Weighing Vote Disparity in Japan’s Upper House

Efforts to correct vote disparity among House of Councillors regional constituencies have finally led to a reform. The Diet passed the bill to carry out the electoral reform of the House of Councillors on July 28.

The reform reduces the number of politicians elected from Miyagi, Nagano, and Niigata constituencies respectively from 4 to 2. It also merges Shimane and Tottori constituencies as well as Kochi and Tokushima constituencies to create new Shimane-Tottori and Kochi-Tokushima constituencies. Before the reform each of the four old constituencies that were merged elected 2 members of House of Councillors. Newly created constituencies respectively elect 2 members. In the meantime the reform newly assign 2 members to the following five constituencies: Hokkaido, Tokyo, Aichi, Hyogo, and Fukuoka.

As a result of the reform, the largest disparity among regional constituencies will be 2.97. The reform is still insufficient in terms of adjusting disparity among different regional constituencies because even after the reform huge disparity continues to exist.

It is, however, unprecedented as it merges two sets of prefectural constituencies into two new regional constituencies. One major source of huge disparity was how regional constituencies had been designed thus far. The basic unit of regional constituency was a prefecture. And, all regional constituencies had 2 seats secured at minimum. Even prefectures with small population were assigned 2 seats. Thus, the member of House of Councillors elected from small prefectures represented a small number of people while the member of House of Councillors elected from densely populated prefectures represented a large number of people, creating huge disparity among the value of vote across different prefectures. Merging small prefectures to create new constituencies had been long considered as one solution to the issue of vote disparity. Yet, it has been politically difficult to resort to this solution.

The series of Nippon.com articles on the “Importance of ‘One Person, One Vote’” looks at the wide disparity that now exists in the weight of one vote among upper house electoral districts. This article focuses on why this issue is important.

Gaping Disparities

Voting power can vary enormously depending on where one casts his or her ballot. The biggest inequality among prefectural constituencies existed between Hokkaidō, which had four upper house seats with 4.57 million voters, and Tottori, which claimed two seats but only 480,000 voters. There were thus 1.14 million voters per seat in Hokkaidō and only 240,000 in Tottori, giving Tottori voters 4.77 times more clout than their Hokkaidō counterparts.

It was under such circumstances that the July 2013 upper house election was held; a lawsuit was filed demanding that the results be nullified on the grounds that it violated Article 14 of the Constitution stipulating that all “people are equal under the law.” While the Supreme Court’s November 2014 decision did not go so far as to invalidate the results, it nonetheless stated that the election was held under “extremely unfair conditions” to the degree that it represented a “state of unconstitutionality.” It also called for fundamental reforms to correct the disparity through a reexamination of the current system under which each prefecture constitutes an electoral district.

Resistance to Reform

The Supreme Court had issued a similar ruling regarding the July 2010 House of Councillors election, when Tottori voters had five times more voting power than those in Kanagawa.

In this earlier ruling, too, the high court in effect called for reforms to the system of prefecture-based constituencies in order to rectify vote disparity. The Diet all but ignored the warning and made only patchwork changes, amending the Public Offices Election Law in November 2012 to reduce the number of seats in Fukushima and Gifu from four to two and to add two each to Kanagawa and Osaka, giving both eight. These changes merely narrowed the biggest disparity from 5-fold to 4.77. The Diet did promise in Article 3 of the amendment’s by-laws, though, that it would continue efforts to correct disparity by fundamentally reforming the electoral system before the next upper house election in 2016.

The upper house had been debating such reforms in accordance with the supplementary provisions since September 2013. The biggest obstacle to reforming the elected system was staunch opposition from upper house members of the ruling Liberal Democratic Party elected from the districts that were likely to become subject of mergers.

The Upper House’s Special Position

Why is the principle of “one person, one vote” so important in upper house elections? In a word, it is because the House of Councillors wields considerable power in the political process. This is an issue that must be examined from the viewpoint of the chamber’s position within Japan’s governance structure and the political role it has played in recent years.

Let me first discuss its institutional features. Japan has a parliamentary system of government, which generally has two characteristics.

The first is that the cabinet requires the confidence of the legislature, on the one hand, and that it has the right to dissolve that legislature, on the other. In other words, the prime minister is a member of parliament who has the support of a majority of legislators and who chooses his ministers in forming a cabinet. The legislature has the power to pass a motion of no confidence against the cabinet, while the cabinet has the power of dissolution.

Thus, under a parliamentary system, the executive and legislative branches are reliant on each other for their continuity. The intentions of the two branches usually concur, and the legislator who is named prime minister can be assumed to have the support of his or her legislative peers. Should the cabinet lose such support and be forced to resign, a different member who secures majority support will be named the new prime minister and form a new cabinet. If the legislature is dissolved, the prime minister will be chosen from the party or parties with a majority in the newly elected house.

Inasmuch as the executive branch can basically expect its policies to have the backing of the legislature, parliamentary democracy can be conceived of as a system designed to prevent government from coming to a standstill owing to a conflict between the executive and legislative branches.

Does this apply to Japan? Yes, if we consider the relationship between the cabinet and the House of Representatives. But the cabinet does not have such ties with the House of Councillors. The Constitution has no provisions requiring the prime minister to gain the support of a majority of upper house members. 

Precedence of the Lower House

Upper house legislators do participate in the selection of a prime minister, but when the decisions of the two houses are in conflict, the verdict of the lower house prevails. The upper house does not have the authority to submit a motion of no confidence, and the cabinet cannot dissolve the upper house, whose members are guaranteed six-year terms.

In short, the Constitution offers no guarantees that the cabinet will have the support of the upper house. How, then, does it seek to prevent political paralysis in case the cabinet and the upper house have divergent views?

One of the ways is by giving the lower house precedence when the two houses reach different conclusions. Since the opinion of the lower house and the cabinet are assumed to largely coincide, the cabinet, theoretically, should ultimately be able to push through its policies.

In actual practice, however, the precedence the lower house enjoys is often not enough to avert a stalemate.

This is because the priority given to the lower house applies only to such key decisions as the enactment of the state budget and approval of international treaties; for most other matters, the lower house has only marginal precedence, so an opposition-controlled upper house can stymie the cabinet’s policy initiatives with relative ease.

Overriding Upper House Rejection

The Constitution stipulates that bills passed by the lower house but rejected by the upper house may be enacted if the lower house again passes the bills with a two-thirds majority. This raises two problems. The first is that securing a two-thirds majority is very difficult, and the second is that the upper house is able to stall bills by using the 60-day limit it has to vote.

This 60-day rule can seriously disrupt government affairs when the bill is intended to extend a law that is about to expire or when a bill is submitted shortly before the close of a Diet session.

In case of a divided government, in which the ruling party or coalition does not have a majority in the upper house, the cabinet will be hard pressed to implement its policies in light of the limited precedence enjoyed by the lower house.

This was the situation faced by administrations in Japan between July 2007 and September 2009, as well as between July 2010 and July 2013. In the following I will recap the tactics the upper house used to thwart the enactment of the cabinet’s policies.

Obstructing the Naming of a New BOJ Governor

The first cabinet to find itself at the mercy of a recalcitrant upper house was that headed by Prime Minister Fukuda Yasuo and subsequently by Asō Tarō, both of whom were backed by the LDP-Kōmeitō coalition. The two parties claimed a two-thirds majority in the lower house, so they could enact legislation by repassing the bills even if they were opposed by the upper house. But each time the cabinet tried to get a bill passed, it found itself being stonewalled by the 60-day rule and stalling tactics employed by the Democratic Party of Japan and other opposition parties.

The Fukuda cabinet, for example, was unable to enact a series of tax reform bills before the provisional break in the gasoline tax rate expired at the end of March 2008. Likewise, the Asō cabinet tried to implement a ¥2 trillion economic stimulus package in the form of fixed-sum stipends following the financial crisis in autumn 2008 but met resistance by the opposition-controlled upper house, causing considerable payment delays.

Fukuda was also thwarted in his attempts to name a new Bank of Japan governor. The Bank of Japan Law stipulates that a successor nominated by the cabinet must be approved by both houses of the Diet, with no precedence being given to the lower house. The two candidates nominated by the Fukuda cabinet to replace Fukui Toshihiko, whose term of office was to expire in March 2009, were successively rejected by the DPJ and other opposition parties in the upper house, as a result of which the post of BOJ governor remained vacant for three weeks.

Growing Clout

In an ironic twist, the DPJ received a taste of its own medicine after knocking the LDP from power in the historic landslide victory in the August 2009 lower house election when the following July the House of Councillors came under the control of the now opposition LDP-Kōmeitō alliance. The DPJ and its coalition partner People’s New Party were short of a two-thirds majority in the lower house and were therefore unable to override the decision of the upper house to repass bills into law. Once again, the divided government produced political paralysis.

The Kan Naoto cabinet submitted a bill to extend the DPJ’s child allowance policy through fiscal 2011, but with no prospects for enactment due to upper house opposition, Kan had no choice but to withdraw the bill. Kan also struggled to enact a bill allowing the government to issue deficit-covering bonds, which he finally managed to do in exchange for his resignation as prime minister.

Kan’s successor, Noda Yoshihiko, was pressured into dissolving the lower house under disadvantageous conditions in order to secure LDP support for a bill on the integrated reforms of the social security and tax systems. As these examples show, the upper house has gained enough clout to influence the timing of lower house dissolution.

Rethinking the Role of the Upper House

This series of articles on the House of Councillors features three other papers focusing on the issue of vote-value disparities among upper house electoral districts.

In this paper, I have mainly discussed the consequences of a divided Diet since 2000. Of course, this was not the only time when the upper house was in opposition hands; earlier cases include the years soon after its establishment in 1947 through the mid-1950s, from the late 1980s to the early 1990s, and again in the late 1990s.

Oyama Reiko’s piece gives an overview of the role that the House of Councillors has played during the years under opposition control since 1989 and points out that coalition governments have now become the norm as a way securing an upper house majority.

Tadano Masahito delves into the voting inequality problem by arguing that the two houses of the Diet are essentially equal under Japan’s bicameral system and that the value of a vote in an upper house election should therefore be brought into balance. He concludes that as long as the “one person, one vote” rule is to be upheld, the overrepresentation of particular constituencies is unacceptable.

Tsuchiya Hideo, meanwhile, looks at the voting inequality issue by examining the history of Supreme Court rulings and the initiatives taken to date by the House of Councillors to rectify the state of unconstitutionality. While the top court had long been lenient regarding voting disparities in the upper house, it has recently begun taking a tougher stance. Tsuchiya introduces some of the efforts made in response to the Supreme Court’s call for drastic reform, including proposals by former upper house President Nishioka Takeo and former LDP Secretary General for upper house members Waki Masashi. Tsuchiya blames the failure to implement these reform plans on the unwillingness of LDP upper house members to recognize the need for an overhaul.

It is hoped that this series of articles will shed new light on voting inequalities in upper house elections and spur new thinking on the institutional role of Japan’s House of Councillors.

(Originally written in Japanese and published on June 12, 2015. Banner photo: LDP President Abe Shinzō, left, debates then Prime Minister Noda Yoshihiko, right, who, during the session, made a surprise announcement that he would dissolve the Diet. Photograph taken on November 14, 2012; @ Jiji.)