The Sixth Estate

After the election, I speculated that the Harper regime would introduce either no Senate elections or rigged Senate elections. I’m sad to say I was right, and that it appears it will be the latter: the provinces will be allowed to hold elections as they please, and the Prime Minister will then have the option — not the obligation — to appoint people who win the provincial elections.

Unfortunately, this pathetic attempt to sidestep necessary Constitutional reform is going to simply move us one more step along what the late Jim Travers called our road toward an Arctic banana republic. I realize Constitutional reform is difficult to the point of impossible — the usual explanation for why it’s impossible. But the idea that we can move ahead with these elections anyways is fundamentally wrongheaded and will turn our democracy into a joke. Here are four questions that have to be answered before Senate reform should be allowed to proceed. The Harper regime has failed to provide an answer to even one of these questions.

1. Should the Prime Minister have the power to veto a Senate election?

The answer in Harper’s scheme is, absolutely yes. The Constitutional process says that the Governor-General formally hires a Senator, based on a binding recommendation from the Prime Minister. What Harper is proposing is that provinces organize elections for Senators, and then he will cherry-pick new Senators off the list of electoral winners the provinces hand him. Obviously it is almost absurd to call it a democracy when the sitting Prime Minister gets to unilaterally pick and choose who represents the people.

Do you honestly trust Stephen Harper to allow Quebec to send 24 separatist MPs to the upper house? Do you honestly trust his successor — let’s say a Liberal one, but perhaps an NDP one — to agree to send 16 Conservative MPs from the Prairies to the upper house? Do you trust a prime minister to appoint senators if doing so will end his own party’s majority in the Senate? All of these are hypothetical situations, but they are situations which will probably eventually occur if we have Harper-style Senate elections. And if you answered no to any one of those questions, then you’ve just made my point for me: we can’t trust the unchecked power of the prime minister as the fount of democracy. Sooner or later someone will be in that office who will decide to break the rules. It may not even be Harper. But whoever it is, we will have no legal way of stopping them.

Now, you can solve this problem. But to do it, you’ll need a Constitutional amendment saying Senate elections are guaranteed safe from Prime Ministerial fiddling.

2. Who will Senators represent?

Traditionally, Senators represent regions, not people. That’s why British Columbia has six senators for its 4 million people, Saskatchewan has 6 senators for its 1 million people, and New Brunswick has ten senators for its 750,000 people. So how will you go from there? Realistically, the most obvious way to translate this regional system into modern electoral democracy in Canada would be a province-wide proportional representation election. Harper will never agree to this because it would probably lead to a Conservative minority. (Not just a Conservative minority, either; PR systems almost inevitably lead to minorities, no matter who wins.)

Now, you could have a flatly non-partisan election, which would be unusual. Or you could divide the Senators into their own ridings, in which case you’d have the same system as the House of Commons, making it redundant, plus it would be blatantly antidemocratic because of the seating formula above. Maybe it doesn’t matter. But if it doesn’t matter, you’ll have to explain to me why. In other words, you’ll have to explain to me what Senators are there for.

All of these could be solved, too. But to do it, you’ll need a Constitutional amendment explaining what Senators are supposed to do and how they will be elected.

3. What will the Senate do?

Right now, the Senate has theoretically equal power to the House of Commons, except that any bill that involves government spending (eg the budget) has to be introduced in the lower house, and normally ministers are chosen from the lower house. The rationale for both rules is that the house that is elected should have more power than the house that is unelected. Put simply, the unelected Senate does not have the legitimacy to overrule the elected House of Commons. This underscores Conservative anger over the Liberal Senate majority in recent years.

But once you make the Senate elected, they will have the legitimacy to take independent action. And it won’t take long for Senators to realize they should be flexing their muscle if they want to get re-elected. So, what exactly will an elected Senate do? Will the centre of government always be in the House, or can the next Prime Minister be a Senator? Can half the Cabinet be in the Senate and half in the House? If so, how will Question Period operate? If not, what exactly will the Senate do? What are the rules? We never bothered to write any because the Senate was never supposed to have any real power.

You could specify what powers the Senate has, of course. But to do that, you’ll need a Constitutional amendment.

4. What happens if the Senate actually does something?

I’ve left this to last, because it’s a nightmare scenario. But it’s also the most important question. And it’s a totally realistic scenario if you assume that one day a party will have a majority in the Commons but not in the Senate. And with an elected Senate, inevitably this will happen. What happens if the Senate decides to block a bill? Let’s go further. Let’s suppose the majority “opposition” in the Senate decides that it’s lost confidence in the government and will block everything. Or, let’s suppose the majority “government” in the Commons decides that it’s lost confidence in the Senate. In practice it doesn’t matter who starts it, because the result is the same: complete deadlock.

In a crisis, the prime minister can always dissolve the House of Commons and call an election. But he can’t dissolve the Senate. He can’t force a Senate election. And the opposite is true, too: a confidence vote in the Senate wouldn’t bring down the government in the House of Commons. So let’s say there’s a fight. Who wins? Which one trumps the other? Unlike the Americans, we don’t have a President to mediate between the two; the Prime Minister is an MP himself. We don’t have any rules in the Constitution to govern this because, again, the Senate really isn’t supposed to exercise any power.

This is worse than a minority Parliament, because a minority Parliament always has several options available to it, the most drastic of which is the eject button: closing down Parliament and holding new elections. Because the Harper proposal would give Senators different, fixed terms, you can’t dismiss them for an election. They’ll still be there after the election, waiting to resume the partisan fracas. Until they have their election, after which we jump back to Step 1, with us having to trust the prime minister to appoint his political rivals to seats where they have real power over him.

The Bottom Line

In the short term, it’s quite believable that the Harper Senate reform won’t mean much. Senate elections will be low-key adjuncts to provincial elections, the prime minister will appoint them, and then they’ll pretty much drop out of the public eye. Like Senator Bert Brown of Alberta. Anyone heard of him? He’s elected. It may be quite a few years before Senate elections become high-profile affairs.

It might not be, though — the Liberal Party seems to be angling for Senate elections as their ticket back to power, and that would make Senate elections immediately important. Even if that doesn’t happen, though, it’s just plain idiotic to think that no Senator will ever decide to start expanding his or her power base, ever again, as long as Canada exists. And that no prime minister will ever decide to fool around with the informal election process, ever again, as long as Canada exists. We’re talking about creating a new system, and if we’re serious about doing that, then it’s time to lay some ground rules.

If the Harper regime can’t understand that fact, then they’re not just incompetent, they’re incredibly stupid and shortsighted.