Moderated Parliamentarism: A Response

Benjamin Reilly

University of Western Australia

Tarunabh Khaitan’s proposal for what he calls “moderated parliamentarism” is convincing. Like many political scientists, his focus is on ensuring that the institutions of representative democracy deliver for the interests of all people, rather than a sub-section. Unusually for a legal scholar, he also takes electoral systems and political parties seriously. Rather than treating them as institutional epiphenomena tangential to the real interests of constitutional law, he places parties and electoral rules at the centre of his analysis. 

This leads to some interesting intellectual dilemmas. Without ever mentioning the US founding fathers or the Federalist Papers, Khaitan shares Madison’s distaste for factions in political life, seeing them as destabilising entities which increase the political participation costs of excluded minorities and make one of the core functions of political parties — to aggregate interest and package policies — more contested and more difficult.  

At the same time, he exalts the role of proportional representation for his proposed upper, checking/appointing chamber of parliament — the very electoral system model which is both theoretically and empirically most likely to deliver factional parties. While he does emphasise the need for large, encompassing parties in his government-formation chamber, and a reasonably high threshold for the proportional elections in the other, checking/appointing, chamber, he also wants to give all significant minorities — including ethnic and other ascriptive minorities — a seat at the table.  

This tension between representing minorities (good) while avoiding factions (bad) is never really resolved. One way to resolve this dilemma may be to follow political scientist Giovanni Sartori and look at political parties not in terms of their support base but of their ideological positioning and, in particular, their willingness to uphold or undermine the constitutional order.  

 Sartori’s (1976) concept of ‘anti-system’ parties, those opposed to the very institutions which brought them into office, may be relevant here. Although his framing of the concept mainly referred to the totalitarian parties of the inter-war and post-war decades such as Italy’s Communist Party, there are more relevant contemporary analogies. 

 A striking example is the transformation of the Republican Party in the United States under Trump, and the willingness of many Congressional Republican members to oppose the results of the 2020 election and indulge the conspiracy theories which led to the mob assault on the Capitol on January 6, 2021. 

 The other political scientist echoed here is Arend Lijphart (1984, 1999), who has made a life’s work of inductive studies of democracy and has consistently emphasised the importance of many of the same institutions as does Khaitan — albeit based on large comparative empirical research rather than deductive reasoning. These include the importance of parliamentarism over presidentialism, the benefits of bicameralism and proportional representation, the crucial role of governing coalitions in sharing power, and the need to represent as many segments of opinion as possible in the legislature — but not so many as to create fractionalised politics. Indeed, Lijphart’s work, and the thousands of studies he has inspired, stands as a rejoinder to Khaitan’s contention that the literature is devoid of studies which bring together analysis of parliamentary, party, and executive relations. While both Sartori and Lijphart are cited in Moderated Parliamentarism, their key findings are worthy of further consideration by the author. 

Khaitan makes the case for moderated parliamentarism as a sub-type of what he calls ‘semi-parliamentarism’ — where the political executive must enjoy the confidence of one (and only one) chamber of a bicameral legislature to remain in power. The moderated version of this regime-type is driven by having the two chambers chosen by different electoral systems: a lower confidence and opposition chamber elected on a majoritarian basis, and a checking and appointing chamber elected on a proportional basis.  

The kind of electoral system to be used is moderated as well: in moderated parliamentarism, the majoritarian ballot gives voters more power than a straight plurality or ‘first-past-the-post’ ballot by giving them the options to rank or cumulate their vote, a process which Khaitan calls “dividual”. The electoral systems literature going back to at least Rae (1967) makes a similar distinction between ‘ordinal and 'categorical' ballot structures. 

This proposal also speaks to major debates taking place today in the United States and elsewhere on the benefits of either approval voting (seldom used in practice) or “ranked choice” voting, which has been used for over 100 years in Australia. By eliciting more information from voters at election time and offering greater nuance in political choices, such ballots allow voters to express their gradation of opinion between candidates or parties, rather than just selecting a single categorical choice, as in a first-past-the-post contest. This system has recently been adopted for future Congressional and Presidential elections in two US states (Maine and Alaska). 

Khaitan’s proposal balances this highly majoritarian lower house model (which requires winners to gain an absolute majority of the vote, either outright of after the distribution of preferences) with for a proportional electoral system in his upper checking and appointing chamber, albeit with a “reasonably demanding threshold”.  

In this, once again, it is impossible to miss the empirical reality that he is advocating something very like Australia’s bicameral federal parliamentary system, which combines two equally powerful chambers, one elected by majority formula and the other by proportional representation. This has meant that contentious legislation does indeed need to be negotiated carefully to make it through the upper house, and many proposals founder under the “checking” role of the Senate.   

Other aspects of the Australian system which are congruent with Khaitan’s deductive preferences include:

• joint parliamentary committees formed between each house of Parliament;  

• a small number of large, aggregative political parties who compete for government in the lower house, and a larger number of smaller ones who gain representation in the Senate; and  

• the use of preferential, ranked-choice ballots combined with a ‘ticket vote’ option for the upper house electoral system, making its elections essentially a contest between political parties rather than candidates.  

Indeed, as I have argued in a paper Khaitan cites several times (Reilly 2018), Australia may — by good luck rather than good management — have alighted on an unusually stable political system which combines multiple representative mechanisms and centripetal incentives, creating a self-reinforcing and centrist dynamic between political parties, elections and parties. If so, Khaitan deserves credit for fashioning a normative model which both draws on and builds on this unlikely hybrid model of moderated parliamentary democracy. 

Benjamin Reilly is Professor of Political Science and International Relations at the University of Western Australia. 

Suggested citation: Benjamin Reilly, ‘Moderated Parliamentarism: A Response’ IACL-AIDC Blog (6 May 2021) https://blog-iacl-aidc.org/workshop-my-paper/2021/05/06-moderated-parliamentarianism-n34ck.