the KMT's majority, predictably failed badly.  So even if enough members of the LY were willing to risk early elections to bring down the premier and his cabinet, that option is closed off for the next six months.

3. Proportional Electoral Systems Make Coalition Governments Likely.  Since the founding of the FDR, Germany has almost always had stable coalition governments.  A key reason is the German electoral system, the so-called mixed-member compensatory system.  Under the German system, all parties which win over five percent of the party vote get a proportional share of seats in the lower house. Thus, for much of Germany’s postwar history, a small centrist party, the FDP, held the balance of power in the Bundestag.  Brandt relied on FDP support to stay in office; the vice chancellor and foreign minister under Brandt was the head of the FDP, Walter Scheel. When FDP members opposed to the Basic Treaty started defecting, the Brandt coalition was in trouble.  

In contrast, Taiwan’s 2005 electoral reform created a much more majoritarian electoral system: the KMT’s current majority in the Legislative Yuan is due in part to a highly disproportional conversion of votes into seats.  As a consequence, there is no coalition partner on which the KMT depends to get bills passed in the legislature, and no direct way for non-KMT parties to ensure they are included in the cabinet.*^

4. The Advantages of Parliamentarism (II): Early Elections.  Fourth, despite winning the no-confidence motion, Brandt was still in a precarious political position.  He had lost several members of his coalition, and it soon became clear that he no longer held a working majority in the Bundestag.  So, he called early elections: in November 1972, seven months after the no-confidence vote, German voters got to weigh in on the Brandt government and, by association, Ostpolitik.  The result of the polls left little doubt that Brandt had the support of a popular majority: both the SDP and FDP gains seats at the expense of the CDU. Brandt had for all intents received a popular mandate to continue with Ostpolitik.

Again, the contrast with Taiwan is stark.  There is no requirement that the Ma administration face the voters again before implementing the CSSTA. Nor can Ma call early elections even if he wanted to; that would require a no-confidence vote to pass the legislature, which, as I noted above, isn't even a constitutional option until October 2014.  In short, there's no easy way to have the voters weigh in directly on the current controversy or the Ma administration's performance until the 2016 general election--two years away.  The consequence is that the CSSTA controversy is likely to remain unresolved, exacerbating political gridlock in Taiwan until at least 2016.  It's hard to see that as a good outcome for Taiwan's democracy.    

* It might not be obvious at first glance, but this is roughly the same age as Taiwan's democracy today: the first elected postwar government in Germany took office in September 1949, and Taiwan has had a fully elected legislature since 1992 and a popularly elected president since 1996.  

** I should emphasize I do not mean to draw any lessons from this example about how cross-Strait rapprochement should proceed. I highlight this case only because of the admirable way in which a highly divisive foreign policy issue was resolved domestically to West Germany's long-term benefit, not because I think Taiwan-PRC relations should be handled in the same way.

*** The CDU lost the vote when two of its own members unexpectedly failed to support the party's motion.  After the unification of Germany in 1990, East German secret files revealed that both MPs were paid by the East German secret service to vote against the motion.

*^ In practice, the Cross-Party Negotiation Committee (政黨協商) in the Legislative Yuan gives minority parties the ability to slow or block legislation; it does not, however, give them any say in, or claim to, Executive Yuan cabinet positions, as a real cross-party coalition would in a pure parliamentary regime.

The attempt by the KMT leadership to remove Wang Jin-pyng as speaker of the Legislative Yuan has a lot of interesting elements to it.  For electoral studies geeks, though, the most fascinating might be that Wang was elected on the KMT’s proportional representation or "at-large" list (不分區) rather than from a single-member district (單一選區).  As a consequence, he is especially vulnerable to purge attempts: unlike district legislators, Wang depends on his party’s support to retain his seat for this term.  

A little background first: since 1995, Taiwan has had a mixed-member electoral system (混合制) with two parallel electoral tiers.  Up until 2004, the larger, district-level tier consisted of between 25-30 multi-member districts (複數區), with multiple representatives elected from each district using the single non-transferable vote (SNTV) (不可轉移單票制).  The smaller, national-level tier consisted of a single nation-wide district in which seats were awarded to parties using closed-list proportional representation (CL-PR), based on the percentage of the vote that each party's district candidates won aggregated across all districts.  A major reform* before the 2008 election halved the size of the legislature, replaced the multi-member districts with single-member ones, and introduced a separate vote for the PR tier, but retained the closed-list rule for the PR seats.  

Winning the List

The "closed" part of "closed list" PR means that the party, not voters, controls who gets these seats.  It does so by submitting a ranked list of names (分配當選名單) prior to the election; when the seat totals for each party are announced, the PR seats are distributed down the list until the party's quota is met.  For instance, in the 2012 legislative election, the KMT won 16 seats in the PR tier, so the top 16 candidates on its party list were awarded seats.  This is how Wang Jin-pyng was most recently elected: he was ranked first on the list.  (You can find the lists for this and other elections at the Central Election Commission website.  The image at right was pulled from here.)   

It is not hard to see that the order of names on the party list goes a long way toward determining who gets seats.  The first candidate on the list is as good-as-elected once the list is submitted, unless the party fails to win any PR seats.  But the 16th candidate will have to sweat out the election.  And the 34th candidate has no realistic hope of winning a seat whatsoever.  Thus, whoever controls the party list controls the electoral fates of all the PR legislators.  Typically, party leaders determine the ranking and put themselves and their allies** at the top of the list, while incumbents who've ticked off the party leadership get left off entirely.  So legislators elected from the PR tier have to toe the party line if they want to remain in office.  

But that's not all. Taiwan electoral law also provides political parties another weapon to keep list legislators in line: the Civil Servants Election and Recall Act (公職人員選舉罷免法) specifies that any at-large legislator who loses his party membership will also immediately lose his seat.  Hence why Wang Jin-pyng was so vulnerable to a purge by President Ma: as an at-large legislator, his seat depends on the continued tacit support of the rest of the party.  Rather than wait until the run-up to the next election to deny Wang his previous position on the party list, Ma and his allies could remove him immediately by stripping him of his party membership.  It is only through a rather surprising, and lucky, district court injunction that Wang has so far survived the attempt to boot him from the legislature.

Whither Wang?

It's noteworthy that Wang Jin-pyng has not always been an at-large legislator for the KMT.  Until 2004, he was one of several legislators representing Kaohsiung County's First District, and a quite popular one at that.  If he were still a district legislator, stripping him of his party membership would not have had the same effect; he would have retained his seat.  That raises the question, why would a leading politician like Wang ever join the party list?

The answer is that it’s a sure-fire way to get into the legislature without having to win a district-level election.  Campaigns for legislative district seats were notoriously fierce, and costly, under the old SNTV system, because candidates had to compete for votes not only against nominees from other parties but also with their own fellow party members.  Winning a seat usually required relentless effort to differentiate oneself from everyone else and cultivate personal ties to constituents.  (And, all-too-frequently, some form of vote-buying.)  So when Wang first ran on the party list in 2004, when SNTV was still in place, it was undoubtedly appealing to him to leave behind the trouble of district campaigning.  The switch to single-member districts in 2008 eliminated most intra-party competition, but at that point Wang was already ensconced at the top of the KMT list and had no reason to return to a district.  

Now, of course, he does.  My money is on him returning to his old Kaohsiung County district and running there in 2016, where he retains a base and can probably win comfortably.  Whether or not he hangs on to his seat through the end of this term, I doubt we have seen the last of Speaker Wang.

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[* Taiwan's history of electoral system changes is dauntingly complex, even post-martial law era. I will attempt to cover it in a future post.]  

[**I'd forgotten, it's an electoral law rule, not an intra-party rule.  So all parties are required to reserve at least half their PR list seats for women.]