On coming first, yet losing

John Key is claiming that the party with the most seats after the next election has a "moral mandate" to govern. Well, you would expect him to think that, wouldn't you?

It seems like I haven't been the only one to take the by-election result in Ikaroa-Rāwhiti as an open invite to speculate wildly on the possible outcome of a general election to be held in some 18 months. Especially after this result precipitated Pita Sharples' decision to give up the Maori Party leadership, there's been quite a bit of crystal ball gazing as to what it all means for who'll get to run the country at the end of next year.

Now, in response to some media prompting, John Key has set out his view (via Vernon Small's column) on potential post-2014 arrangements:

Key said the largest party had the "moral mandate" to govern.

"If National was to go out there and poll 46 per cent or 47 per cent - very similar to the result in 2011 - and not form the Government I think there would be outrage in NZ," he said.

Not surprisingly, that view happens to be one that serves John Key's future interests very well. I don't think you'd find many takers on ipredict for a contract that only pays out if National is not the largest party in Parliament after the next election. So I can see why he's so keen to have his reading of the situation become a truth universally acknowledged.

However, it is a position that is based on flatly wrong predicates. And seeing as it is a point of view that probably has quite wide appeal, as well as one that will be parroted on a regular basis next year (look out also for repeated references to a "coalition of the losers"), it is worth spelling out in some detail just why it is so wrong.

When it comes to our Constitution, there is one rule, and one rule only, that decides who has "the right" to govern in New Zealand. That rule - to be found in the Westminster-derived constitutional convention upon which our governing arrangements sit - is that the individual MP who enjoys the support and confidence of a majority of the House of Representatives gets to be Prime Minister, hence chief advisor to the Governor General. That status then enables him or her to advise the Governor General on the appointment of other MPs as Ministers of the Crown, who collectively form the Government.

Sure, sometimes that rule may be a bit unclear in its operation; there are potential situations where it is not certain which MP (if any) enjoys majority support in the House. And there also are "transition points" between governments, where a PM (and Government) that has lost support of the majority of MPs stays on in a caretaker role until a new PM (and Government) is sworn in.

But for all that, the basic rule itself is clear. And note all that this rule demands: majority support in the House of Representatives. It doesn't matter how that support is gained, or where it comes from, or to whom it is given ... if you got it, you get to govern; but if you don't, you don't. End of story.

Now, the reality of MMP is that 46 or 47 per cent of the party vote is not enough to give a party a majority of the seats in the House (at least, not without a bunch of other parties sucking up a relatively large chunk of the party vote without making the representation threshold). So a party like National that has cannibalised its support partners and so is able to command such a large share of the party vote certainly enjoys an advantage in the race to a majority; it may be within only a couple of seats of achieving that goal, so is well placed to negotiate the last little bit of support needed to get it over the line. But it does not, purely by virtue of having more seats than anyone else, automatically win the race ... because until you have majority support, then you don't have anything.

Simply put, in terms of how our Constitution works, a party with 47 per cent of the vote has no more "right" to govern the country than does a party with 5 per cent. By themselves, both are minorities within the House of Representatives - and a majority is needed to govern.

"Ah!", you might say at this point. "But John Key wasn't talking about a Constitutional right to govern. He was talking about a moral right to do so - in that because the New Zealand public doesn't actually understand how our Constitution works, they simply expect that the biggest party ought to be in charge, and will be angry if this doesn't happen. So while it is true that even a party with 47 per cent of the vote still needs extra support to rule, the onus is on other parties in Parliament to grant it the support that lets it do so."

Well, we'll get to the question of whether it is the case that New Zealanders really expect that the biggest party will get to be in charge - in that "there would be outrage in NZ" if it didn't - in a moment. But let's accept it for the moment ... why would New Zealanders think it?

First, it is true that the various Governments that have formed under MMP have been led by the biggest party in Parliament. But they didn't need to be. In 1996, National only formed a coalition Government on the back of a pretty cynical switch in attitude by Winston Peters. Had he stayed true to his campaign rhetoric (and the evident desires of those who voted for him), our first MMP Government would not have included the largest party in the House.

And in 2005, it took several weeks for Don Brash to give up on his hopes for a four-way governing arrangement that would have kept Labour - the largest party in the House - from a third term in office. So it is hardly the case that following each election, all the parties have simply looked to see which one has won the most votes and then shruggingly said "oh well, I guess they'll get to be in charge." That may be the way things worked out in practice ... but there was hardly a cast-iron assumption that they had to do so.

Second, it also is true that various minor parties have over time appeared to accede to the largest party's "moral right" to govern. So, in past electoral campaigns both NZ First and UnitedFuture have publicly stated that they will give either National or Labour precedence in post-election negotiations, depending on which of these two parties wins the greater share of the party vote. 

But again, let's recognise these statements for what they are. They aren't pre-election commitments to support the largest party into government, no matter what. Rather, they simply are statements about who they'll talk to first about lending their support (and thus votes in the House). And furthermore, they are statements designed to solve a particular problem that those smaller parties faced. Because if either were to express a solid pre-election preference for governing with one major party over the other, then they risked alienating a substantial portion of their support base.

So a default position of "we'll give precedence to talking to the larger party after the election" allows those parties to stave off media demands about who they will support post election, while avoiding scaring off any voters who prefer National over Labour (or vice versa). It is more a position of pragmatic issue avoidance than a principled recognition that "the biggest ought to be allowed to rule".

Finally, it may very well be that the New Zealand voting public carry some residual pre-MMP belief that having "the most" seats somehow equates to having the right to run the country. For most of New Zealand's political history, this actually was true. The First-Past-the-Post voting system meant that whichever party had "the most" seats thereby inevitably also had a majority in the House, allowing it to govern by itself. 

(Although, it is worth reminding ourselves that under FPP, having a majority of seats in the House did not mean having majority support in the country as a whole. That hasn't happened since 1951 - and also recall both 1978 and 1981, when the National Party won a majority in the House with less votes than Labour received.)

However, in a MMP environment, conflating "the most" with "the majority" is inexcusable. The whole point of changing our voting system was to make coalition governments a virtual necessity. And the whole point of coalition government is that it brings together various parties that are sympatico enough to govern together, without being so alike that there is no point to their separate existence.

Therefore, coalition government rewards those parties that are able to reach beyond their own support base and make common cause with parties that appeal to different ideological viewpoints. Which is why John Key was so very wise to seek to include the Maori Party in his governing arrangements back in 2008 and 2011. Because, ultimately, under MMP it is your success in being able to make just these sorts of connections that win you a place in government, and not your success in winning votes for your party per se.

Nor, I should add, is any ongoing public misunderstanding that "the most" somehow equates to "the majority" helped by media coverage that continues to fixate on the relative poll standings of National and Labour, as if this will be the major determining factor in the next election. Sure, it's not unimportant how well each of these parties are doing - but it simply does not matter as much as the respective standings of the party "blocs" that each is a part of.

And here I return to my central point. A National Party that gets 47 percent in the polls but is unable to negotiate support from another 2 or 3 MPs will lose the 2014 election! Whereas a Labour Party that gets 33 per cent in the polls, joined by a Green Party that gets 11 per cent and a NZ First Party that gets 5 per cent will win the 2014 election! That isn't just a consequence of mathematics - it is how MMP always was supposed to operate.

Which is where John Key's claimed "moral mandate" claim comes in. It is an attempt to avoid becoming a victim of his own party's success, in that National has so effectively absorbed the support its previous governing partners enjoyed that their electoral future now looks distinctly uncertain. So, given that the correlative of a party having a "moral mandate" to govern is that other parties are under a "moral obligation" to let it do so, he is seeking to create pressure on whatever alternative support options may exist (and by this, I mean NZ First) to shift into his camp. By proclaiming this "moral mandate", and asserting there will be "real anger" if it is ignored, John Key is thus attempting to will it into being.

Now, given that John Key undoubtedly thinks that the best thing for New Zealand is that he remain in office after 2014. So I can see why he thinks other parties really have a "moral obligation" to let him do so. But there equally is no reason for anyone who votes for any party other than National to think it. The only obligation that a party has is to negotiate the best governing arrangement it can to deliver outcomes that are beneficial to those who cast a vote for them.

That arrangement may well include the largest party in the House (as it has after each of our MMP elections). But it equally may not. And that is perfectly OK, too.