The Senate Scandal's Connection to Harper's Worst Acts

Reading this excellent piece by Shawn Whitney on how the left shouldn't assume great policy will automatically come from the downfall of either Harper or Ford, the author speaks to my own discomfort with the Senate expenses scandal:

At the federal level, Stephen Harper’s troubles have nothing to do with his murder of thousands of Afghans in support of NATO’s attempt to subdue that country. It has nothing to do with his shutdown of the national daycare plan that Paul Martin put in place to try and save his own skin, or his scuppering of the deal he made with first nations people. [...]

It has nothing to do with his unbridled support for big oil and their enthusiastic destruction of the environment of Alberta and, indeed, the whole world with the tar sands. Nothing to do with his support for fracking to recover natural gas.

My own list of Harper's worst misdeeds relate to his contempt for democracy, and specifically the systemic safeguards which help guarantee it continues.  A government which got itself re-elected after making history for being held in actual contempt of Parliament, a leader who authorized an attempt to bribe an independent MP to vote against the previous minority Liberal government's budget, a group that actually gave its MPs a manual on how to disrupt and confuse committee hearings, and then used the ensuing rancor to break at least the spirit of its own fixed election dates law and call a snap election at a politically opportune moment.

As Whitney does, I find it very easy to keep listing these things. Really, the point is that nailing Harper and his crew vicious ideologues over $90,000 in misclaimed expenses feels a lot like putting Al Capone in prison for tax evasion.  Sure, it might get the job done, but it feels hollow and unsatisfying.

Casuistry Is The Connection

My thinking has changed a bit in considering Duffy's claims that the PMO and Senate Majority leader pre-cleared his expenses as being compliant with the rules.  This is entirely believable, and has been signature of Harper's lot their entire time in power: They stretch the meaning of every rule & law to their own benefit well past the point of credulity.  In this case, it is the Senate's internal interpretation of the Constitution's Senatorial residency requirements which external auditor Deloitte found to be "unclear."  It's easy to see what Harper's government did with these "unclear" rules:  Interpret them maximally to their own needs of the moment.  This is what they do with everything else, and they have typically gotten away with it.

The examples of this abound:

• In-And-Out: Breaking Canada's election financing laws using blatantly contrived specious reasoning about the interpretation of party spending.
• Coaltion with traitors: Rabble rousing and treason-baiting over the 2008 opposition coaltion deal for including confidence vote support of the BQ when Harper himself had obviously cut a similar deal with the BQ when in the opposition.
• Using the ordinarily routine practice of proroguation in quiet times to save his premiership from that same opposition deal in the face of a signed letter by a majority of MPs indicating their intent to vote non-confidence against his government.
• In the case of the previously mentioned contempt of Parliament finding, I'm not even sure Harper's crew bothered with any rationalization for refusing to provide the documents required, they just judged (correctly) that they could get away with this, and it even suited their purposes for the opposition to force an election.
• They did get slightly burned over Bev Oda having a non-political staff recommendation falsely reversed to give her cover in refusing funding to an organization the Conservatives just don't like. Harper just rode this out with characteristic arrogance.  In a preview of the current troubles, Oda would eventually fall to a personal expenses scandal over charging, among other things a $16 glass of orange juice.

It isn't a coincidence that it is Duffy & Wallin in trouble for expenses either, since their very appointments were constitutionally ludicrous to begin with. Of course Duffy & Wallin needed to rack up unusual travel & housing expenses: they don't actually reside in the provinces they were supposed to represent.  Harper wanted these two famous, charismatic and fairly popular media personalities on his team, working the speech and fundraising circuits and employed his typical level of intellectual sophistry to re-interpret some very clear law so that "residency" doesn't mean what it obviously means to most people by any plain language interpretation. Same link on the actual constitutional requirements for Senators:  

One requirement is that the Senator must own $4,000 worth of property in the province he/she represents.

Another and more basic requirement is that a Senator be a resident in the province he/she represents.

I'd bet the Senate has attempted in its arcane and ordinarily publicly ignored way come up with some set of guidance around what "resident" means to cover some uninteresting snowbird Senators who probably spent significant periods of the year in Florida or other sunny climates. Let's say it is even somehow true that Duffy's living arrangement somehow meets these loose rules - Harper tried to, as usual, drive a barge through this loophole and has ultimately been tripped up on a combination of his own contempt for laws that inhibit him, and the very plain and obvious meaning of the clause in the Constitution.  Nobody cares what the Senate previously decided "resident" means because we know it cannot possibly legitimately include how little Duffy & Wallin were actually "residing" in their Senatorial provinces.  Harper's government got caught in a trap of their own deceit, and their only shield would be the self-serving rules of an undemocratic and poorly respected institution.

This is the core linkage of l'affaire du Sénat to this government's most grievous crimes: Right from the top Harper has set the example of self serving linguistic and legal casuistry.  On arcane but vital matters of democratic institutional survival, he has regularly gotten away with it. When combined with plain old ripping off the treasury, it finally caught up to them, and him.  All the rest, Duffy's inability and unwillingness to repay out of his own pocket, the crooked deal with Wright, the need for Mulcair's excellent prosecutorial style of QP jousting falls from this core ethical failing of Harper's ministry.  They too, like Bush's wrecking crew thought that they can just act and create their own reality no matter what we say.  This, finally, appears to be a wall such gall cannot breach.

Consider clicking here to vote for this post on Progressive Bloggers.

No, The Senate is Not a Worthwhile Check on the Prime Minister

Far better ones exist.  I really don't get where this idea comes from.  Can you name anything bad, ever that our Senate has prevented?  Did it prevent Trudeau's Martial Law?  Did it stop the internment of Japanese Canadians?  Racist laws like head taxes on Chinese immigrants?  Aboriginal residential schools?  The death penalty? 

You might say that the Senate needs reforms and election of its members to be more effective as a check on tyranny, but the US Senate has an even worse record of preventing injustice and atrocity, in fact spending much more time blocking laws to stop things like lynching and segregation than it did to block anything truly bad.  Even more recently the US Senate was more supportive than the US House of the Bush era abuses, from the Patriot Act, the Iraq War authorization, to the permanent detention without trial of many people at Gitmo. 

A Canadian elected Senate would still be controlled by the party leaders via our strict party discipline system. Elected Senators would have to stand for re-election as independents if they flout their party leader.  They would be relegated to back-bench opposition irrelevancy.  If the PM has a majority in the House, chances are s/he has a majority in the Senate (think how province-wide Senatorial elections would have turned out in 2011).  So even the hope that we have split government in each chamber will not tend to happen. In fact, if things are bad enough that a leader's own legislators are turning, House members are far more powerful in that they can trigger the Prime Minister's resignation by joining the opposition to defeat the government in a confidence vote.  Senators could block bills, but House members can force new elections.

The worst injustices perpetrated by governments tend to be popular in their time, which means politicians are a poor safeguard.  The proven, far more effective safeguard is the Courts, enforcing our Constitutionally embedded Charter of Rights.  Further, Canada, as a federal society leaves significant powers (including administration of justices and most criminal code enforcement) in the hands of the provinces.  Throw in Quebec being never more than 3 or 4 steps from independence (and Alberta not far behind it sometimes seems) and you really have a hard time concocting a viable "runaway Prime Minister" scenario with or without the Senate.

Finally, if by "tyranny" you literally fear Harper setting himself up as a literal dictator via some kind of "Enabling Act" - let's take a closer look at Hitler's rise.  When Weimar Germany's legislature passed the Enabling Act, Hitler had SA thugs all over the building, and had already banned a major opposition party, the Communists, so none of their members were even present to vote against it.  There's simply no basis for believing a Weimar Senate, if it had existed, would have not been equally coerced by intimidation and politics of the day to pass the thing.  Hitler had already seized defacto power.  The real lesson of dictatorships is that by the time the dictator gets around to formalizing powers in actual written laws, it's already too late for legislative opposition to stop him.  You can tell a similar story for the rise of Mussolini, whose rise to power begins by leading a fascist black-shirt army on a march to Rome.

Two thirds of the world's democracies do fine without upper houses.  Canada can too.  Meanwhile Senates often prove unable to prevent (or even contribute to) slides into dictatorship such as in Chile or Argentina.  Voters will have to remove Mr. Harper (assuming his own party doesn't do it first), and if they're waiting for the Senate to do something effective to block him, they'll be waiting a long time. 

How Difficult is Senate Abolition? A Law Professor Responds

Yesterday I came across this piece in the Hill Times that was quite negative on the constitutional prospects for Senate abolition.  A couple different experts were quoted in the piece, and a couple elements of what they're quoted as saying weren't clear to me so I wrote to one of them, Bruce Ryder of Osgoode Hall Law School.  He was gracious enough to write back, quite quickly.  My questions and his answers follow.

Before I start, a quick primer on amending the Canadian Constitution, there are several sections of the 1982 Constitution referenced, here's what they roughly mean:

s38 - This is the "default" amendment formula, requiring approval of the federal Parliament, and the legislatures of seven provinces that collectively have at least 50% of the Canadian population.
s41 - Certain parts of the Constitution are deemed as requiring an even higher bar for approval, all provincial legislatures plus the federal Parliament must approve.
s43 - Amendments that basically only affect 1 or 2 provinces can be enacted by approval of the federal Parliament and the legislatures of the affected province(s).
s44 - Amendments that only affect the federal Parliament, and aren't specifically listed as requiring s38 or s41 can be enacted by the federal Parliament on its own.  s42 in particular sets limits on when this can be used by requiring s38 for a number of things.
s47 - This isn't an amendment formula but stipulates that for amendments under s38, s41 and s43, if the Senate fails to pass an amendment already passed by the House of Commons, the House can just re-pass the same amendment after six months and bypass the need for Senate approval.

On to the questions:
---------------------------------------------------------

[D] I am curious about some things you are quoted saying in a recent article in the Hill Times:

1) You state clearly that consent of the Senate would be required to abolish it.  My plain reading of section 47 says the House of Commons can twice pass an amendment and thus the Senate's consent is not required.  Am I missing something or was that an error on your part?

[BR] Yes, your reading of s.47 is correct, the Senate has only a "suspensive veto". That is, in the context of a proposed amendment to abolish the Senate, the Senate would have the power only to delay its own destruction. The House of Commons could overcome any resistance in the Senate by re-passing a resolution in favour of its abolition 180 days later.

[D] 2) What is the basis of your certainty that abolition of the Senate would have to be done by Section 41 instead of 38?  Nothing in s41 seems to me to preclude abolition of the Senate.  The one reference is just that provinces must keep as many House members as they have Senators.  If there was no Senate, this requirement is trivial, but always met.  That the government has sent this very question to the Supreme Court seems to at least imply the answer is not certain.

[BR] The question is: would an amendment of the constitution to abolish the Senate be an amendment in relation to any of the matters listed in s.41 of the Constitution Act, 1982? If so, then the amendment would need to be supported by resolutions passed in all 10 provincial legislatures. I agree that the "Senate floor" provision in s.41(b) would not be affected by Senate abolition: provinces would still be entitled to have at least as many MPs in the House as they had Senators "at the time this Part comes into force" [April 17, 1982]. I agree that an amendment abolishing the Senate would not be in relation to the office of the Queen or her representatives [s.41(a)], the use of English or French (even though neither could be used any more in the Senate!) [s.41(c)], or the Supreme Court of Canada [s.41(d)]. However, abolishing the Senate would necessitate an amendment to the amending procedures themselves [s.41(e)], as the approval of the Senate could no longer be required for amendments as it currently is by s.38, s.41, s.42, s.43 and s.44 (subject to being overridden by the House pursuant to s.47).

You might argue in response that we could abolish the Senate and leave the amending procedures themselves untouched. But this would render the amending procedures unusable because they would require the approval of a body that did not exist. Could we live with such a constitutional straitjacket as the price of Senate reform? You might reply by saying yes, since the Senate has only a suspensive veto (by virtue of s.47). The House could simply vote twice, separated by six months, and thereby override the Senate's rigor mortis. You might say the country can put up with a delay of six months for future constitutional amendments - it's just another form of sober second thought.

However, notice that s.47 does not allow the House to override the need for Parliament's approval pursuant to s.44. The constitution currently defines Parliament to consist of the Queen, the House and the Senate. Therefore, the abolition of the Senate would make it impossible to pass future amendments pursuant to s.44, unless Parliament is redefined to exclude the Senate. But that would involve an amendment to the amending procedures, which by virtue of s.41(e) requires the approval of all ten legislatures. You might argue that if we are willing to make s.44 unusable, by not amending it to remove the requirement of Senate approval, then the unanimity procedure need not be followed. But that would be a curious kind of Senate abolition, one that would allow the Senate to rule us from the grave by preventing future amendments to Parliament or the government of Canada.

For these reasons, I believe the abolition of the Senate cannot be accomplished without amendments to the amending procedures and thus, pursuant to s.41(e), Senate abolition would probably require the support of all ten legislatures and both Houses of Parliament (subject to the Senate being overriden by the House pursuant to s.47). I say "probably" because the Supreme Court of Canada has not yet interpreted the amending procedures in the 1982 constitution. Its opinion on this reference will break new ground in that regard. The amending procedures are complex and convoluted, leaving plenty of room for legal debate. Nobody should put forward their opinion as a "certainty", although the text and its underlying objectives can allow us to say that some interpretations are more likely than others.

[D] 3) Do section 41 amendments require unanimous passage in the various legislative bodies (i.e. must pass with all 308 MPs, 105 Senators voting yes) or just that all 10 provinces and the federal parliament must approve by simple majorities within each legislature?  Your sentiments in the article seem to imply all individual voting legislators must assent.  Yet that level of unanimity seems implausibly high in any democracy.

[BR] No, when we refer to s.41 as the "unanimity procedure", as constitutional lawyers frequently do, we are referring to its requirement of unanimity among federal and provincial legislatures, not to the unanimous support of the members of each legislature. Section 41 amendments come into force if all ten provincial legislatures and Parliament pass authorizing resolutions through a majority vote of the members present at the time of the vote.

---------------------------------------------------------

I'm thrilled to get such a comprehensive answer. Questions 1 and 3 are really just clarifying points. The Hill piece makes it sound like "unanimity" doesn't just mean each legislative chamber approves, but each individual legislator.  Glad to also clarify the meaning of Section 47, which means the Senate is not required to approve of amendments concerning itself (or anything else, except for amendments under s44).

Answer 2 is the most important question though.  I find his reasoning convincing, except that I think the way he describes it, it is possible we could abolish the Senate as a section 38 (seven provinces with at least 50% of the population) amendment, and once that was done, follow it up with a section 41 amendment requiring consent of all 10 provinces and the House of Commons twice to fix s44.  That second amendment, would have a reasonable chance of passage since the Senate would already be gone.

Alternatively, it's possible we live without that amendment, and make do with s38 approval for things we might now want to pass under s44.  That entails a certain loss of constitutional flexibility, as there have already been two amendments passed under s44 since 1982.  One changed the formula for apportioning House seats, and the other granted Nunavut a Senate seat.  Arguably it would be good if amendments like that needed more approval than just Parliament itself.

Of course, the Supreme Court will rule on this, and maybe they'll find that you can't Amend the Constitution in such a way that some section you're not allowed to amend using the formula you're using would be rendered useless, inert or moot.  Maybe abolishing the Senate as a section 38 "seven-fifty" amendment just can't be done because it alters the effect of section 44 and that would be construed as an "amendment" even if the actual text of the section isn't being changed.  I guess we'll see, I'm a layman.

But if we are allowed to abolish the Senate as part of s38, and there is public will to do it, I would take my chances and accept the loss of s44 in exchange for ditching the Senate.  It's continued existence is an ongoing threat to the function of Canadian democracy, an unstable bomb that may go off any time in the form of deciding to exercise its theoretical powers.  If it has to be s41, we should still try.  If all that fails, and reform is the only option, we should ensure we set limits of the sort other bicameral systems usually have by limiting the Senate's powers over Supply bills, and creating provisions for the House of Commons to override it in some fashion at moments of great need.

Most Senates are Subordinate to Lower Houses

I can't claim to have reviewed every one of the 60 odd national governments with Senates, but in my review of a large number I find that limitations similar to what I outlined for Australia's Senate are the norm, not the exception.

Canadians probably have a skewed view based on our proximity and shared media with the US, but the US Senate as the most powerful legislative body is really exceptional (I know this is a debatable claim, I made the argument at length here, but in short form the special powers unique to the US Senate are better powers than the ones given to the House).  A few other countries (Brazil, Italy) have equal senates, but looking at France, Germany, Australia, the UK, Japan, India, Indonesia, Mexico and Spain you consistently find Senates that have significantly reduced powers as compared to the lower chambers of these legislatures.

We'd be fools not to learn from this.  The US Senate is derisively known as the "place good bills go to die" and Italy is infamous for "50 elections in 50 years" after World War Two.  Maybe it works well enough in Brazil, but even by having an upper chamber we are in the world democratic organizational minority and by empowering our Senate to be equal to our House in scope of powers, with no ability for override, we would be in a very exclusive club of unenviable systems.  It would be a radical experiment.

Canadian Senate Reformers Should Not Cite The Australian Senate

Advocates of Senate reform (particularly direct election of Canadian Senators) have taken to citing Australia's Senate as evidence that elected and democratically legitimate Senates are compatible with well run societies (here, here and here).  They should desist, unless they are prepared to advocate for an actual Australian model Senate, which is quite different from the one they are proposing for Canada.

Australia's Senate is Elected by Proportional Representation

This is almost certainly the most important difference.  Canadian Senate reformers are advocating Senators be elected by Province in the same manner we elect House members - first past the post.  How that would play out in multi-party Canada is unclear, though likely it would continue to allow a plurality support party to win a majority of Senate seats.  I fail to see how two Houses of Parliament elected by the same system improve Canadian democracy.

Australia's Senate has Limited Powers

Australia's Senate is not allowed to originate or (this is key) amend Supply bills.  This means the Government's budget bills (from the House of Commons) are take-it-or-leave-it propositions.  The US Senate is supposedly prevented from originating such bills, but with the power to amend them, this limitation proves essentially useless.  The US Senate, when it wants to pass such a bill, just takes any old House bill already passed that chamber, and "amends" it by stripping its contents and substituting a new bill.  Canada's Constitution has a US style provision and I expect it would be equally ineffectual without an Australian style limitation on amendment powers to money bills.

Australia's House has Powers to Override the Senate

For brevity's sake get the details here, but briefly the Prime Minister has some ability in extreme circumstances of the Senate blocking something, to force full elections of the entire Parliament and if that still doesn't get a Senate willing to pass whatever bill, the PM can initiate a joint sitting where House and Senate members get 1 vote each, and the much greater number of House members will probably cause the measure to prevail.  The first power (double dissolution) has been used six times already, and the joint sitting power was needed only once, to bring in Australia's system of universal health care during the 1970s.

The regular need for these override powers even given the extremity of causing an additional full national election campaign to do it should caution Senate reformers as to the general obstructionist nature of Senates that have the power to behave that way.  In a Canada that had the Senate our reformers are pushing, could national universal health care have come to be?

Still, even these limited powers and capacity for override did not prevent the Australian 1975 Constitutional Crisis where the Senate was blocking supply to the government, and the Governor-General decided he was therefore required to dismiss the Prime Minister (who still had confidence of the House) and force new elections.  A person on Twitter asked me if one crisis means their entire system is unworthy, and my answer is "maybe" - it depends how bad the crisis is, or could have been. That crisis was not only about the role of the Senate, but the unelected Governor-General dismissing a Prime Minister but we would be foolish not to observe that incident and ensure it could not happen in our system.

It would be an exaggeration to say Australia is some kind of failure.  It's a prosperous country and ahead of Canada in a number of developmental areas.  Yet it's clear that their Senate is nothing like the one reformers are pushing for Canada so we really can't draw much on their experience, and even then they have had significant troubles with their model.  I maintain my belief that the most sensible reform is abolition of the chamber, but if reform must be, I would vastly prefer the Australian model of a more democratically elected Senate, with limited legislative powers and which can be overridden at need to the model being pushed for Canada.

The Sensible Path: Abolish the Senate

Calls for reform represent a stealth effort to foist a radical new form of government on an unsuspecting Canadian public.

Aside from the cost (about $90 million per year) and the recent scandals about residency and private life criminal behaviour, the real threat the Senate poses is that it has (mostly) equal formal constitutional powers to the House of Commons.  The only thing that keeps them from acting like a co-equal chamber of our national legislature is that they know they lack public support and legitimacy to do so.  What if that changed?

That is what Harper's attempts to reform the Senate by ordinary legislation rather were intended to do.  He was trying to build a critical mass of quasi-elected Senators, who ran in provincially administered optional elections and then were appointed by Ottawa to the chamber.  They would feel they, individually, had democratic "mandates" to govern - legislate, block or amend House bills.  Once they started to do this, and had enough of them to do so, the public would probably object to this "unelected" chamber interfering in the elected House's business, and would likely demand full elections for the whole thing.  After that, Senate reform toward something like the "triple E" (elected, effective, "equal") model long pushed by western conservatives would be off and running.

Fortunately, Harper appears to have had second thoughts and may abandon the plan.  Very smart person Chantal Hebert (not snark) thinks abolition of the Senate may be near critical mass.  Here's hoping.

Why Not Reform The Senate?

Why should we abolish it rather than "reform" it?  Isn't reform the more mild solution and abolition is radical?  Actually, it is the reverse.  Reforming the senate in any way which empowers it to govern and legislate is actually far more radical than simply eradicating it.  Canada has governed for 145 years with the second chamber acting as a powerless rubber stamp that may as well have not existed.  Reforming it to create a second, potent, elected house of Parliament would be far more radical than simply formalizing the Senate's non-power by eliminating it.  Down the abolition route, we pretty much know the outcome since we have 145 years of not worrying what the Senate thinks about things.  Down the "reform" route we have no certainty about the outcome since it would be something entirely new to our mode of government.  That is unleashing a radical experiment on an unsuspecting public.

So reverse the onus:  Why reform the Senate?  If your problem with the Senate is a bunch of do-nothing, highly paid appointed party hacks and loyalists, than isn't the obvious answer to just get rid of them?  What is an "elected" and "effective" Senate supposed to accomplish, aside from providing a way to kick out Senators who cheat on expenses or commit personal crimes?  Abolishing would solve both problems without the major side-effects of creating a whole new chamber of powerful politicians.

When you push this way, what you find is that Senate reformers actually have a substantive agenda for government reform, one that has almost nothing to do with the widespread complaints and outrage at Senate misbehaviour.  They want a radically changed federal government, one which is more likely to govern the way they want, and less likely to do things they don't like.  This is about changing the nature of Canadian governance to favour right wing interests and ideology.  That is decidedly radical and should not be confused for the milquetoast term "reform."  A Triple-E Senate isn't a trivial change, it would be an entirely new system of government and one completely A-historical to our history and government evolution.

But, the House of Commons is Broken!

A common impetus for reforming the Senate is a litany of potential complaints about the actions of the House of Commons.  Again, if your problem is with the House than the obvious answer is to reform the House.  Whatever your problem with the House, why is adding 105 more elected politicians in the Senate supposed to fix that?  Reforming the House can take various forms, depending on the problem you may wish to solve, but if that is your complaint, attacking the problem directly seems to self-evidently the first thing to try.  Even better, reforming the House does not require radical experiments in wholly new forms of government.

An "Elected, Effective" Senate Ends Responsible Government

Going back in our history, a long battle was fought to bring responsible government to Canada, even before Confederation.  What does it mean?  The fundamental principle at stake is that the public should know who is responsible for the governing decisions affecting their lives and be able to punish or reward them electorally for it.  This underlies our whole system of government.  A Parliament is elected, the biggest party forms a government and we get to rate their actions good and bad.  Now throw in a separately elected Senate, which may or may not have the same party composition as the House, and whose members are not required to follow instructions from the Prime Minister.  They will block important government priorities, change other bills, and add in their own priorities for the House to consider.  They will horse-trade,  bluster and the end result will be policies that do not match what the sitting government intended to do or maybe even wanted.

In the US, this is often described as part of their "checks and balances" system of government.  No one source of power can take significant action without approval of one or more other sources of power.  It also means US voters can never be sure who to credit or blame for the actual policies enacted by Washington.  Anyone following US politics will still find debate over who to credit for balancing the US budget in the 1990s.   Was it Bill Clinton?  Or was it the majority Republican Congress?  Who knows?  Both had essential roles in it happening and we can't access alternative dimensions of reality where Dole wins the '96 election or Democrats retake Congress to address counterfactuals.  That's just one example and one where most observers agree something "good" happened.  Try to figure out who to blame for the repeal of the New Deal era Glass-Steagall act in 1999, or for the PATRIOT act or the recent debt-ceiling crises (multiple) and you'll see the drawbacks of checks and balances in a divided US government.

That system has certain merits (I do not favour it) but at least in their defence one can say their founders set about to create such a system.  Our model is not designed for this at all.  It would be some kind of horrendous accidental after-thought, stapled on ad-hoc.  We would not end up with a true "checks and balances" system but something like the worst of both worlds.

An "Equal" Senate would be Horrendously Unequal

An "equal" Senate means each province would have the same number of Senators.  Ontario has more people than British Columbia, Alberta, Saskatchewan, Manitoba, Nova Scotia, New Brunswick and Prince Edward Island combined, yet those approximately 12 million people would have seven times the Senate representation that Ontario's nearly 13 million people would have under such a system.  This is preposterous.  This is the same absurd system the United States has where Wyoming's 500,000 or so people have the same two Senators that California's 37 million people have.

Yes, people in rural and remote regions deserve representation.  This they already have both in the House  and further Provinces have a number of guaranteed powers in the Constitution, including the necessity that at least 7 of them would approve of most types of constitutional reform (so say, Ontario and Quebec, with a majority of Canada's people can't change the Constitution alone).

A Triple-E Senate is a recipe for parochial NIMBYism where the will of the majority would be regularly stymied on just routine day-to-day governance, never mind major (and rare) constitutional reforms.

In the US this system is already a disaster (where the Senate is known as the "place good bills go to die") where there are 50 states and no one state comes near the proportion of the total population that Ontario or Quebec do for Canada.  California is slightly over 10% of the total population, and it is the most populous state.  In Canada this type of system would be far more egregiously unfair.

Sober Second Thought

The track record of upper chambers as places where wild and radical bills from the more democratic lower houses are halted is actually quite thin.  Proponents of such ideas should be challenged to provide examples of really stupid populist ideas that were stopped by upper chambers.  In the US, the Senate failed to stop the Authorization for force in Iraq, the PATRIOT act, the repeal of Glass-Steagall, the bankruptcy reform bill, the FISA telecom retroactive immunity bill, the Bush tax cuts (two rounds) and the $700B bailout of the banks (TARP).  The US Senate did block all kinds of good and useful things like watering down aid to State and local governments in the Stimulus (leading to millions of police, firefighters and teachers being laid off), the cap-and-trade bill, the public option for Obama's health care reform (and nearly scuttled the whole bill), and in 2010 - over 290 bills that passed the House under Democratic control.  In the past, the Senate was infamous for blocking civil rights and voting rights legislation and even laws against lynching black people.

It's not just the US.  We can look at Australia which has an elected and powerful Senate.  If Australia's Senate worked like triple-E radicals want Canada's to work, it would never have gotten universal health care passed in the 70s.  Doing so required a special provision of the Australian Senate where a full "double dissolution" election of both bodies is called, and then (after the Senate still blocked the bill), the House is able to force a joint session of parliament where bills can be passed on majority vote (and the far greater number of House members means they can usually overwhelm Senate opposition).  Triple-E proponents suggest no such mechanism for Canada to by-pass a dead end Senate blocking the business of the nation.

The Australian Senate also partly caused Australia's infamous constitutional crisis when its Governor General preemptively dismissed the sitting Prime Minister despite his having the confidence of the House.  The Governor-General's reasoning was that the Prime Minister had been unable to get the budget passed by the Senate, which (he argued) meant that the government lacked "supply" (referring to money to run the actual government) and thus new elections were required. This was a very novel interpretation of Parliamentary unwritten constitutional duties of Governors-General and highly controversial among the population of the day.  But to this day the question is not fully resolved, and if a Canadian Senate was blocking supply to a sitting government, could a Canadian Governor-General do the same?  Or would we have something like the US in the 90s where the House Republicans under Speaker Gingrich blocked supply and forced a federal government shutdown (several, actually)?

Blocking Repeal of Bad Laws

The companion to the Senate's supposed ability to block "bad" laws is that it also blocks the repeal or amendment of bad laws.  Basically you can only believe the Senate will be "wise" in what laws it passes, blocks or amends if you believe Senators will be wiser than House members.  For elected Senators, I can't see why that would plausibly be so.

Around the World

The vast majority of governments do not have upper chambers.  One count finds 115 unicameral governments to 64 bicameral governments.  The list of countries without Senates includes such obvious governing disasters as Denmark, Sweden, Norway, Iceland, Finland, New Zealand and South Korea.  Of the 64 that have Senates, it is worth note that many of them have what I call "crippled" Senates - that is, Senates which are not co-equal with the lower House.  Canada is obviously one such, since our Senate has no democratic legitimacy, the UK has formally hobbled the House of Lords, and in many cases (Japan, Germany, France, Australia) the constitution provides means for the House to somehow override the Senate with varying degrees of difficulty.

This is far from a comprehensive evidence review, but then, that onus should not be on me.  Those who want an active and elected Canadian Senate acting as co-equal to the House of Commons should have the onus to show the benefits this will bring, and the harms it will avoid.  Electing them to resolve their expense and residency failings is simply overkill.  You can't "reform" a body that has no current useful purpose without identifying what purpose it really should be serving and ensure your reforms actually give the group a reasonable shot to do that.

Canadian Senate Reform On Hiatus

Or possibly even dead:

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.

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. 

 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:

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.

“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

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:

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.

What is Canadian Senate Reform really about?

This week, Stephen Harper's government introduced its first post-majority stab at substantively reforming the Senate of Canada.  Going off media reports of the bill, it is an attempt to alter the nature of the Senate while not requiring a Constitutional amendment.  There is already talk of constitutional challenges to the bill by the Provinces, but putting that issue aside, I'd like to explore what the bill is supposed to do, and address what Harper hopes to get out of it.

The most important thing to understand about the Senate of Canada up to this point is that it is formally equal to the House of Commons in most aspects of its Constitutional powers, and yet lacks legitimacy to actually act like a real legislative body and has for most of its days acted as a rubber stamp to the initiatives of the government of the day.  This lack of legitimacy is attributed to the fact that Senators are appointed by the Governor-General on advice of the Prime Minister, and thus Senators have no independent mandate to actually defeat bills from the House of Commons, nor alter its legislation in any significant way.

By and large, this system has worked fairly well for Canada.  The only big complaint about it is that the Senate became largely a patronage reward system where party hacks and fundraisers could draw a pretty decent government salary and enjoy the trappings of being a Parliamentarian without having to do the whole messy "run for office" thing.  A number of Senators have become infamous in the media for lack of attendance and other misbehaviour, which has made reforming the Senate a popular issue for many.

So what does this bill do?  Two things:

• Term limits.  Currently Senators are appointed and can stay in office until age 75.  This bill would set a 9 year, single term limit. 
• Optional provincial elections.  The bill sets up a stronger legal mechanism for Provinces to voluntarily elect Senate candidates, who would be appointed by the PM when vacancies occur. 

While both ideas are pretty bad, it's the second one that's most dangerous.  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.

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. 

Now here's the question:  Why would Stephen Harper, and the Reform/Alliance western conservative base he represents want to empower the Senate?  One of the traditional complaints of Albertans is that they are "left out" and they claim "the West wants in" because of the purported underrepresentation of the West in Ottawa.  Let's take a look:

Province	Pop	% of pop	House Seats	% of House	Senate Seats	% of Senate	Ratio to pop
ON	13210667	38.70%	106	34.40%	24	22.86%	0.59
QC	7907375	23.20%	75	24.40%	24	22.86%	0.99
BC	4530960	13.30%	36	11.70%	6	5.71%	0.43
AB	3720946	10.90%	28	9.10%	6	5.71%	0.52
MB	1235412	3.70%	14	4.50%	6	5.71%	1.54
SK	1045622	3.10%	14	4.50%	6	5.71%	1.84
NS	942506	2.80%	11	3.60%	10	9.52%	3.4
NB	751755	2.30%	10	3.20%	10	9.52%	4.14
NL	509739	1.50%	7	2.30%	6	5.71%	3.81
PE	142266	0.40%	4	1.30%	4	3.81%	9.52
NT	43759	0.10%	1	0.30%	1	0.95%	9.52
YT	34525	0.10%	1	0.30%	1	0.95%	9.52
NU	33220	0.10%	1	0.30%	1	0.95%	9.52
Canada	34108752	100.00%	308	100.00%	105	100.00%	1

(chart source: wikipedia with Senate columns added by me)

It is true that Alberta and BC are slightly underrepresented by population in the House of Commons.  But so is Ontario.  Quebec is slightly overrepresented, but hardly anything dramatic.

As the "West" includes Manitoba (MB) and Saskatchewan (SK) in the usual understanding of the term, overall the four western provinces have 31% of the population, and 29.8% of the House seats.  This is the grand "left out" claim?  The four provinces have less population than Ontario, and are proportionally better represented.  

Now look at the Senate.  Owing to some silly history, the breakdown of the Senate is particularly antiquated and the founders broke Canada into four regions, and gave each region 24 Senators.  So Ontario and Quebec got 24 each, the West got 24, and the maritimes got 24.  This has left the Senate in a particularly egregious state of misallocated represenation.  What doesn't make sense to me, is that the West is far more underrepresented in the Senate than in the House.  There the four western provinces have 22.86% of the seats.  In particular why Alberta would want to empower a body that almost cuts their influence in half versus the House is tres strange no?

It is true that the old Reform party mantra on the Senate would be to make it "triple-e" which is effective, elected and equal*.  Harper's bill could potentially achieve the first two (after a fashion) but has no provision for the third?  What's up with that? 

The only rationale that makes sense to me is one of pure ideology.  Senates, all else being equal tend to be biased toward conservative politics.  It's harder to get elected to the Senate, it's more prestigious, the terms are longer, and consequently Senators tend to be older, whiter, less female and richer.  All of which makes one more conservative.  Harper isn't trying to solve Alberta's federal under-represenation problem, he's trying to stack the deck of the Canadian system in a way that improves the outcomes for conservative ideologues.  If nothing else, adding an empowered Senate just adds a veto-point to government, which means that every bill is just that much harder to pass.  Every barrier you add, means some percentage of legislation will not make it into law, no matter how you compose that barrier.

I have written before of this basic asymmetry of interests that is too often ignored in simplistic analyses of "liberals versus conservatives" battling for the neutral levers of government.  Conservatives, at the end of the day, are usually far more happy to just have the government do nothing. They generally represent the interests of the rich, comfortable and powerful.  Such people don't need anything from government.  They'll take it if they can get it, but they don't need it to pursue their interests.  Such people are also by definition a minority and have much to fear from government interfering in their ability to draw undue rents from the less powerful.  Knowing nothing else about the issues or system, in this calculus Conservatives would prefer a government that is harder to operate than one that is easier to use to effect change. 

I know a lot of Canadians detest the idea of a bunch of pampered hacks drawing government salaries until 75 for no expectation of work.  This, I think, is the core of the popularity of electing the Senate.  But that's no reason to empower our Senate to interfere in the business of governing.  If you don't like the hacks, the solution is simple, abolish the senate like the NDP have been saying for years.  Canada hasn't needed the Senate for much up to now, what exactly is electing the Senate supposed to solve?  If you resent what they cost now, just wait until they feel democratically empowered to govern. 

It's important to understand this, because on the basis of the age-old western complaints, Harper's bill makes very little sense.  He may hope that a rebalancing of the Senators could come down the road, but that for sure would require a constitutional amendment.   The current allocation of Senators could end up being permanent.  PEI has 9 times the number of Senators their population would otherwise justify.  Think they're going to give up 3 Senators without a fight? 

* -I detest the idea of allocating identical Senate seats to each province "equal" - I see no reason to replicate the worst aspects of the American system, where the 500,000 people of Wyoming elect the same 2 Senators that the 37,000,000 people of Califnoria get to.  That's about as un-equal as you can get.