Madhav Khosla is a rising star in comparative constitutional law. Just saw this post he did last week at Balkinization, with Milan Vaishnav, about an article of theirs at the intersection of elections and governance. The article wrestles with how democracies ought to deal with anti-defection laws — laws that prohibit elected members of parliaments from changing their party affiliation while in office:

The recovery of representative institutions—and the promise of legislation—is a central theme in studies on constitutional democracy. Even though much writing underscores the shift in power away from the legislature towards courts and the executive, relatively less attention has been paid to the internal workings and practices of the legislative branch. In a new article, we focus on a somewhat remarkable feature of several parliamentary democracies—namely, legal prohibitions (“anti-defection laws”) that curb, or ban, the practice of floor crossing by a legislator during their term in office, and that, in their most extreme form, prevent legislators from voting as they wish. The countries that have experimented with such laws are diverse, including India, Israel, Pakistan, South Africa, and New Zealand.

One way to think about anti-defection laws that limit the independence of legislators is through the lens of political fragmentation. There is widespread appreciation of the risks that political fragmentation poses to democracy, not least by disabling party leaders from enforcing discipline. This burgeoning literature is clear that political fragmentation threatens democratic government. In aggregate, fragmentation is thought to hamstring party leaders, who cannot enforce party discipline or control factions. Anti-defection laws promise to mitigate fragmentation by empowering party elites.

In parliamentary democracies, floor crossing can have devastating consequences. With no separation between the legislature and the executive as in presidential systems, party switching can bring down governments, often forcing fresh elections. But, in attempting to ensure government stability, anti-defection laws simultaneously subvert the character of the legislature. In the case of India, which has among the most extreme version of an anti-defection law, a legislator must follow the party dicta while voting on a bill or else suffer disqualification, from their party as well as the legislature. As such, their yes-or-no vote is a foregone conclusion based upon the decision of the party leaders, and various features that we associate with the act of legislation and the representative chamber—not least the value of deliberation and debate—are all irrelevant to the final vote that is cast. Notice the distance between this reality and Waldron’s foundational observation that legislators “do not just assemble and vote,” but rather “deliberate.”