Government in Opposition: What Happens if McCain Sweeps Obama, Part II

by David Fontana

In my last post, I talked about the current and common technologies of the separation of powers, which focus on apportioning authority among winners of elections, or granting powers to losers of elections (as losers). In this post, I will discuss the emerging trend in the foundational public law commitments of many democracies to grant the power to losers of elections to control parts of government—that is, for losers to act as winners.

This idea of “government in opposition” has taken its shape in all three of the major branches of government that constitutionalism has recognized: legislative, executive and judicial.

In the legislative branch, in many countries the chairpersons of committees are allocated proportionality, rather than the majority coalition or party occupying all of the committee chair positions (as is done in the United States). This is the case in countries like Portugal; in other countries (e.g. Britain, Germany, Slovakia, and others), while chair positions are not allocated precisely proportionality, there are some assurances or strategies to ensure that a sufficient number of (usually important) committee positions are assigned to members of the minority party. Many minority parties, even if they are not permitted to chair a committee, have the power to compel or subpoena certain information (we have a procedure like this in the United States called the Seven-Member Rule). In several countries (Britain, Canada, and others), the minority party even controls the legislature and all of its proceedings for a certain number of days per session. In all of these ways, the losing party or coalition of parties in the legislature that form the opposition have the chance to exercise majority power—-to chair committees, to control agendas, and so on.

Similar structures have also prevailed in the executive and judicial branch. In a range of countries (South Africa at one point, Lebanon, Switzerland), minority parties are guaranteed a certain number of cabinet positions and therefore to issue rules and regulations and exercise the full powers of cabinet members. Similarly, in many countries minority parties are permitted to make a certain number of judicial appointments, or are permitted to initiate lawsuits challenging the constitutionality of laws (this procedure is used often in France and Germany).

This is what government in opposition means; giving the power to losers to act as winners. But how has this system worked? Is it a welcome advance in the constitutional design of separation of powers? Does it promote stability? Does it reduce policy innovation?

Those questions and more will be addressed in my next post, when I turn to a more evaluative discussion of government in opposition.

http://opiniojuris.org/2008/04/01/government-in-opposition-what-happens-if-mccain-sweeps-obama-part-ii/

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