Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
We still don't know who will govern Britain several days after it held its general election election. For those of you haven't been reading the paper, the opposition Tories received a plurality of the seats in Parliament, but not enough to form a government. The current Labor government, which lost a large number of seats, may hold on to power in coalition with the Liberal Democrats, who won a small number of seats despite doing quite well in the popular vote.
No one seems particularly happy with the results. Conservatives are unhappy that they won the most seats but may be left out of power, the Lib Dems are unhappy that they won very few seats despite doing unprecedentedly well among voters, and Labor is unhappy because a majority of voters supported left-of-center candidates, but may still receive a right-of-center government. And the population, the press, and the capital markets, faced with a period of uncertainty, are up in arms.
The blame for this-- at least from the Liberal Democrats and much of elite opinion -- has been laid at the feet of Britain's electoral system. Britain, like the United States, uses single-member districts and "first-past-the-post" (FPTP) or plurality wins vote counting. This means that third-party votes are "wasted" -- they don't go towards determining the winner between the top two candidates in any given district. This is why the Liberal Democrats were able to get 23% of the popular vote and only 9% of the seats.
As Ashley De, spokesman for Britain's Electoral Reform Society noted:
"This system, designed for two-party politics, always fails to deliver a Parliament that reflects the way people voted....Third parties are always punished, and fourth parties are often invisible."
That's true, but it's not a glitch, it's a feature. The goal of Britain's voting system (and ours) is to produce clear choices for voters, create majority winners, and to force coalition building to happen among voters inside parties, rather than in Parliament between parties. That is, in order for a FPTP system to work, it needs to punish third parties.
As part of its negotiations about how to form a government, Britain is now sure to have a serious debate about what type of electoral system to have. Regardless of whether Britain ends up replacing its current system with a European-style proportional representation (PR) system, the unending debate about whether FPTP is flawed and whether PR is better is ultimately not the most interesting thing about the election.
What's interesting is how British politics became so maladapted to its electoral system. Britain now has multi-party system with a two-party electoral system. This produces all of the harms of having its electoral system with none of the benefits (and none of the benefits and all of the harms of having a proportional representation system too.)
It is a puzzle how we ended up here, but this is the worst of both worlds. Britain needs to do something, either to align its politics to its electoral system, or change its rules such that its party system fits its electoral system better. While the first is part of its national discussion, the second is not. It should be. Unless it chooses to adopt a proportional representation system, Britain should pass election laws that go beyond merely keeping FPTP that will iron its multi-party system into a healthy two-party one.
Put another way for the political scientists out there, Duverger's Law is normative, and not merely positive.
Duverger's Law, named after famous political scientist Maurice Duverger, is the claim that political systems with single-member districts and FPTP vote counting systems will develop two party systems. Voters, he argued, in countries with such systems -- the U.S., Britain, Canada, etc. -- do not want to waste their votes and perhaps more importantly, candidates, donors and activists do not want to cast their lot with parties that do not have a chance of winning power.
The first thing to note about Duverger's Law is that it is more of a tendency than a "law." The U.S. has a two-party system, and Britain did for most of the 19th century, but does not today, as the election returns make clear, and Canada has a four party system. So it's pretty clear that Duverger's law is, as a positive matter, only describes a set of interests and likelihoods. Adopting first-past-the-post voting does not guarantee anything about the shape of a country's politics. However, reducing Duverger's Law to a weakly predictive argument ignores what should be its most important aspect. Duverger's law is normative.
That is, Duverger's Law should also be considered an argument -- and a good one -- that if you're going to have first-past-the-post vote counting, it is bad for countries to have third parties, either at the district level or nationally. Election laws should encourage voters, politicians and donors to attempt to influence parties from the inside. And laws should discourage the development of third parties.
What makes Duverger's law a compelling normative argument is that it allows FPTP to work. A two-party system will produce certain democratic goods. Centrally, it makes it easier for voters to assign responsibility for things they like and don’t like and accordingly, generates increased accountability for politicians.
Perhaps the most well-established fact in modern political science is that voters have little direct information about the policy stances of individual politicians and have little ability to assess them. To the extent many voters follow politics, it is in a haphazard way, noticing things here and there about how the country is doing or what politicians have recently done. Political parties allow those observations to turn into useful guidance when it comes time to vote. In Morris Fiorina's famous term, voters develop "running tallies" of party performance and then use those to determine their vote. As long as parties are relatively consistent over time and voters can tie specific observations about what they see in the world to a party, then these tallies -- particularly across a population -- can provide a pretty good guide to whether a governing party had done well or poorly. (Notably, this is the most optimistic political scientists get about voter competence -- other scholars think that, even armed with clear heuristic guides, voters do not have sufficient information to guide policy or do not know to whom to assign responsibility for complex problems like unemployment or regional economic shocks. Importantly, very few political scientists think that voters can consistently translate policy observations into votes without the type of heuristic that party label provides.)
A two-party system makes the development of running tallies substantially easier. Voters face a clear choice -- the guys in power or the other guys -- and having only one party in power makes assigning responsibility easier. Further, it promotes accountability. Politicians in power know they, and not their coalition partners or anyone else, will be held accountable for what happens. Governing coalitions still have to be formed -- the Democrats and Republicans consist of broad coalitions of groups and interests -- but they are formed before the vote. Unlike in multiparty systems, voters choose between already formed coalitions, rather than choosing among parties that then go to Parliament to form coalitions. Finally, a two-party system produces a majority winner. We know who is preferred by voters among the two dominant coalitions.
Now, proportional representations with many parties produce good things too. They provides voters with a wider range of choices and ensures that Parliament actually represents the preferences of voters. Further, it allows for more fluidity in coalitions, making it easier to form one coalition for an issue and another for another issue. It also avoids the problem of wasted votes.
There is a long argument to be had about whether PR or FPTP is better. (And it has been had over and over again.) But having a multi-party system with first-past-the-post voting provides none of the benefits of a two-party system and none of the benefits of proportional representation. Voters do not face a clear choice, as they have to decide between opposition parties and sometimes will have to figure out who in a coalition government is responsible for government policy. And multi-party election in a FPTP system does not produce majority winners, so we don't know which coalition is favored. (For instance, would voters prefer a Lib Dem-Conservative anti-Gordon Brown Coalition or a Lib Dem-Labor Center-Left coalition? We have no idea.) Yet the election isn't representative the way it would be under proportional representation, with parties like the Lib Dems left substantially weaker in Parliament than they are among voters. It's the worst of both worlds.
In fact, it is such a bad state of affairs that you wonder how it came to this. Why do voters continue to support the Lib Dems? We have a basic idea why voters support single-issue third parties, like separatist or regional parties. For a Scottish voter who cares about Scottish independence or devolution more than any other issue, voting for the Scottish National Party makes a lot of sense -- it gives it the ability to push for that one issue and to compromise on all others, negotiating its way to policy success (at least theoretically) on that issue. As long as the party is one of the top two in its district, voting for a single-issue party makes some sense. But why is there support for generalist third parties in Britain (and Canada's) first-past-the-post system? Why don’t voters, donors and candidates abandon it for their preferred major party?
I suspect the reason has to do with weak internal party democracy. The Lib Dems were formed when what was left of Gladstone's Liberal Party, which had limped along for much of the twentieth century, was merged with the Social Democrats, a moderate off-shoot from the Labor Party. Had there been substantial room -- through primary elections or other means -- to contest elections inside the party, my guess is that the Social Democrats would have taken the form of the Democratic Leadership Committee, a roughly contemporaneous moderate off-shoot group, but who fought primaries instead of splitting from the Democrats. The absence of the ability to do this (Britain just began experimenting with holding primary elections in 2009) led to groups who were who were sufficiently unhappy with both parties that they would chance their preferred grouping losing power in order to make a point (or have a chance of creating a hung parliament.) This doesn’t happen in the United States, outside of Presidential campaigns. For instance, in this election cycle, the ability of Tea Party supporters to contest and win Republican primaries has quelled talk of a third-party consisting of Tea Partiers.
Elsewhere I have been skeptical of the degree to which primaries express voter policy preferences. There are no parties internal to the Democrats and Republicans and so voters can't use party labels when voting in primaries, leaving uninformed voters without the ability to translate their haphazard observations into a retrospective policy-based vote. And so policy preferences don't play much of a role in most primaries. But primaries do have benefits. Particularly, they draw the energies of interest groups, donors and candidates into the two-party system and away from third parties. And this allows America's FPTP system to work.
This leads to a final point. The discussion in Britain is currently whether to abandon first-past-the-post for proportional representation. And I understand why they are having this discussion -- their first-past-the-post system is quite bad, producing none of the traditional benefits of the system and all of the costs. However, there is another option. Labor and the Conservatives could agree (if, say, there is a minority government and the parties make an agreement on this issue) to pass rules that would make FPTP work. They could pass rules requiring primary elections in each district, giving dissident groups the ability to contest elections with parties rather than through third parties. And they could pass other rules that discourage third party development. For instance, our Supreme Court has permitted all sorts of state government limitations on third parties -- bans on fusion, keeping small third parties out of public television debates -- that funnel political energies into the two party system. And as I argued here, it is a good thing they do.
However Britain reforms its political system, let's hope they do something. And let us use its example as a lesson. If the United States persists in having a FPTP elections, we should use our election law rules to ensure that we get the benefits of using that system. Our election laws should encourage a healthy competitive atmosphere inside the parties so that groups try to succeed inside the two-party system. And should we keep the oft-criticized rules that discourage the development of national third parties. Abandoning these rules, or closing up our primaries, would lead us to where Britain is today.
David Schleicher is Assistant Professor of Law at George Mason University School of Law. You can reach him by e-mail at dschleic at gmu.edu