Anti-floor-crossing legislation: potential consequences

In the wake of David Emerson's defection from the defeated Liberals to the governing Conservatives, an old proposal has resurfaced in public debate, arguing that there should be a bill that would require wayward MPs wanting to cross the floor to run in by-elections. A number of individual Liberals and Conservatives already support such a bill, as does the bulk of the NDP. What you may not realize, though, is that such legislation already exists...in New Zealand. In fact, the Globe and Mail's Jeffrey Simpson spoke favourably about it in a recent column:

In 2001, New Zealand adopted the Electoral Integrity Act, known colloquially as the "party hopping" or "whaka jumping" bill (a whaka being a large Maori war canoe). The bill's provisions expired in September but are being reintroduced. They are meant, in the bill's own words, "to enhance the integrity of the electoral system" by not allowing MPs to switch parties during a Parliament. [...] No switching is allowed, in other words, and that's the way it should be in a democratic system.

The context for the New Zealand law was actually quite different from the situations that have sparked this debate in Canada. The first thing we have to understand is that back in 1996, New Zealand underwent a major electoral reform, switching from the first-past-the-post system presently used in Canada to a mixed-member proportional system very similar to the one first used in Germany. As a part of this reform, their parliament was divided into MPs who represent ridings and MPs who owe their seats to their position on a party list. Because of this, if any MP decides to flee their party, the proportionality of the entire parliament is disrupted. With list MPs, this is arguably an even more problematic issue than with people like David Emerson, since they are chosen specifically to represent their parties rather than to represent ridings. Despite the differences, though, looking at New Zealand may be able to help Canadians look at this issue with more level heads than perhaps have been used in the past week. This kind of dispassionate observation can help us figure out, in practical terms, how desirable such a law might be in Canada.

First, a bit of history: There were several cases of party-hopping that led to the introduction of the law. The first occurred in mid-1997, only a few months after New Zealand's first election under the new proportional voting system. One list MP from the left-wing Alliance party decided to quit her party and sit as an independent. Although she had signed a party pledge to resign from parliament if she left her party, a non-partisan committee ruled that this wasn't enforceable. This led several other MPs to defect in subsequent months: one more from the left-wing Alliance party, and another handful from the centrist New Zealand First party, who quit when that party's coalition agreement with the right-wing National party failed. The opposition parties were understandably angered by this situation, and vowed to introduce legislation to prevent party-hopping in the future. After the next election, the centre-left Labour party and the left-wing Alliance party formed a coalition government, and together they introduced the Electoral Integrity Amendment Bill.

The terms of this bill were strict: MPs who chose to leave their parties would be considered to have resigned from parliament at the time that they notified the Speaker of their intention to surrender their party memberships. In addition, because of the concern that MPs might theoretically opt to stay in parliament by refusing to resign from their parties, the bill also gave a party's parliamentary members the right to force an MP's resignation if it looked like that MP's behaviour would distort the proportionality of party representation in parliament. A riding MP who quit or was forced out would face an immediate by-election, while a list MP in the same circumstances would be replaced by the next person on the list. In order to expel a given MP from the party, two-thirds of that party's parliamentary members would be required to agree that this should occur. Seems straightforward enough.

When we look at the situations in which this legislation has been applied, though, there seems to be some cause for concern. In fact, in practice it often seems to achieve the opposite outcome from what it was intended to produce. For example, when the left-wing Alliance party disintegrated, the leadership ended up being split, with one person serving as the leader inside parliament and another person serving as the leader outside of it. When the parliamentary leader shocked everyone by announcing that he was going to form a new party, he should have, under the new law, been forced to resign and run in a by-election. But because he managed to retain control over two-thirds of the party's ten MPs, he got to stay in parliament and continue to lead the entire group under the new banner. In another example, the far-right ACT party attempted to expel one of their list MPs over a financial scandal, but the letter of the anti-floor-crossing law dictated that an MP could only be expelled if the MP staying on would distort the proportionality of parliament. Since this particular MP insisted that she would continue to support her former party's policies in parliament, they were forced to keep her around as well.

The New Zealand examples show that an anti-floor-crossing law crafted without sufficent attention to potential loopholes can end up being worse than the situation it was designed to fix. If our current parliament does end up choosing to entertain similar legislation, I hope they will put some intense focus on the lessons that can be learned from New Zealand, so that we won't end up falling into the same traps.