Under the guise of a projected Supreme Court reference on Senate reform, Prime Minister Stephen Harper may be about to bury his party’s grand plan until at least the next federal election and, possibly, for all time.For American readers, Canada's system allows the Government to ask the Supreme Court "Do you think this would be constitutional?" in advance of actually passing a bill or taking some action. For Canadian readers, the US system doesn't allow this for reasons that as a non-lawyer I don't claim to understand.
Anyway, this is a huge relief. I wrote about Harper's plans last year and explained what's wrong with appointing "elected" Senators:
Currently, only Alberta has held its own unrecognized Senate elections, and Harper actually did appoint one of Alberta's "elected" Senators. A couple other provinces out west are considering holding elections too. This is exactly what Harper is hoping for. If even 3 or 4 provinces start electing Senators, that could be enough to fundamentally change the nature of the Senate as an institution. Once you have a mass of "elected" Senators in the body, operating under term limits, they're going to start trying to legislate, amend bills and defeat bills. They won't feel constrained by the chamber's lack of democratic legitimacy, because they'll claim they were elected.My take was that this was a way to create a self-fulfilling prophecy of Senate reform by fostering a democratic legitimacy crisis in the Red Chamber. I went on in that piece to note that while one of the typical Western beefs with Ottawa is being underrepresented in the House of Commons (which is mostly false) in the Senate the four Western provinces actually are dramatically under weight by their population. So it surprised me that Harper's lot were willing to empower the chamber that empowers Quebec and the Atlantic so much to their expense. As it turns out, they're not actually willing to do that, back to Hebert:
What will the Senators who never won elections do? Some will join in the crusades of the elected peers, and others will try and stand aside, but the result will be a mess. What happens when the partially elected Senate defeats a House bill? The public reaction will almost certainly be in favour of electing the rest of them. However it plays out, the result will be to break the strong traditional prohibition on the Senate playing an activist role. Once this gets going, there won't be any way to stop it.
They (rightly) worry that giving the Senate the enhanced legitimacy of an elected house without making it more reflective of the demographics of the country only stands to enshrine Western Canada’s democratic deficit in Parliament.So I was wrong by underestimating the simple regional zero sum cynicism of conservativism. Well, I can live with that. I can also live with this bad Senate reform thing not happening. I'm glad Harper and co are chickening out, because I think their plan would have worked. Making political offices elected is one of those magic button solutions that voters leap at as a panacea to resolve whatever problems exist with corruption, indolence or incompetence in some government function. A few months of political wrangling where some half-elected Senate started mucking with House business would very quickly bring numbers up in favour of some variation of a triple-e senate plan. This really struck me as very similar to how the US 17th Amendment (requiring direct election of Senators) was passed. Actually, Hebert suggests another pretty basic reason Harper is backing away from empowering the Senate, he can't really control Conservative Senators:
“To the extent that the Senate becomes a more influential body — and that’s uncertain — but to the extent that it does, it would shift power into Atlantic Canada and away from the West,” [Canada West Foundation leader Roger] Gibbins explained in an interview earlier this year
The prime minister might well need backing from the Court to convince some of his own appointees to live up to their initial commitment to give up their Senate seats before they reach the current mandatory retirement age of 75.This didn't occur to me last year, but it makes perfect sense. Harper might be able to kick Senators out of the Conservative party and probably out of the Conservative Senate caucus, but if they have very lengthy terms and get to run for re-election as well established incumbents in province-wide elections, they'd make dangerous opponents to him. House members fear their party leaders because almost no House members have enough notoriety to win re-election on their own name as an independent candidate. Being kicked out of the party is to face almost certain defeat at the next election. A Senator who wins a big population province is potentially getting several million votes. S/he might be able to swing a Lieberman and stymie the party leadership. Comparatively, the Prime Minister will only have one riding's worth of voters, a few tens of thousands of votes directly for him/her. I can well imagine some Alberta Senator rejecting Harper's demands and claiming a stronger mandate to represent the wishes of Alberta Conservatives than Harper.
In this respect a triple-e Senate would be worse than the US system because at least in the US, the sitting President always has the largest direct democratic mandate (larger than any Senators at least). In Canada, it's theoretically possible for a Senator from Ontario or Quebec to have more votes than the ruling party got combined. In 2011, the Tories got 5.8 million votes total. Ontario has 9 million registered voters (5.5M actually showed up) and Quebec has 6M. It's not terribly likely, it would take some universally beloved figure to get that kind of support, but that the theoretical possibility even exists is reason enough to worry about cutting loose our 105 Senators to preen about the national stage without accountability to their parties.
Just eliminate the Senate. If it must exist, hobble it severely like the UK House of Lords. Make it responsible for issuing pointless proclamations, ratifying what goes on stamps and coins, and correcting spelling mistakes in legislation. Anything more makes Canada into a very bad copy of the US, with the worst features of both the Parliamentary and Presidential-Congressional systems. Neither orderly division of powers nor Responsible Government.