Peters’ fiasco shows MMP flaws

August 1, 2008

Public law specialist Andy Nicholls says the Peters’ debacle shows a review of MMP is needed.

Winston Peters’ value to both Labour and National has become abundantly clear. Both parties are pulling their punches over the donations allegations for fear of alienating him as an ally or future ally.

MMP creates hostage situations. Remember Alamein Kopu and her pull over Jenny Shipley?

In this most recent row Sir Robert Jones has unexpectedly been firing most of the bullets at Peters. He probably summed up the view of many when he said, “I belong to a different era. I don’t like it now under MMP.”

John Key has said National will, if elected, hold a referendum into MMP. Key’s referendum will first ask voters: are you satisfied with MMP? If the majority says no, then a second referendum will be held pitting MMP against some other unspecified alternative.

But is this what we need? MMP was itself born out of a referendum, and voter frustration at the unbridled power of first-past-the-post governments. First Sir Robert Muldoon, then Sir Roger Douglas proved if you could control the Cabinet you could control the country.

But one wage freeze and an unadvertised rapid economic transformation later, voters realised they wanted their leaders on a tighter leash. They wanted them to have to work harder, and more consensually, to get their own way. Which is what MMP delivers with its minority or coalition governments, its requirements to consult and its generally slower pace of change.

Referendums are very blunt instruments and support for MMP in the 1993 one came at least in part from people voting against politicians rather than for a change in the voting system.

Plus, of course, for anyone younger than 32, two-tick voting is voting. So why would we ditch it? Because MMP has flaws which undermine the legitimacy of our parliamentary system.

Nicolls gives examples such as the ability for MPs like Gordon Copeland to abandon their parties, switch allegience and still be an MP; or those like Rick Barker who lose a seat but still get back into parliament – and even cabinet – on a party list. Although this also allows MPs to enter parliament when standing in an unwinnable seat, as Katherine Rich has in Dunedin North.

If that is justified by the sanctity of the party list, then what about Mike Ward and Catherine Delahunty? Both Greens and both higher placed on the list than Russel Norman, yet both pushed inelegantly aside when Nandor Tanczos’s early retirement offered the co-leader the chance to get to Parliament in time for some pre-campaign publicity.

All these inconsistencies create unfairness, though not so much as the threshold rule itself.

Under MMP a party must win 5 per cent of the party vote or an electorate seat. A win in an electorate, where the party scores lower than 5 per cent, still gets a proportionate top-up. So Rodney Hide’s win in Epsom gave Act two MPs even though the party won only 1.5 per cent of the party vote.

By comparison, in 1996, the Christian Coalition won 4.33 per cent of the party vote, a hair’s breadth from the magic threshold. But it failed to win in any electorate – so bad luck, no MPs.

There are two issues. Firstly, is the 5 per cent threshold too high? The commission that recommended MMP preferred 4 per cent, but the two major parties argued for a higher threshold. Those fears have proved unfounded. In fact, as much as MMP has delivered a more diverse Parliament, only one new party (Act) has broken in since the switch to MMP. The others have all been created around a sitting member.

But is the electorate threshold too low? In Germany, a party must win three electorates before qualifying for list seats. Adopting a three-electorates or 5 per cent criterion at the 2005 election would have seen five parties able to get in list MPs.

United Future and Act would have been restricted to Peter Dunne and Rodney Hide. As Jim Anderton couldn’t bring in a list MP under current arrangements, the Progressives would have been unaffected. Since none of those three parties attracted more than 2.6 per cent of the party vote, is that an unfair result?

And then there is the Maori vote. Last election, the Maori Party won 2.12 per cent of the party vote and four electorates, hence it has four MPs. This coming election it may win more electorates even though polling indicates its party vote will be no higher.

Since the number of Maori seats grows in accordance with the number on the Maori roll, it is entirely possible that over time this disparity between the number of MPs elected and the party’s proportion of the party vote will grow. That will mean a larger and larger over-hang and the leading party will need to garner not 61 votes to govern, but 63, 64, 65. Is this what we want?

These are all valid issues in need of debate. But they do not fit the yes-no format of a referendum. Nor do they provide evidence that MMP itself is beyond repair.

What they point to is the need for a considered review of the electoral system. Learning the lessons of the Electoral Finance Act, this should be conducted in a non-partisan way with a clearly stated purpose of seeking greater fairness.

In the spirit of fairness, perhaps such a review should also look at the Prime Minister’s prerogative to set the election date. Or the length of the political term; four years might be more productive.

The problem is that these changes require MPs to vote against their own interest. History tells us MPs don’t do that. Which is why a simplistic question in a referendum is so appealing. It looks as if something substantive is being done, even if it isn’t.

But concerns about MMP’s peculiarities are genuine and a more considered review would be more constructive.

I agree a considered review if not instead of, at least before, a referendum would serve us better than the blunt instrument of for or against vote in isolation.


Clark says EFA undemocratic

July 8, 2008

No, Helen Clark hasn’t seen the light. It’s Linda Clark and a Chapman Tripp colleague Andy Nicholls who point out the many defects in the Electoral Finance Act in The Listener.

…The EFA’s dampening effect on the current election campaign is so serious, it is anti-democratic.

I blogged about it here  when the magazine came out a couple of weeks ago and the whole article is now on-line here.


EFA Anti-Democratic – Clark

June 24, 2008

It’s not Helen but Linda Clark who, with Chapman Tripp colleague Andy Nicholls, delivers a blistering attack on the Electoral Finance Act in this week’s Listener. The preview is here but the full story won’t be on-line for a couple of weeks.

The Listener does this to encourage us to buy a copy of the magazine and I’m not going to interfere with that so will resist the temptation to copy the whole piece. Instead here’s a taste of what they say:

An Act rushed through late last year is threatening our right to really know who we will be voting for – even our politicians are playing a waiting game, and it needs to be fixed now.

…The EFA’s dampening effect on the current election campaign is so serious, it is anti-democratic.

Though National has said, if elected, it will repeal the EFA, it needs to be fixed now if this campaign is to be a fair contest. Voters should be able to see for themselves what and who is up for election and not just in a flurry at the last minute.

… parties … are holding back their candidates from campaiging and robbing voters of the opportunity to be informed.

… election advertising … commits political parties to key promises… And in the contests for electorates, which these days are given scant media coverage, it helps voters identify one candidate over another.

People don’t even know which electorate they’re in after the boundary changes, let alone who the candidates are. The Waitaki Electorate has the highest number of registered voters in the country, but the returning officer said she got lots of forms back from people saying their details were correct but they’d been put in the wrong electorate.

The EFS is getting in the way of this campaign with the problems stemming from both the scope of the Act’s intention and the way it was drafted.

 …Parties have found calculating expenditure complicated by what is now a very broad definition of what constitutes election advertising…it’s possible a party logo alone will be deemed to be an advertisement – no one seems sure.

…What is prevailing is confusion and conservatism…The (Electoral) Commission…has opted not to provide any sign-off of expenditure before the election…

The trouble is none of this ofers any of the parties any certainty that what they are doing is not in breach of the EFA… some MPs may have already overspent…

Elections should never be decided by the courts and electioneering should not be such a guessing game.

…Constitutional laws require bipartisan suppport to be durable, They ought to be non-political.

There is more – buy a copy and read all it for yourself.


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