THE BLOG
10/08/2014 06:15 pm ET Updated Dec 08, 2014

Would America's Founding Fathers Consider Hong Kong's Election Plan Democratic?

Getty/Gilbert Stuart/WorldPost Illustration

As the "umbrella" protestors sit down with Hong Kong authorities to discuss the fairness of the proposed plan for electing a Chief Executive in 2017, one wonders how others who have designed democratic institutions might look upon this controversy.

In particular, how would James Madison, long hailed as the father of the American Constitution, assess the proposed revisions to Hong Kong's Basic Law?

According to the plan, a Nominating Committee of 1200 is to select the candidates who will be eligible to stand for election as Hong Kong Chief Executive in 2017. Some charge that this makes the proposals undemocratic, even if the winning candidate is to be elected based on a universal suffrage and "one person, one vote."

The American Chief Executive has never been selected by a direct popular vote. The US President is elected by the vote of an Electoral College - originally numbering only 85 -- whose members were originally selected by state legislatures. Alexander Hamilton, Madison's co-author of the famous Federalist Papers, insisted that entrusting the choice of a Chief Executive to a select group would help avoid the "tumult and disorder" that might otherwise "convulse the community" if the President were elected directly. And so, Hamilton argued, "a small number of persons selected by their fellow citizens" possessing "information and discernment" ought to make the decision.

The Electoral College is often compared to College of Cardinals that selects the Pope of the Roman Catholic Church. Like the Cardinals, the Federalist's idea was that the most knowledgeable and public-spirited citizens from each state should select the President based solely on merit.

In addition, members of the US Senate were originally chosen for six-year terms not by popular vote but, once again, by state legislatures. As with the Electoral College, it was hoped that the Senate would represent "the cool and deliberate sense of the community, and resist the public's own temporary errors and delusions," which might more readily be felt in the directly elected House of Representatives.

So what's wrong with the proposed nominating system in Hong Kong?

One immediate response will be that the American Founders rejected the idea of direct democracy in favor of a republic: government was to be conducted entirely by representatives of the people.

In defending the US Constitution of 1787, Madison boasted that it was based on "the total exclusion of the people in their collective capacity" from any direct participation in governing. We should not, however, be misled by terminology. Nowadays, we tend to agree with Madison in rejecting direct democracy in favor of constitutional democracy, or a Madisonian republic.

When the protesters in Hong Kong complain that the nominating system is undemocratic, they are not insisting that ordinary citizens should make political decisions directly. They are asserting, rather, that the nomination of candidates for Chief Executive office is not sufficiently under popular control, and this renders the method of selection undemocratic. Are they right? What would Madison say?

In the Federalist #39Madison was very clear and unequivocal: "we may define a republic to be ... a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior." And he immediately continued,

It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic.

Madison insisted that insofar as power is exercised "over the great body of people" by a "small body of hereditary nobles," or a privileged group not directly or indirectly accountable to the great body of people, the system is not "republican," or as we would say, democratic.

And yet, it might be observed that tremendous power is exercised in the US by wholly unelected bodies such as the Supreme Court and the Federal Reserve Board of Governors. Indeed, these unelected officials may overrule or defy the wishes of our elected officials.

True enough, the power of such institutions, deliberately removed from direct electoral accountability to the electorate, is central to constitutional democracy. But these institutions fully comply with Madison's republican - or constitutional democratic--principles. Two basic facts are crucial. First, Supreme Court Justices are selected by the people's representatives, and so we can properly say, by the people indirectly. Supreme Court Justices are selected by the President and confirmed by the Senate. The same is true for Governors of the Federal Reserve Board.

In addition, while these institutions are not accountable periodically in direct elections, they are held to high standards of reasoned public justification. Supreme Court decisions are accompanied by elaborate opinions setting out the reasons and evidence that support what is being decided. These are scrutinized and debated by legal elites, elected officials, journalists operating with guarantees of press freedom, and ordinary citizens. The same is true, in different form, for the Federal Reserve: the Chairman of the Board of Governors testifies regularly before Congress, and the justifications for Fed decisions are closely scrutinized by economists, journalists, members of Congress, and ordinary citizens.

THE HONG KONG NOMINATING COMMITTEE

In Hong Kong, it appears that the size and composition of the proposed Nominating Committee will closely follow that of the existing 1200 member Election Committee. Membership will be determined in substantial part by corporate voting in constituencies defined by industry groupings: the Education sector receives 30 seats elected by all teachers, numbering over 80,000. But, the Fisheries and Agriculture Sector receives 60 seats with only 4,000 people in the industry, according to Dr. Leung Kai Chi, and among those, only 158 government-approved individuals are eligible for election to a seat. In short, Dr. Chi reports, of 3.5 million registered voters who could elect their representatives in the Hong Kong legislature and the District Council, less than 240,000 are eligible to elect members of the Election Committee. Over 3 million Hong Kong people are disenfranchised when it comes to selecting the Election Committee.

MADISON WITH THE PROTESTORS

In these respects, and insofar as the Nominating Committee resembles the current Election Committee, it appears that Madison is on the side of the protesters. The composition of the Nominating Committee appears to represent what Madison referred to, in Federalist #39, as an "inconsiderable proportion, or a favored class" of the electorate, rather than "the great body of the people." I leave aside the further question of how much real independence the members of the Election Committee actually have.

No matter how wide the franchise and how hotly contested the election, if the eligible candidates are vetted on an undemocratic basis then the election is not democratic.

And what about Hong Kong law? Article 45 of Hong Kong's Basic Law specifies that:

The method for selecting the Chief Executive shall be specified in the light of the actual situation in Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.

It would appear that the protesters are right to argue that the Nominating Committee is unlikely to be "broadly representative... in accordance with democratic procedures." And Madison, it seems, would agree.

Circumstances in mainland China and Hong Kong are far removed from the world that James Madison knew, and the feasibility of a transition to full democracy is difficult to evaluate, given the unusual relation between Hong Kong and the central government. The Basic Law also refers to "gradual and orderly progress" toward "the ultimate aim" of selection based on "universal suffrage," "broadly representative" nomination procedures, and democracy. I am not, however, qualified to judge whether the proposed reforms represent a good faith effort to make progress toward democracy "in light of the actual situation in Hong Kong."

Madison was a revolutionary, but he also believed in public order. It is possible that the reform proposals are, as Lawrence J. Lau and Ayesha Macpherson argue elsewhere in The WorldPost, reasonably regarded as the "first step in making the half-full glass fuller."

One final point. Recent research suggests that in the US, policymaking is so "dominated by powerful business organizations and a small number of affluent Americans" that "America's claims to being a democratic society are seriously threatened." If the ideal of a Madisonian republic can inspire democracy activists abroad, it should also stimulate Americans to get serious about the sorry state of their own democracy.