Why being the largest party matters (and why it doesn't)

Even as the make up of New Zealand's new coalition government was finally announced, media questioning of the leaders of the major parties reverted back to the narrative of 'moral authority' to form a government. That narrative is based on the claim that the party with the largest share of the popular vote has some sort of right - you might call it 'first dibs' - to seek to form a government with other parties.

That claim is fundamentally incorrect, and by association so is the over-arching narrative that the news media pushed so hard. A number of informed commentators have already made this point in clear terms, but the persistent reliance on this narrative by the news media means that a more detailed analysis might be beneficial.

Complicating matters, I think, is that there are clear political advantages to being the largest party after an election. These advantages ought to be distinguished from constitutional claims about how a government can best be formed. Failing to observe this important distinction is, I think, the key reason the New Zealand news media got this issue so fundamentally and consistently wrong.

Why being the largest party matters

Under our system of government, the basic rule is that the government must command the support of a majority of elected representatives in the House. When coupled with an MMP voting system, this often means that it will take more than one party to form a government as it is fiendishly difficult for a single party to capture a majority of votes from the voting public. This means that the largest party is likely to be a 'minority party' in the sense that it only has the support of a minority of members of the House.

Even so, there are a number of political advantages that come with being the largest party.

First, being the largest party means that you have less ground to make up to get over the magic 50% line than any other party. If making up that ground is a matter of one or two votes in the House, then the chances of that largest party being able to form a government will usually be quite high.

Second, being the largest party can mean that you need to work with fewer other parties in order to secure the required level of support. We saw this play out in this last round of coalition negotiations. The largest party, National, had the ability to form a government with just the support of New Zealand First, whereas the second largest, Labour, needed the support of two parties - New Zealand First and the Greens. There would be a range of circumstances in which it is easier to form a government by negotiating with only one party rather than two.

Third, being the largest party might mean that you have more options to form a government. Again, we saw this play out (to a hypothetical extent, at least) in this last round of coalition negotiations. National could have formed a government with the support of either New Zealand First or the Greens, whereas Labour required the support of both New Zealand First and the Greens. National could even have formed a government if New Zealand First had abstained from voting, as its share of the vote was larger than Labour and the Greens combined. Having more options available should, in theory, make it easier to find the political compromise that allows a government to be formed.

After the election results were finalised, National was the largest party in Parliament and had all of these political advantages.

Why being the largest party doesn't matter

Despite these political advantages, there is no constitutional imperative that the largest party should be part of any government. It is up to the largest party to turn any political advantages it may have into a constitutional result in its favour. The failure of this to happen after the election in September does not provide evidence of a constitutional problem in New Zealand. In fact, it might be evidence of exactly the opposite.

One feature of MMP, as already mentioned, is that it is very difficult for any political party to govern alone. This is built into its design. Single-party government under the former FFP system conferred an enormous amount of power on the winner of an election, especially in the absence of constitutional checks and balances found in other advanced democracies. MMP addresses this issue in part by requiring the (invariably two or more) parties in government to compromise. Power is diffused among more players, who see themselves account to distinct (if overlapping) constituencies, and the excesses of absolute power are minimised.

It would undermine this logic if any party - the largest, the most popular, the previous government - could claim some sort of 'moral authority' to govern. Any belief that the largest party should be insulated from the ability to find support from a majority of the members of the House is therefore not only misplaced but harmful to the way our democracy is supposed to operate. It's an example of 'the usual rules don't apply to me', and that's never a constitutionally valid position to adopt.

Why the media got it wrong

In a democracy we should have a high level of trust in the media to report on constitutional and political issues accurately. On this issue, they largely didn't. Why not?

A cynical answer might be that they just didn't care. The narrative of a 'moral authority' to govern makes great copy even if totally inaccurate. It provides an explanation for how the individual players might be approaching negotiations in the absence of other evidence, so at least there is something to report. It is also an easy way to manufacture some political controversy. As it turned out the largest party didn't get to form a government this time around, and running the 'moral authority' claim provides a counter-narrative that generates clicks and talkback callers.

A more sympathetic answer might be that the issues is a subtle one, and the news media isn't adept at drawing distinctions between political and constitutional questions. As the largest party National made good use of the political tools at its disposal in seeking to form a new government, and of course it is allowed to do so. It is then only a short step from reporting on negotiations and the statements of the various players to draw (incorrect) conclusions as to the constitutional implications. Despite their best efforts, in other words, the news media simply got it wrong.

Either way, it would be a useful step for the news media to engage with experts on these issues before taking a position on issues of constitutional significance. There are plenty of these experts around, and if my twitter feed is anything to go by they are more than willing to talk. In a modern democracy like ours there is really no excuse for poor quality news reporting on political and constitutional issues. Now that a new government is about to take office, let's hope we can look forward to 3 years where the political news media really steps up its game.

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