Paul D'Anieri, Understanding Ukrainian Politics: Power, Politics, and Institutional Design, 2007.
8 Parliamentary Rules and
Party DevelopmentThe weakness of political parties is a central problem in Ukraine. Around the world, liberal democracy is built, in one way or another, on the assumption of a strong party system. The previous chapter showed that while developing such a party system in Ukraine is possible, it will not be easy. In addition to the electoral law, the rules of the parliament will be important to whether or not strong parliamentary parties can emerge. The purpose of this chapter is to show why parliamentary rules matter, and where the problems are in Ukraine's current arrangements.
There is, unfortunately, little comparative literature on the role of legislative rules in the formation of party systems. There is an immense literature, some of it highly technical, about the rules of procedure in the two houses of the U.S. Congress. The literature leaves little doubt that these rules create incentives that powerfully influence the strategies of legislators and parties and shape the legislation that eventually emerges.1 However, the focus has been on legislative strategies, not on strategies of party-building. Instead, the assumption is that the party system is determined by external factors and that parliamentary rules simply shape legislative strategies.
While there is a literature on party-switching between elections, parliamentary rules are not seen as a central factor in this process.2 This perspective complements the standard literature on party systems, which views party systems as being determined by the combination of societal cleavages and the electoral law in place. Because parties are formed primarily to contest elections, it stands to reason that elections and electoral laws will play the main role in determining what strategies parties devise and which parties survive. That has been the main reason to neglect the role of parliamentary rules in party-building.
Various authors, however, open the door to a more nuanced analysis of the determinants of party systems, in two ways. First, by showing that the initial condition of the party system has an important independent effect on the influence of electoral laws, they demonstrate that the question involves more than simply cleavages and electoral laws. Moreover, they prompt us to ask what influences those "initial conditions." Second, by pointing out that the key issue, ultimately, for building liberal democracy is not electoral parties but parliamentary parties, they prompt us to investigate what happens to electoral parties when the election is over and the parliament convenes.
[P]arties may be the real units in the electoral arena, and yet lose their "unity" in the parliamentary arena, as parliamentary parties. . . . [P]arties matter only if they display a modicum of discipline. Without parliamentary discipline, whether parties are two or more does not make much difference.3Parties are formed not only to win elections but also to pass legislation within legislatures,4 so it stands to reason that these rules as well as electoral rules would influence coalition behavior. Duverger himself argues that such rules can have important effects, showing that in France, the double-ballot majority system yielded more than ten parties under the Third Republic (prior to 1940) but only four in the Fifth Republic (post-195 8). The difference, he asserts, is explained by parliamentary rules governing the minimum number of members of a parliamentary grouping (there was no minimum prior to 1940, and a minimum of thirty after 1958).5
This problem is profound in Ukraine, where after the 2002 parliamentary elections a relatively small number of successful electoral parties rapidly fragmented into a large number of parliamentary parties, with new parties being formed and existing ones disappearing frequently, and members constantly switching among the various factions and independent status.
Parties, Blocs, and Factions in the Ukrainian Parliament
Before embarking on the analysis in any greater depth, the role of "parties," "blocs," and "factions" in the Ukrainian parliament should be clarified. These three different entities all correspond roughly to the Western notion of a "party," yet in Ukraine they are defined distinctly and play different roles. "Parties" in Ukraine are organizations formed to contest elections and participate in politics in other ways. Each one is registered independently, has its own leadership and party platform, and so on. In this way, Ukrainian parties are similar to those in the West. However, because they are often small, and cannot do well in elections by themselves, they ally into "blocs."
Electoral Blocs
"Blocs" refer to coalitions of parties that join together before an election for the purposes of competing in the election. Especially when competing in proportional representation, it makes sense for ideologically similar parties to unite, both to maximize their chances of passing the threshold and to pool limited resources. In most cases, however, the parties do not actually merge into a single party, but form an electoral alliance known as a "bloc." These alliances are understood not to be permanent, as a merger is; rather, they are based on the tactical needs of competing in elections. Already, we see a partial difference between the role of parties in Ukraine and that typically understood in the West. Parties in Ukraine are formed on some basis other than winning elections, and then must ally into blocs to contest elections. This phenomenon also occurs elsewhere—Italy is one of many examples. The existence of these blocs shows why the actual number of parties in parliament may substantially exceed the number of "blocs" that triumph in the elections.
A look at two prominent blocs in the 2002 parliamentary elections illustrates this phenomenon. Our Ukraine consisted of over a dozen minor parties, none of which were actually willing to merge with each other.6 United Ukraine consisted of nine parties:
• Labor Ukraine
• Party of Regions
• Industrialists and Enterprise Bosses
• Our Ukraine (which was the name of a party as well as bloc)
• National Democratic Party
• People's Power
• Agrarian Party
• Democratic Initiatives
• European ChoiceAs Andrew Wilson examines in detail, these nine went their separate ways once they had elected a speaker of the parliament.7 The breakup of the coalition took place in part along the regional lines that the parties were built upon, with one part of the Donbas clan, led by former head of the State Tax Administration, Mykola Azarov, going with European Choice, the Kharkiv group going with Democratic Initiatives, and so on. By June 2002, barely three months after the election, five of these parliamentary factions had fewer than twenty members.
If these various parties collaborate only upon getting into parliament and then behave as independent actors, the parliament is effectively divided into the overall number of independent parties, not the nominal number of blocs selected. Since there are no means to ensure bloc loyalty (ensuring loyalty within parties is hard enough), there is no reason to consider these blocs as single parties.
Factions
Parliamentary "factions" (fraktsia, in Ukrainian) sometimes called "fractions," are the groups of members in which the parliament actually functions. In the parliament elected in 2006, each faction corresponds to one of the electoral blocs that passed the 3 percent threshold in the election. Two of these factions (Our Ukraine and the Tymoshenko Bloc), represent multiple parties, like the electoral blocs they are built on. Prior to 2006, however, there was not a close connection between the results of elections and the factional composition of parliament.
.In any parliament, rules govern how various groupings are recognized officially and how they interact. In most parliaments, the groups under consideration are parties. In Ukraine before 2006, there were consistently independents in parliament. The parliamentary rules were designed to encourage consolidation by allowing independent deputies to join party-based groups (just as the occasional independent or third-party member in the U.S. Congress generally caucuses with one of the two major parties). Moreover, to encourage parties with small numbers of deputies to merge in their parliamentary functions even as they remained separate, some supra-party structure was needed. The result is that groups in the Ukrainian parliament were recognized as "factions," rather than parties. In this sense, "faction" did not necessarily mean a faction of a party (i.e., a subset), but nearly the opposite. A "faction" in the Ukrainian parliament was a formal grouping larger than a single party. In general, they were composed of two or more parties and several independents. In some cases, the membership of a faction could be identical to the membership of a party or electoral bloc in parliament. These rules were created in the hope that there would be fewer factions than parties in parliament, thus facilitating coalition-building and efficiency. Prior to 2006, there was almost always a greater number of factions in parliament than the number of parties elected via the proportional representation (PR) section of the ballot. The only exceptions were in the first seating of a new parliament following an election, before the parties and deputies had time to realign themselves. Table 8.1 shows the pattern of constant realignment in the 1998 parliament.
Table 8.1Variation in Membership, Factions in Ukrainian Parliament, 1998-2002
5/14/98 7/21/98 1/15/99 7/16/99 1/20/00 7/14/00 1/18/01 7/13/01 1/18/02 3/6/02 Nonfaction
36
20
26
16
25
50
45
48
47
46
Communist Party
of Ukraine
119
120
122
122
115
114
111
113
113
113
Rukh
47
47
46
30
26
21
23
22
22
23
Left Center
35
33
24
24
22
17
16
17
17
17
Greens
24
24
27
23
18
17
17
17
15
16
National Democratic Party
89
87
72
30
27
23
20
16
14
14
Hromada
39
45
45
17
14
0
0
0
0
0
Progressive Socialist
17
14
14
14
11
0
0
0
0
0
Social Democratic Party
of Ukraine (United)
25
25
24
26
35
33
33
36
32
32
Independents
0
26
19
19
14
0
0
0
0
0
Agrarian
0
0
15
15
15
0
0
0
0
0
Reforms
0
0
14
21
13
15
15
15
15
15
Rebirth of Regions
0
0
0
28
36
36
35
18
15
15
Rukh (Udovenko)
0
0
0
16
17
19
17
14
14
14
Batkivshchina
0
0
0
28
35
34
32
26
24
24
Trudova
0
0
0
18
23
44
48
46
38
38
Solidarnist
0
0
0
0
0
27
23
21
21
20
Regions
0
0
0
0
0
0
0
24
23
23
Yednist
0
0
0
0
0
0
0
0
20
21
Source: Laboratory F-4, "Dynamics of Factions Arrangement (During Third Convocation)," Verkhovna Rada-Week, no. 4, May 13, 2002. For a detailed listing of members' faction changes, chronicling every single change, see Komitet Vybortsiv Ukrainy and Laboratory F-4, Verkhovna Rada Ukrainy III Sklykannya (1998-2002 rr), (Kyiv: Fact, 2002), 27ff.
Roots of the Faction System
These parliamentary groupings had their origin in the final Soviet parliament, elected in 1990, when a number of reformist members joined together to form the "democratic bloc" in parliament. Because the Soviet system made no allowance for multiple parties, new mechanisms were invented spontaneously when multiple groupings emerged. In the 1994-98 parliament, the faction system was institutionalized more fully to allow the large number of independents to form parliamentary groupings, or to join them. This practice, and the perceived utility of it, caused the status of factions to be enshrined in the parliamentary rules, which allowed independent deputies to form groupings for parliamentary purposes only, without having to join a party for electoral or other purposes.8 By bringing the independent deputies into some organizational structure, the practice of forming factions helped to structure the parliament, but the effect was a relatively weak one, because members could and often did desert their factions for any number of reasons. There was very little faction discipline. Moreover, by creating an organizational structure that competed with the party structure, the faction system undermined party discipline. It was possible, and not unusual, therefore, for a faction based on a particular party that passed the 4 percent hurdle to split into two, or simply to dissolve, as the Hromada faction did in die 1998-2002 parliament.
Due to an odd set of circumstances, die threshold for official recognition of a faction was reduced to fourteen members, or roughly 3 percent of die parliament, even lower than the 4 percent required for admission into the parliament. Originally, when the faction rules were created, the minimum membership necessary for a faction to be given official status was set at twenty-five members, or 5.6 percent of the membership. However, widi the move to the mixed system in 1998, some parties barely passed the 4 percent threshold, such that the smallest party who gained entry on the party list portion was entitled to fourteen seats. Because it seemed unfair for a party elected on the party list to be denied faction status in the parliament, the number of seats required for official status was correspondingly lowered to fourteen.
To prevent the fourteen-member limit from leading to the fragmentation of the larger groups, another rule was adopted at this time, specifying that only parties that had passed the 4 percent threshold could form recognized factions. This limited the number of factions to eight at that time, prevented new factions from being formed from among independents, and increased substantially the disincentives to dividing or abandoning existing parties. Deputies seeking to leave their party would have to become independent or join another party. However, independent deputies initiated a lawsuit, contending that this rule violated their constitutional rights of association. The Constitutional Court declared the rule unconstitutional.9 As a result, any group of fourteen deputies could form an official faction, which led to the wholesale fragmentation of the parliament.
The low threshold for forming a faction, combined with die elimination of any barrier to forming new factions, led to an ongoing process of faction dissolution and formation, rendering the parliament incoherent. This incoherence led directly to the campaign to revise the constitution to give more power to the president in 2000. There was no attempt to revise the constitution to strengthen the parliament by allowing the previous limits on faction formation, or through other measures. By fostering the fragmentation and ineffectiveness of the parliament, the weak parliamentary rules led indirectly to Kuchma's push for greater power.
Parliamentary Rules and Parliamentary Fragmentation
Parliamentary rules have had a powerful effect on fragmenting parties and hence on parliaments in Ukraine.10 They have not merely failed to create incentives to coalesce, but actually created incentives to divide parties. We focus here on three aspects of the system: the rules for party recognition in the parliament, the rules for conducting business in the parliament, and the rules determining the power of parties relative to their members in parliament. In Ukraine, in particular, these rules contributed to party fragmentation, and this effect was independent of the electoral system. The adoption of new rules for the 2006 parliament will improve the situation considerably, but the exact effect of those rules remains to be seen.
The first problem in Ukraine is the absence of any substantial disincentive to the fragmentation of factions. We can assume that there are natural incentives for parties to split. The question is what disincentives, such as a decreased chance at gaining power, prevent parties from splitting or even encourage them to merge? Leaving aside electoral politics and focusing on policymaking within the parliament, there are few identifiable benefits attached to having a larger party or faction.
Incentives to Split Parties
The second problem with the pre-2006 rules did not just represent a low barrier to fragmentation, but actually created a positive incentive. A deeper examination of the functions and prerogatives of factions indicates that there was some incentive for factions or parties to divide, making the low threshold even more significant. There existed something akin to an inverse of Duverger's "mechanical effect," in that rather than losing influence in the system by refusing to merge, the rules made it possible to gain influence by dividing. Attainment of faction status yielded two benefits to parliamentary groups: the right to have a faction staff at public expense, and the right to hold a seat on the presidium of the parliament, which controls the work of the parliament, including agenda formation and committee assignments. Both of these created incentives to multiply party groupings.
According to the rules, each faction had a seat on the parliament's presidium, which develops the parliament's agenda. Each member of the presidium has one vote. A party that split, therefore, ended up with two seats on the presidium in the place of one (and two publicly funded staffs in the place of one). Rather than losing influence through division, a group could gain influence over the agenda this way. The potential was demonstrated in late 1999, when leftist factions boycotted the parliament because the presidium refused to schedule debate on President Leonid Kuchma's announced plan to privatize collective farms.11 Even though the left controlled more seats in parliament (and the leadership), rightist factions, which controlled more seats on the presidium, were able to block inclusion of the land reform plan on the agenda. In this case, a large number of small factions was able to stymie a smaller number of factions that probably controlled more seats in the parliament.
Clearly, the incentive to marshal as many votes as possible on the presidium is significant. Some observers felt that the fragmentation of United Ukraine into so many factions after the 2002 elections was in part motivated by a desire to gain additional influence over the presidium.12 Even if membership in this group did not bring influence over the agenda, it still brought resources in the form of staff and office space.
As Sarah Whitmore points out, an alternative means of organizing the parliament was used by the majority that existed briefly in 2000. That majority shifted most control over the agenda to a "coordinating council of the majority," in which voting was weighted according to how many seats each faction controlled, in which only members of the short-lived majority coalition participated. In this system, bills were brought to the floor only after their ability to garner 226 votes was confirmed.13 This model was an effort to shift Ukraine closer to West European parliamentary practices. It is unclear how strong a role the council of faction leaders played.
An additional incentive to fragment factions was simply the ambition of individual party elites, who, not wanting to be number two or number three in a moderate-size faction, might seek a split in order to become the head of a smaller faction. As long as he or she could bring along thirteen other members (each of whom might also increase correspondingly in importance), a new faction could be formed. The individual forming the new faction gained a seat on the presidium as well as the prestige of leading a recognized parliamentary faction. Leading a smaller faction could yield political benefits as other politicians courted the faction's support, as well as electoral benefits, through increased name recognition, and perhaps even business benefits. As emphasized above, the benefits of splitting a faction did not need to be enormously high as long as the costs were nearly nonexistent.
Ideological Sources of Fragmentation
Finally, fragmentation can be motivated by genuine disagreements on ideology or policy.14 In some of the cases where this has seemed to be the cause (e.g., the split of Rukh in 2000), policy disagreement may have been a veneer for petty personal rivalry among party leaders.15 In either case, however, a system that punished faction fragmentation would force leaders who disagreed on policy (or just did not like each other, or who could not decide on who should hold what position in the faction or party hierarchy) to seek to overcome those differences, rather than encouraging them to split. This tendency is exaggerated by proportional representation election rules, which give parties incentives to stress their differences from like-minded competing parties.16 Thus the rules on faction formation played an important part in causing the most destructive aspect of Ukrainian parliamentary politics: the unwillingness and inability of leaders with similar policy positions to join forces rather than dividing.
If that were not enough, there is some evidence that the effective threshold for a faction formation sometimes effectively went below fourteen members, making fragmentation even more likely. Because faction formation was separate from party membership, it was possible for a party with more than fourteen members in its faction to "lend" some to a faction that was short of fourteen members, in return either for some support in voting or simply for money.17 Indeed, this lending was rational and, based on anecdotal evidence, was not unusual.
In this system, the overall amount of privilege increased as parties fragmented. The overall number of seats on the presidium was not fixed, nor was the number of staff, nor the number of people who could gain the status of "faction leader." In technical terms, party fragmentation was a positive-sum game. As long as a splinter group continued to vote with its former faction, there was nothing to be lost, and much to be gained, through fragmentation. In economic terms, the Ukrainian parties were practicing the same sort of market-segmenting strategy practiced by purveyors of breakfast cereal and beer in the West. It may not have led to effective legislation, but it was rational from the participants' perspective.
To summarize, Ukraine has a problem in its parliamentary rules that is directly analogous to the dilemma it faces in choosing an electoral law. Efforts to reduce the number of independents and strengthen the role of parties have operated at the expense of efforts to reduce the number of parties and form a coherent party system. Thus, the fragmentation and inefficacy of the Ukrainian parliament will not necessarily be eliminated by a different electoral law. Even in a full PR system, parties in the parliament would continue to have some incentive and little deterrent to fragmentation. Only raising the bar for faction recognition, or eliminating factions altogether, and decreasing the benefits of segmentation would reduce these incentives.
Under the new rules that took effect in 2006, most of this is no longer possible: only those parties that crossed the 3 percent threshold in elections are recognized actors in parliament. While discipline among those parties may be low, new groupings will have to remain informal, and will not get additional resources or voting rights. Thus the incentives to fragmentation have been substantially diminished. These new rules are discussed in more detail below.
Voting Rules and Party Coherence
At some times, parliamentary voting rules also undermined party coherence in the Ukrainian parliament. In particular, the absence of roll-call voting has undermined party discipline. For much of the post-Soviet period, roll-call votes were rarely used in parliament. Instead, voting was conducted in secret, using an electronic voting system that connected deputies' desks to a tabulation system that displayed results immediately above the speaker's dais. While this system made for amusing television, as voting results appeared instantaneously, as in a game show, it helped undermine the role of parties for the simple reason that party leaders had little way of knowing whether their members had followed the "party line" or not.
Adopted in the early post-Soviet years as a barrier to the sort of pressure that the Communist Party used to ensure uniform voting, the secret ballot was adopted for the right reasons at the time. This demonstrates again the extra challenges created by the Soviet legacy. Measures that are seen as normal in liberal democracies seem particularly dangerous because they were so badly abused under communism. Transparency of voting in parliament is a case in point. While at the time it was adopted the secret ballot was necessary for the parliament to escape Soviet control, it subsequently undermined the ability of party leaders to enforce voting discipline, and the ability of voters to assess their legislators. Not only was it difficult for Ukrainian party leaders to sanction defectors, it was often impossible to know who had defected.
The ability of party leaders to "deliver" votes was impeded, and, by extension, it was much harder for leaders to strike bargains because there was no way to guarantee that a party leader could deliver what had been promised. Nor was it possible for parties to verify whether deals had been adhered to or not. Transparency is essential to the ability to verify bargains, and bargains are essential to passing legislation in a multiparty parliament. Secret voting undermined all of this.
Secret voting also undermined a key notion of representative democracy by making it impossible for voters to monitor their elected representatives, and, based on members' voting records, choose whether to vote for them again. Accusations concerning how an incumbent or party voted on one measure or another are standard in Western democracies. There is never any uncertainty. The absence of roll-call voting made it impossible to ascertain what an incumbent had actually done in parliament.
In the turmoil that followed the unseating of the leftist parliamentary leadership in January 2000, the new leadership instituted roll-call voting. This was deeply controversial, however, for it was recognized that the change was not politically neutral. It was widely anticipated that roll-call voting would strengthen the center and right parties at the expense of the left. Speaker Tkachenko, prior to his ouster, expressed the partisan nature of this issue, predicting that with a shift to roll-call voting, Ukraine would "ultimately be ruled by the IMF [International Monetary Fund]."18 For some time after that, the parliament's Web site listed every vote, not only the votes of individual legislators but also the votes of factions. That reportage was discontinued, and while it is still possible to obtain roll-call data, they are not easily available in Ukraine.19
The introduction of roll-call voting has made no perceptible difference in the cohesion of the parliament—nor could it be expected to. It would be interesting to investigate quantitatively whether faction loyalty increased after the introduction of roll-call voting, but this is not possible given the absence of data from the period when it was secret.20 Nonetheless, the adoption of roll-call voting is important for two reasons. The first is the question of democratic representation discussed above. While it is still unlikely that most citizens can readily find out how their representatives voted on key issues, the institution of roll-call voting is a step in that direction. On crucial votes, such as the effort to amend the constitution in early 2004, the bargain that resolved the postelection impasse in late 2004, and the election of the speaker of parliament in 2006, press coverage meant that the different factions' voting records, and even the votes of key individuals, were widely known and discussed.
Second, while roll-call voting will not by itself substantially increase party discipline, it is one of the necessary ingredients. To increase party discipline, it is necessary not only for party leaders to know how their members vote, but also for them to have some powerful sanction or benefit that can create an incentive to vote with the party. As noted in the previous chapter, the fact that many parties do not have extensive financial resources and often will not be around at the next election undermines the positive benefits to be offered.
Table 8.2Shifting Results of the 2002 Parliamentary Election
______________Seats________________ Faction March 31, 2002 December 25, 2002 Our Ukraine 112 102 Communist Party 65 60 Tymoshenko Bloc 22 18 Socialist Party 22 20 Social Democratic Party of Ukraine (United) 27 39 United Ukraine (and successors) 121 193 Source: Freedom House, "Nations in Transit 2003: Ukraine," www.freedomhouse.org.ua/ print/news/. Accessed April 24, 2004.
The Result: Shifting Faction Membership, or "Political Tourism"
The shifting of faction membership, or "political tourism"21 is not simply a hypothetical possibility, as we can see by comparing the composition of the parliament that was elected in March 2002 with the composition as it was later the same year (See Table 8.2). United Ukraine had split into its constituent parties, making the entire parliament less structured. More significant, however, is that this bloc of parties managed to gain seventy-two seats, or roughly 15 percent of the parliament, with no change in the election results. Clearly, the low disincentives to fragmentation and the ability of powerful actors to create incentives to change membership combined to play a powerful role in shaping the membership of the Ukrainian parliament under the pre-2006 system. In a system where the composition of the parliament should ostensibly be determined by elections, this is highly problematic on a practical level (for the voters) and also with respect to the standard political science analysis, which sees parliamentary composition as determined solely by electoral laws.
Voting Rules and Parliamentary Immobility
Immobility in the parliament can be induced by fragmenting of parties as well as by artificially raising the number of votes necessary to pass a measure. Ukraine's rules of procedure do this in important ways that not only make it more difficult to pass legislation, but also make it easier for parties and members to disguise their votes on many issues, thus undermining the shift to roll-call voting.
In almost every democracy, most legislative decisions are made by simple majority. Supermajorities are required for extraordinary measures, such as overriding a presidential veto or ratifying a treaty. However, Ukraine's rules result in a situation in which supermajority votes are necessary for a vast number of issues. Consequently, it is much easier to block legislation in Ukraine than it is elsewhere, which exacerbates all of the other problems in passing legislation.
The problem is that, in contrast to most countries, Ukraine's parliamentary rules provide in many cases for a majority not of the members present, but of the overall composition of the parliament (226 of 450 members). As are many other facets of the system, the rule is a holdover from the Soviet era. Therefore, even when far fewer than 450 members are present, many decisions still need to be passed by 226 votes. It is not clear what the reasoning behind such requirements was, but it is clear that the rules impede the passage of legislation.22
Depending on how many legislators are absent from a session, the requirement for 226 votes to pass a measure can require a small supermajority or a rather large one. In any event, it is often the case that a bill receives a majority of the votes cast, and yet does not pass.
This provision allows deputies and parties to further obscure their voting records. This has become especially important since the advent of roll-call voting in 2000. Requiring 226 votes to pass legislation essentially means that any parliamentarian who does not show up to vote is voting against every bill considered. This misrepresents members who could not attend the session for some legitimate reason (and, by extension, those whom they represent). It also makes it possible for parties to kill legislation without going on record as voting against it, simply by abstaining or being counted as "not present." In many cases, entire factions numbering dozens of people would be counted as not present or abstaining on certain measures. Such measures might win a majority of votes cast, but nevertheless be defeated. Yet the parties or members who blocked the measure did not have to go on record as having voted against it. This practice continued after the Orange Revolution. In August 2006, when the parliament approved a controversial measure to allow foreign (NATO) troops to conduct exercises on Ukrainian territory, nearly the entire Tymoshenko Bloc (124 of 129 members) was absent from the voting.23
The Adoption of the Imperative Mandate
Ukrainian leaders adopted a new provision, known as the "imperative mandate," as part of the deal to hold a third round of presidential elections in December 2004. This provision, an adjunct to the adoption of a fully proportional election law (discussed in Chapter Seven), is intended to end "political tourism" and strengthen parties, both in parliament and in elections, but as long as the parties remain weak in other ways, the imperative mandate is unlikely to have much substantive effect.
The term "imperative mandate" means that a parliamentary seat won through proportional representation belongs to the party, rather than to the individual who holds it. Seats are distributed by parties to individuals (according to their place on the party list). In such a system, an individual who leaves the party also loses his or her seat in parliament. In such systems, party defection is nearly unheard of. A parliamentarian who gives up his or her seat can expect never to serve in parliament again because a spot on some other party list would be nearly impossible to obtain. This arrangement is crucial to party discipline in some systems.
Without the imperative mandate or some other means of punishing defectors, parliamentary deputies are essentially "free agents." This has been the case in Ukraine until 2006. While the party has controlled the list at election time, once a member was admitted to parliament, the mandate was his or hers, and he or she was free to support any party or policy. Therefore, there is no automatic connection between the electoral party and the parliamentary party. The ongoing defection of party members, to the point where some electoral parties disappeared as parliamentary parties (e.g., Hromada after 1998) has been a major problem in Ukraine.
In such a system, parties get no chance to sanction defectors until the next election (by leaving them off the parry list, or moving them down). In Ukraine, this sanction has been very weak because it is relatively mild and slow in coming. The period between elections means that the penalty for defection cannot be immediately assessed. The weakness of the parties (analyzed in the previous chapter) means that potentially being left off a party list in the future is not a very powerful threat. The party in question may not even exist at the next election. Moreover, because mere are always other parties looking for prominent individuals for their list, elites are not shut out of parliamentary politics when shunned by their party. This phenomenon creates a vicious cycle: the weakness of parties means that individual politicians can flout their authority at relatively low cost, which contributes to the further weakness of parties and of the party system.
Many observers as well as Ukrainian elites advocated for the imperative mandate as a solution to these problems. Such a proposal was made by Our Ukraine in late 2002, responding to the ability of the pro-presidential parties to entice deputies to leave the Our Ukraine faction following the 2002 parliamentary election.24
With the imperative mandate, members who leave their party must leave parliament and lose their base of power and name recognition at least until the next elections. Some might still choose to do this, but only the most well-financed or well-known can assume they will succeed.
More significantly, the imperative mandate will short-circuit the widespread practice whereby substantial inducements, either political or financial, are offered to get members to switch factions. This will become impossible. The number of seats each party or faction secures in an election will be fixed. A member who abandons his or her party will not be able to join another. Instead, that party would name a new member from its party list. This will eliminate the incentives for factions to actively poach each others' deputies. In addition to stabilizing the party structure in the parliament, and linking the parliamentary party structure directly to the electoral outcomes, eliminating the free agency of deputies might substantially reduce the amount of corruption involved.
While the adoption of the imperative mandate is a step forward, it will not automatically lead to strong party discipline. Its effects on voting remain unclear, because members of parliament may vote against their party without defecting from the party. So while the formal splitting of factions and the formation of new factions with official status should effectively be halted, individual members may still vote independently, undermining leaders' abilities to make and keep bargains. This became clear only days into the seating of the new parliament in 2006. When Viktor Yanukovych was elected prime minister, only 31 of 79 members of the Our Ukraine faction voted for him, meaning that over half deserted the party leadership. Yulia Tymoshenko quickly announced that she would try to recruit these dissenters, along with others from the Socialist Party, in an "inter-faction opposition coalition." Only when party leaders have effective means of sanctioning those who reject the party line will party discipline be secure.25
Opposition to the Imperative Mandate
It is not hard to understand why Kuchma and the oligarchic parties opposed institution of the imperative mandate. In a system where members of parliament are free to switch parties, they are likely to be swayed by incentives. The presidential administration and the large business interests linked with the oligarchic factions had a disproportionate ability to provide incentives. Following the 2002 elections, there was an unseemly process by which Our Ukraine deputies defected amid credible reports of massive incentives (bribes) as well as disincentives (threats to members' business interests). These tactics are detailed in Chapter Nine.
To some, the imperative mandate seems undemocratic because it denies the individual member the freedom to choose his or her faction in parliament. But a stronger case can be made that it is more representative than a system where members are free agents. In a PR system, voters vote for parties, not for individuals. When a deputy deserts the party on whose list he or she was elected, it causes a distortion in the translation of votes into seats. As Tables 8.1 and 8.2 indicate, those distortions can be significant. The prevailing Ukrainian practice of changing the numbers of faction members after the election essentially means that the expressed preferences of the voters are being overturned by the machinations of the politicians.
Consider, for example, the 4.7 percent of the electorate who voted for Hromada in 1998. When defections of various sorts brought Hromada below the threshold for faction status, and the faction disbanded, those voters' votes were effectively thrown away. Unless one believes that voting for parties rather than for individuals is inherently wrong, then it only makes sense to uphold voting results throughout the life of the parliament until a new vote is held. Thus, the most accurate way to translate the wishes of the electorate is to maintain the party representation in the proportion that the voters established.
The free agency model is also open to considerable manipulation. It appears highly likely that, in 2002, some candidates ran on the Our Ukraine list while planning all along to defect to one of the oligarchic parties. Because the free agency system decreases transparency, it becomes more difficult for voters to assess exactly for whom they are voting when they select a particular party.
Uncertainties About the Imperative Mandate in Practice
While the analysis here indicates that the institution of the imperative mandate will provide a modest boost to building a functioning parliament, there are dangers as well. As in other areas, the most significant danger comes from an aspect of the Ukrainian system that deviates from our normal assumptions about how these institutions work.
Some in Ukraine have stated the fear that the imperative mandate will turn party leaders into potentates with few checks on their power. This is a real danger because the checks on party leaders' power that exist in many other countries do not often prevail in Ukraine. In particular, Ukrainian parties, because they are elite-based rather than mass-based, do not have an internal democratic mechanism to determine party policy.
As noted in the previous chapter, many Ukrainian parties are built around a single powerful and prominent individual. Very few of them have the sort of party rules that allow the "rank and file" to select the leader, or to eject the leader if he or she displeases them. While this varies from party to party, in general, internal accountability and democracy in Ukrainian parties is low. If the imperative mandate were highly effective, the party leader would have very strong levers over his or her deputies' votes, but the deputies would have little ability to influence the overall position of the party. In normal times, this would not be a major problem, but when a particularly authoritarian or corrupt party leader emerges, it would be very difficult to do anything about it. And while the potential for bribery of individual party members to change factions officially would be largely eliminated, the potential for bribery of party leaders who can deliver an entire bloc of votes would correspondingly increase. However, as noted above, this fear is unlikely to be realized. The imperative mandate will likely not confer such extensive power on party leaders. Indeed, they may continue to be very weak.
The broader point is that fixing one part of the system will lead to increased pressure on another part. While the introduction of the imperative mandate will be a step forward, it will likely result in a much greater focus on the internal decision-making procedures of parties. Some unforeseen difficulties will have to be overcome before the system works as smoothly as it does in most Western countries. Finally, lest we become too optimistic, we should recall that even in those countries where the system runs well, there is no guarantee against corruption or powerful party leaders.
Conclusion
This chapter has shown that a set of rules that is almost universally ignored in research on party systems has had an important effect on party fragmentation in Ukraine. Party formation and parliamentary performance cannot be explained simply by the electoral system, as powerful as that factor is. Factors "above" that level, as discussed in Chapter Six, and factors "below" that level, as emphasized in this chapter, also have an important effect.
In a variety of ways, the rules by which the Ukrainian parliament conducts its business have undermined its ability to pass legislation. They do this indirectly by undermining party cohesion, and directly by facilitating obstruction. Moreover, certain aspects of the rules substantially undermine the ability of the voters to monitor their elected representatives, although the worst of these, secret voting, has already been abandoned.
Revising the parliamentary rules of procedure will not, by itself, fix the problems with the parliament or with the overall institutional situation in Ukraine. Some measures, such as requiring only a majority of those present to pass legislation, would be an immediate improvement. The introduction of the imperative mandate for party list seats will almost certainly improve party cohesion, but only to the extent that parties constitute significant electoral resources for politicians. While the problem of "disposable parties" will remain, the combination of the fully proportional electoral law and the imperative mandate should go some way toward strengthening parties and making them more enduring.
The combination of the 1998 constitutional ruling allowing members complete freedom in forming new factions with the earlier decision to establish the minimum faction size at fourteen members created a situation where there were very low disincentives to fragmenting parties. Under a complete PR system with the imperative mandate, this problem will become irrelevant, because the link between electoral parties and parliamentary models will become much tighter.
The process of institutional reform in Ukraine will not be a simple quick fix, whereby one key aspect of the system is changed and everything else falls into place. In that sense, much of the advice proffered by Western experts over the years has been too simple. Instead, reform plans must consider the complexity of the political institutions and the natural tendency for politicians to seek ways around measures that constrain them. As we will see in the next chapter, Ukrainian politicians have been very adept at this.
Notes 1. For an introductory overview, see Walter J. Oleszek, Congressional Procedures and the Policy Process, 6th ed. (Washington, DC: Congressional Quarterly, 2003).
2. See Michael Laver and Kenneth R. Benoit, "The Evolution of Party Systems between Elections," American Journal of Political Science 47, no. 2 (April 2003): 215-33. Laver and Benoit see the incentives to defect (and for parties to accept defectors) as driven solely by electoral considerations, not parliamentary rules (216-18).
3. Giovanni Sartori, Comparative Constitutional Engineering, 2d ed. (New York: New York University Press, 1997), 177. Sartori points out that undisciplined parties are inherently more problematic for parliamentary systems than for presidential systems, because parliamentary systems have no fallback when there is no majority, whereas presidential systems have some ability to govern even in the absence of a majority.
4. Kenneth A. Shepsle and Barry R. Weingast, "Positive Theories of Congressional Institutions," in Positive Theories of Congressional Institutions, ed. Shepsle and Weingast (Ann Arbor: University of Michigan Press, 1995), 5-35.
5. Michel Duverger, "Duverger's Law: Forty Years Later," in Electoral Laws and Their Political Consequences, ed. Bernard Grofman and Arend Lijphart (New York: Agathon Press, 1986), 81.
6. '"For Our Single Ukraine': Hard Pre-election Blocking," Ukrainian Center for Independent Political Research (UCIPR) Research Update, November 13, 2001.
7. Andrew Wilson, "Ukraine's 2002 Elections: Less Fraud, More Virtuality," £c«f European Constitutional Review (Summer 2002): 93. www.Pravda.com.ua/720620-fraction-new. Accessed June 20, 2002.
8. A similar phenomenon takes place in very rare cases and on a very small scale in the U.S. Congress, when an independent is allowed to "caucus" with one major party or the other, and hence to avoid being completely shut out of committee work.
9. Constitutional Court Decision N17-rp/98, December 3,1998.
10. The effect of parliamentary rules on party systems has received very little attention in the literature. However, rules are used to explain a wide variety of outcomes within a given legislature, and thus have received increasing attention by the "second generation" of scholars of the U.S. Congress. See Shepsle and Weingast, "Positive Theories of Congressional Institutions," 7.
11. Radio Free Europe/Radio Liberty, Daily Digest, December 17,1999.
12. Interviews in Kyiv, October 2003.
13. Sarah Whitmore, "Fragmentation or Consolidation: Parties in Ukraine's Parliament," University of Birmingham, Research Papers in Russian and East European Studies (2002): 28.
14. Erik Herron quantifies the relative influence of policy versus electoral and party-based motivations for defections from factions in the 1998-2002 parliament. See Erik Herron, "Causes and Consequences of Fluid Faction Membership in Ukraine," Europe-Asia Studies 54, no. 4 (2002): 625-39.
15. On the role of personality clashes in party coalescence, see Michael Laver and Norman Schofield, Multiparty Government: The Politics of Coalition in Europe (Oxford: Oxford University Press, 1990), 199. That this occurs in Ukraine is confirmed by interviews conducted with members of the Party of Reforms and Order Lviv regional organization, May 12,1999.
16. George Tsebelis, Nested Games: Rational Choice in Comparative Politics (Berkeley: University of California Press, 1990), 190.
17. See Vladimir Katzman, "Kapitalisty, kupite sebe po Kommunistu," Zerkalo Nedeli, April 18-24, 1998, p. 1.
18. Radio Free Europe/Radio Liberty (RFE/RL), Newsline 4, no. 14, Part II, January 20, 2000.
19. The Ukrainian nongovernmental organization Lab F-4 compiles all roll-call votes, and performs a variety of analyses of the data. But since 2000, there has been no readily available listing of parliamentary voting records.
20. Sarah Whitmore, who has spent considerable time observing the Rada firsthand, reports that both attendance and party discipline increased following the adoption of roll-call voting. See "Fragmentation or Consolidation," 23.
21. "Political tourism" is the popular term in Ukraine for the tendency of deputies to change factions.
22. The best explanation that I can imagine for this rule is that it was instituted to prevent the parliament from being rapidly called into session to pass legislation with a narrow selection of legislators. In most systems, that possibility is ruled out by strict rules concerning the convening of parliament and by quorum requirements. In fact, Ukraine's parliament has laid out in the rules a very clear schedule for when "plenary" or voting sessions will take place and when "working sessions" will take place. It is not clear that the 226 vote requirement serves any useful purpose.
23. Personal communication from Taras Kuzio, August 5,2006.
24. "'Nasha Ukraina' proty 'Mihratsii' deputativ," Courier.com.ua, December 12, 2002, at www.courier.com.ua. Accessed December 20,2002.
25. Ukrainska Pravda, August 7,2006, at www.pravda.com.ua/en/news_print/2006/ 8/7/6027.htm. Accessed August 15,2006.