Crawl Across the Ocean

Thursday, February 09, 2006

Is it Time For a Pre-Nup?

Kevin G asks the question, "Is there any reason that an MP should not have to seek a re-validation from their constituents before crossing the floor?"
and Dean replies, "How about an MP who doesn't vote the way you like?
How about an MP who doesn't vote with his or her party?
How about an MP who campaigns on an explicit promise not to vote with the party, and then does so anyway?
How about changes in circumstance? Who decides what is material and what isn't?
How about a Party that fails to fulfill an election promise?"

An interesting initial question and some fair questions in return.

The truth is, I am not a big fan of having a law which mandates a by-election when an MP changes parties and I do see reasons why such a law would be a bad idea.

For starters, Dean's point about the difficulties of imposing party-centric rules on our individual-centric parliament. What if someone doesn't officially change parties but just chooses to vote against the party they ostensibly belong to, and with another party. What if the party wants to twist someone's arm and threatens to kick them out of the party just to force the candidate to go through a by-election? These are just a couple of examples of the games people could play with a rule forcing by-elections on floor crossers.

Last parliament there was a vote on this exact question and it was defeated 189 - 60. If you look at who supported the bill, it was the people at the extremes, the NDP on the left, and the old Reformers on the right. This is not coincidence, because this sort of rule, which attempts to enforce simplicity on what is a complicated situation currently monitored by tradition and ethical considerations, is one of the hallmarks of the ideologue.

One reason why this tends to be the case is that by imposing such rules, one runs the risk of changing a situation where people try to stay within the spirit of what is morally accepted, to one where people feel that the ethics have been encoded in the rules and so any action which does not officially break the rules is now acceptable.

Beyond the complications caused by the party vs. individual question, a main reason that there is no rule requiring a by-election for floor-crossing is that there are situations in which floor-crossing is justified. Imagine someone in the last month of a parliament who has had a significant falling out with their party on an important issue and who has good reason to believe that their constituents are against their current party on this issue. If this person then switches parties to sit in the backbenches on the other side, I think calls for a by-election would be muted.

There are a number of factors which go into a decision as to how unethical any particular floor-crossing is. How long it has been since the election. Whether the crosser stands to achieve personal gain by the move. Whether there is some personal conflict between the member and their party. Whether there is a credible case that the constituents have a stance on an important issue which would require switching/voting against the party. To what extent the constituents typically support the party which is being switched to.

What all these different rules get back to, at root, is an acknowledgement that it is unethical for an MP to campaign under one platform and then switch to supporting another one unless that switch is reasonably supported by their constituents. Each of the criteria mentioned above speaks to the issue of how likely it is that the constituents would support the switch.

Supporters of a rule forcing a by-election just want to formalize this process, since, after all, there is no better way to ensure the constituents support a switch than by getting them to specifically endorse it. Traditionalists, on the other hand, would argue that because of the complexities involved and the risks of trying to impose a one-size-fits-all rule, it is better to allow MP's freedom of action and rely on their ethical judgement (and fear of repercussions) not to take undue advantage of this freedom.

Recently, I have seen some people argue that, because Belinda Stronach, Scott Brison, John Nunziata and Keith Martin were all re-elected after switching parties, this proves that voters don't mind if an MP switches parties, so it is OK under all circumstances. I would turn that around and say that the high success rate of re-election for floor-crossers instead shows that MP's have shown respect for the tradition of only crossing the floor when there is a good case to be made that their constituents support it. With respect to the current situation, I would be very surprised if David Emerson ever again attempts to face his constituents at the polls.

Why do I say that? Well if we go back and look at the criteria for determining when a floor-crossing might be supported by the constituents, we see that Emerson has broken pretty much every one - in fact the Emerson case is almost as pure an example of a 'bad' floor-crossing as you can find. It effectively occurred one day after the election before a single parliamentary vote was held. It was made for significant personal gain. There was no personal conflict between Emerson and the Liberal party. And rather than sitting as an independent or switching to the party which came second in the riding, Emerson switched to a party that came a distant third and has very little traditional support in the riding.

I find it ironic that people defend Emerson's actions on the basis of respect for tradition ('because that is how our system works'), when it is the cynical, selfish abuse of this tradition by David Emerson (and Harper) which does far more to undermine it and to make the case for the imposition of a hard simple rule than anything I or anyone else could ever do. The only way to preserve tradition now is for Emerson to receive a punishment significant enough to deter anyone from following his tawdry example. So those who support Emerson on the basis of tradition are actually undermining the very tradition they seek to defend.

Let's consider the case of an impoverished man who marries a wealthy bride and then 2 days later files for divorce and walks away with half his wife's money. In response, many people naturally argue that this shows why we should never get married without a pre-nuptial agreement. But others say, no, a pre-nuptial agreement isn't needed, that is what the vow of 'till death do us part' is for. To which the only reply is, tell that to the groom, not me.

In my opinion, the wedding with a pre-nup is inferior to one that does without, because how can you expect a relationship to last forever when there is not even trust at the outset? Contractual rules are a poor substitute for lost trust. Similarly, I decry the need for a contract between voters and their representative to replace what has traditionally been accomplished through a mutual trust that one would not abuse the other. But unless Emerson and the Conservatives are forced to pay a heavy political price which will act as a deterrent for any future gold-digging, I see no choice but to push for legislation to protect voters from such cynical manipulation.


  • Oh, they're paying a price, all right.

    By Anonymous Anonymous, at 11:09 AM  

  • Quitting a party on principle does not necessarily mean crossing the floor. If an MP wanted to take issue with a party's actions they could always choose to sit as an independent, and vote however they wish. Under a proposed anti-floor crossing law, an MP could always still sit with no party rather than face a by-election.

    By Blogger one-dimensional man, at 11:37 AM  

  • Why not instead implement a BC-style recall law?

    That way, if constituents really are upset, there's a mechanism. As in the BC version, it's a significant barrier, but it is theoretically possible to recall an MLA.

    I can't think of a better candidate for recall than Emerson!

    By Anonymous Anonymous, at 12:46 PM  

  • Kevin - maybe. How about this scenario: The current government lasts two years, they reach a softwood lumber deal (largely negotiated by the Liberals) and they go on to win a majority government. Lesson learned, you might take some flack up-front for the floor crossing but it's no big deal in the long run. Unrealistic? - maybe, I'm not so sure.

    Assuming Emerson and the Cons suffer no more than this little bout of indignation, the next Emerson wannabe can point back to this case as precedent, arguing this is just how our system works.

    Aside from that, it seems more constructive to make an effort to extract the price, rather than sitting back and saying no worries, someone else will extract the price for me. We are not just impartial observers.

    1D-Man: Good point, good point, although what would it mean if they sat as an independent, yet always voted along the lines of a particular party?

    Ginna: That's another option for sure. I have many of the same concerns with that law as I do with the floor-crossing rule, but it would get around the party vs. individual concerns.

    By Blogger Declan, at 1:12 PM  

  • You raise some interesting points. None of which occurred to me when I asked the question.

    A couple of observations;

    1. I don't think the party-centric potential problems are significant. First, in the normal course of business all the usual arm twisting and horse trading and party whiping will take place. Crossing the floor is not part of the normal day to day party vs the MP stuff. It only comes into play when an issue is significant enough that an MP considers leaving the party

    I think we should recognize that a good many people vote for a party and not for a candidate. Even people who vote primarily for the candidate will certainly give some consideration to the party and the potential PM.

    There would be opportunities to play games with the rule. I'm not sure how much of an impact that would have.

    2. If I understand you correctly you're saying that by introducing a barrier to crossing the floor people will come to rely on the new barrier and not use judgement any more.

    I'm unconvinced that would be the case. Why would they not continue to use their good judgement?

    I'm not sure I agree with the pre-nup comparison and the rules as a substitute for trust argument. I think the floor crossing rules can be better compared to the actual marriage. You can fight and argue and disagree but the marriage is a barrier to separating.

    3. I agree, there certainly are good reasons for floor crossing and you've listed a number of good criteria that people might consider when deciding for themselves whether the floor crossing was justified.

    By Blogger KevinG, at 1:47 PM  

  • 1-D man-

    Why should there be a barrier to crossing the floor to another party and not a barrier to crossing the floor to independence?

    An MP could avoid the whole issue then by becoming independent and then voting lockstep with another party. How would that be different from crossing the floor?

    By Blogger KevinG, at 1:50 PM  

  • Kevin -

    It makes all the difference in the world! Choosing to vote one way or another (whether that is one's conscience, or along your or some other party's lines) isn't the problem that I see with floor crossing. I do believe that, to a large extent, MPs need to use their judgmement and exercise some autonomy.

    But barring floor crossing but not independence would prevent opportunistic career enhancing power plays. It means that there is a pretty slim chance that defectors will do so because of the plums (eg, cabinet positions, insider status, media attention, cash) that a defection like Emerson's has allowed. Truth be told I think that MPs SHOULD be allowed to cross their own party if they really believe that what they are doing is right. But I think cynnical defection to the other side in order to score for yourself is wrong, and I think barring floor crossing without a byelection would have a real effect in that type of case.

    Another quick thought on the subject - distancing oneself from one's party seems to be one kind of action to me. The Party member-cum-independent in that case says "I no longer agree with my party because they have made decision X, and I cannot agree with that decision." I don't think a byelection is necessary here because the constituents did vote for that individual, with the assumption that they will exercise their judgement as situations arise. Moreover, as an independent (especially if the MP became so because of some particular 'decision X'), it seems safe to assume that the MP would as a general rule still hold and apply the values and ideas that led them to a particular party.
    However, in the case of crossing the floor, the MP is going beyond distancing themselves from a party, or its actions, but is now subscribing to an entirely new, and well defined set of values, ideas, and priorities. They have essentially declared that they have swapped ideologies, and will follow directions from new leaders. It is this kind of switch that to me demands an MP return to their constituents to seek a new mandate.

    By Blogger one-dimensional man, at 7:22 PM  

  • I disagree with you that the solution proposed by Ed Broadbent is the work of a simplistic-minded ideologue. I would argue that people who cross the floor for reasons of prinicpal would not be penalized by the law at all.

    The 2006 NDP platform, in talking about changes to the law says: This will require MPs to resign their seats and seek election again
    if they want to switch parties, or to join a party after being elected as independents. Members
    would, however, be permitted to leave their parties and sit as independents without triggering
    a by-election
    (emphasis mine). So, a person, like John Nunziata, who quit the Liberals over the GST and sat as an independent, would not be forced to run in a by-election. I would say Broadbent's plan is pretty reasonable and not in the least extremist. However Belinda Stronach and David Emerson would be forced to defend their actions to their constituents. As long as the independent option is there, I don't see the problem.

    By Blogger Greg, at 7:43 AM  

  • Greg: As has been raised before, what if an MP leaves their party to sit as an independent but voted with one particular party on all votes? The MP could then run for their new party in the subsequent general election, never having to face a byelection. This is a cycnical way of getting around the law, but the actions this law is trying to prevent are already pretty cynical.

    Furthermore, what is there to prevent a Prime Minister from appointing an "independent" MP to cabinet? In coalition governments or "governments of national unity" it is pretty much required that cabinets contain MPs from different parties. You certainly can't ban independents from being in cabinet.

    More generally: The caucus revolt is a very useful, though extreme, tool. Remember how some Canadian Alliance MPs used it to bring down Stockwell Day? Party leadership should be accountable to caucus, not vice versa; a poorly-thought out law could further centralize power in the party leadership.


    By Anonymous Anonymous, at 11:26 AM  

  • My point is and was that it is not an extremist position to take to call for members of parliament to remain faithful to their electors. If they leave as a matter of principal they should be able to defend that choice to those who elected them. That is not extreme. You are right, some opportunist could take advantage of the law for his or her ends, but does that mean we just throw up our hands and say oh well let's do nothing because someone, someday will game the system?

    By Blogger Greg, at 1:50 PM  

  • Greg - by 'at the extremes' I didn't mean to imply that either the NDP or the Reformers were 'extremists' in the sense of being way out of line with the Canadian public, just that the vote played out as the center on one side and the left and right together on the other. I probably could have worded it better.

    My main point, which I stand by, is that often times the status quo is how it is because things are complicated, and attempts to solve a problem with a simple rule can do more harm than good.

    And I do think, that the ideologue, in rejecting realism (see your last comment for an example) is more likely to go down this road.

    However, as I said in my post, given the circumstances I am leaning towards agreeing with Ed and the NDP on this one, so you can call me an ideologue too.

    KevinG - I certainly agree that we have to acknowledge that many people vote for the party and not the indiviudal, I'm just debating the best way to recognize that fact.

    "Why would they not continue to use their good judgement?"

    I guess in my mind I'm thinking of cases where, for example, people argue that a volunteer blood donor system works better than one which pays for blood, because in the second one, people who don't need the money no longer contribute. Where before contributing was a matter of goodwill, now it is a financial transaction.

    Maybe you're right that people wouldn't feel a reduced ethical constraint on changing parties because there is a rule against it, but that kind of thing can happen.

    "I'm not sure I agree with the pre-nup comparison and the rules as a substitute for trust argument. I think the floor crossing rules can be better compared to the actual marriage. You can fight and argue and disagree but the marriage is a barrier to separating."

    I do appreciate a good counter-analogy. But a marriage can be broken (divorce) whereas the rule can't. Also, the rule is put into place prior to the relationship being formed. Still, you have a case. But I note that in either analogy, I think the rule still represents a substitute for trust.

    Don - good point about centralizing party control against the caucas as another possible hazard of the rule.

    By Blogger Declan, at 4:07 PM  

  • Although I have signed the two on-line petitions that are up and running, I fear that there will be little effect. A more effective approach is to write directly to Minister Emerson at and Prime Minister Harper at Remember to include your name and address so that they know you are real.

    I encourage all Canadians to make your views known on this matter. Political figures know and understand that for every one person who writes a letter of complaint there are hundreds who share the same sentiments.

    I think we have to continue to push on this issue as it is such a shocking subversion of democratic principles.

    By Anonymous Anonymous, at 1:56 PM  

  • Personally, I think that prenups are an excellent idea, and should be mandated by law. However, I would not personally sign a prenup if I were to get married, because they're not mandated by law NOW.

    What, what's everyone looking at?

    By Anonymous Anonymous, at 1:33 PM  

  • Anon - agreed on all counts.

    MS - You had me going there for a minute - good one!

    By Blogger Declan, at 11:40 PM  

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