Party defection and the legal rules for nonpartisan members of regional parliaments. Can, and should, the law sanction political disloyalty?

Abstract

This paper analyzes the treatment that the Spanish Law gives to the political defection, a phenomenon that has been described as pathological. Not attached political representatives and defectors are not overlapping terms. The word defector involves a subjective element of political disloyalty that doesn’t appear in the not attached representative. Article 73.3 LBRL regulates the figure of not attached representatives, but in such confusing terms that it would be reformulated. In relation with defectors, to eradicate this pathology the unique form is to strip them of his public position. This deprivation requires a constitutional reform, and the final burial of the classical theory of representation, assumed by the Spanish Constitutional Court. The question is whether the Law should punish the political defection whereas the political parties are not sincerely determined to end up with it. Political parties influence strongly the freedom of the elected representatives, trough the party discipline. The author questions whether it is time to increase the party’s control over the elected, or, on the contrary, it is the moment of weakening the party discipline, in order to enable a more direct and fluid relation between the elector and the elected representative.