Tuesday, July 28, 2015

Reform the Senate: Two Competing Proposals

The idea for this post originated a few weeks ago. It is a pleasant coincidence that Prime Minister Harper recently announced his position that the provinces must come together on a reform or the Senate should be abolished. After reading Protecting Canadian Democracy edited by Serge Joyal I began to consider a broader range of reform choices available to Canadians. For a different perspective I invited my friend Simon Andrews to contribute his own proposal. We wrote these proposals ignorant of what the other would write. Simon is a historian who studied the early American republic. He is currently working on a project called "America, On Paper" where he exams topics through the lens of documents from the period. I asked Simon for his thoughts because we often diverge significantly on constitutional questions; I support the monarchy and he's a republican, he values the American constitution and I believe it is in desperate need of reform, to name just two points. I will warn you in advance that this is quite long, but I hope interesting.


How can we change this place to better serve Canadians? 

The Rules

Simon and I were starting from a basic set of assumptions. First the only reforms were for the Senate. There's no corresponding proposal attached for proportional representation in the House of Commons, or restriction of prorogation allowed. Second the proposal had to fit within a certain political reality that we face in 2015.


Reforming the Senate - Steven's Proposal

I think it is paramount that Canadians find a way to reform rather than abolish the Senate. Some of the major concerns in the governance of this country is the declining power of MPs and the stranglehold of party leaders, particularly the Prime Minister on power. Abolishing the Senate, if anything, would only exacerbate this problem. The more legitimate Senate could offer a valuable counterweight to executive power and help set other things to rights.

My inspiration for reforms largely comes from the Australian Senate, the United Kingdom's House of Lords and Germany's Bundesrat. My proposal is guided by a few basic assumptions. All large federations in the world are bicameral. The idea that Canada should move away from the international norm strikes me as strange. A country as large and diverse as ours needs ways to express that in its governing institutions. The Senate of Canada needs to include some democratic component to grow its credibility with the public and increase its legitimacy. The Senate must continue to represent geographic regions, minorities and isolated interests commonly excluded from the democratic representation (ex. women, or linguistic minorities). My specific proposal most resembles plans to reform the UK House of Lords. Another principle to keep in mind is that Quebec needs to be protected. It's easy to dismiss Quebec as just one of the ten provinces but its distinct political and social culture as a large minority in this country that needs to be safeguarded. It is a fair compromise and the Senate can help accomplish that. In other upper houses around the world few countries use the completely equal system found in the United States Senate. States/provinces tend to be represented on a distorted or disproportional population basis, I will be using that as a guide.

Selection

Senators must be largely elected. I am surprised that I have moved away from a fully elected Senate in my proposal but a certain number of appointed Senators could significantly improve the quality and representativeness of Senators. I am willing to make that compromise to protect the representation of minorities. I would suggest then that one third of the Senate be appointed and the rest be elected through a ranked ballot. I think depending on the province it would make sense to do province-wide contests, or regional contests. For example, in the case of PEI I don't see a reason to divide it into constituencies, but Ontario, with a larger number of Senators and distinct internal regional differences, could make the argument for a Northern, Eastern, Central, and Southwestern division of seats. That determination can be revisited every 10 years after the census and when seats are adjusted for the House of Commons.

Appointed Senators should be non-partisan and selected by a special standing committee independent of the Prime Minister. Composition of the Appointments Committee could look like the Electoral Boundaries Commissions; non-partisan, led by a jurist with technical assistance. The goal of the Appointments Commission should always be to correct imbalances in the Senate with underrepresented populations of their respective provinces and provide expertise to the body. Some groups for special consideration in my opinion would be women, First Nations, M├ętis and Inuit, linguistic minorities, ethnic minorities and young people. The Appointments Commission should likely consult with the provincial/territorial legislatures for their input as well as accept public feedback. The goal is to represent regions and slices of the Canadian public, not necessarily provinces.

Senators, elected and appointed, would serve an eight-year term on fixed dates, barring a double dissolution or simultaneous election with the House of Commons in the event of deadlock. They may stand for re-election if they so choose. Appointed Senators should be generally replaced after one term to infuse new blood, but they may stand for election (independently or with a party) if they so choose. In the event of a retirement, resignation or death of a sitting elected Senator the Appointments Commission should fill the seat, either with a non-partisan or person of the same party, with consultation of the provincial legislature.

Composition

Province/Territory
Current Senators
Reformed Senators (Elected + Appointed)
Population (2014)
Tier
Ontario
24
16+8
13678700
1
Quebec
24
16+8
8214700
1*
British Columbia
6
8+4
4631300
3
Alberta
6
8+4
4121700
3
Manitoba
6
6+3
1282000
4
Saskatchewan
6
6+3
1125400
4
Nova Scotia
10
4+2
942700
5
New Brunswick
10
4+2
753900
5
Newfoundland and Labrador
6
4+2
527000
5
Prince Edward Island
4
2+1
146300
6
Northwest Territories
1
2+1
41462
6
Yukon
1
2+1
33897
6
Nunavut
1
2+1
31906
6
TOTAL
105
120

*Quebec will always be in Tier 1 regardless of population changes.

Under my proposal the Senate will switch from a fixed number of Senators to a tiered system based on population. Tier 1 will be for provinces with over 10 million people, must always include Quebec and cannot number more than three provinces.

Tier System

Tier
Population
Number of Senators
1
10 000 000+
24
2
5 000 000-9 999 999
15
3
3 000 000-4 999 999
12
4
1 000 000-2 999 999
9
5
500 000-999 999
6
6
0-500 000
3


Unlike the fixed model we currently use the tiered system would be a fair and transparent way to allocate seats. The numbers I have chosen likely mean we would see a few provinces move around in the coming decades as they sit on the edge of either going up or down. The flaw with the system is that it is based on fixed population numbers. It might make more sense to use a quintile system or something like that to avoid any future problems. It is entirely possible that in distant future all ten provinces will have over 10 million people and this system would break down.

Powers

Ronald Watts' essay in Protecting Canadian Democracy makes the argument that bicameral systems work best when the two houses are distinct from each other. A reformed Senate should be comfortable vetoing or amending the legislation of the House of Commons as their legislative powers and legitimacy should roughly be equal. The House of Commons should remain in exclusive control of money bills, but the thoughtful and meaningful inclusion of the Senate in matters is paramount.

Historically in Canada the Senate has been very active in defending the Charter of Rights and Freedoms and the Constitution. Having the Senate approve of appointments to the Supreme Court and have a standing committee dedicated to constitutional questions might be wise. I would hope the Senate would continue its valuable contributions through studying questions and providing the country sober second thought. These studies could be transformed into more focused scrutinizing of the government to better ensure accountability. It may also be wise to have the Senate make the appointment of Parliamentary Officers, such as the Auditor General. This way they are independent of the Prime Minister and better define the Senate as a watchdog.

Canada under this Proposal

It is difficult for me to imagine that Canada would not benefit significantly from this arrangement. Obviously the fear of deadlock is a real possibility, but it also ensures that the chamber of sober second thought can have its thoughts heard. The power of the Government and Prime Minister would be significantly curtailed. Legislation would have to have greater consensus and governments would have to get the backing of a good number of the non-partisan Senators to pass their programs. More legislation would come from the Senate representing the diverse needs of the country as a whole.

Western provinces gain significantly under this proposal, but we are a much more Western country today than we are at our founding. Atlantic provinces, while reduced in influence in the Senate are not substantially so. I also believe there is significant value into improving the representation of our territories in the Senate. The inevitable conflict between the Senate and House of Commons is, in the end, positive, as both represent different, important facets of this country. That's democracy.

Reforming the Senate - Simon's Proposal

Reforming the Canadian Senate: A Modest Proposal

Though it may at times escape the attention of the average Canadian, we do indeed have a Senate in this country. Perhaps it escapes our attention because, thanks to being inundated by American news media, we’ve come to think of a Senate as an activist body. Senates do things; they pass bills, and offer amendments, and confirm executive appointments. And they filibuster, or threaten to filibuster, or threaten to threaten to filibuster. We hear of no such thing in this country, and so we must not have a Senate.

Or if we do hear tell of our fabled upper house it is in tones of disdain, dishonor and disappointment. It’s such a Canadian emotion, disappointment. Anger would ask too much of us. We can only get angry at things we care about. Who cares about the Senate? So we shake our heads and cluck out tongues, content in the knowledge that at least we know what’s right even if the men and women who govern us don’t.

But that’s not enough.

We have a Senate. It performs no useful function. It is a stain on our national character. But it’s ours. It may have become perverted, twisted into a wild parody of its original purpose, but there is a reason it exists to begin with. There is a reason for bicameralism. There is a reason for an upper house and a lower house, for wanting to balance differing national and regional interests against each other. As it stands Canadians look upon majority governments as good and natural and minority governments as aberrant and unpleasant. We have lost our taste for debate, it seems. We prefer government to function smoothly. We want the Prime Minister to take us by the hand and show us the way forward. And with all the power the office of Prime Minister enjoys, why not? Even in a minority situation, the government almost always holds the winning hand. Challenges from the House can be met with any number of constitutional countermeasures from prorogation to dissolution. Meanwhile the Senate spends public money, makes a show of examining legislation put before it, and hums along doing nothing of any great import. What average Canadian can name their Senator? Or do they belong to us at all? Perhaps we don’t know them because they represent interests all their own, and are beholden to a much smaller constituency than we thirty million strong. 

But look again to our southern neighbors. Look at what a Senate can do. Functioning bicameralism is messy, yes, contentious, un-Canadian in its apparent disorder. But maybe that’s what we need. Maybe something to shake us out of our complacency, something that introduces a degree of dynamism into the very core of our political process. A reformed Senate could do this. Or at the very least the process of attempting reform should spark debates we’ve long been in need of in this country. We are in danger of becoming a ceremonial democracy. Canadiana reclines on her pedestal, bedecked in cobwebs, enshrouded in dust. We need to put the old girl through her paces,

We need to reform the Senate.

Philosophy

While many aspects of American political culture are the farthest thing from being worthy of emulation, the logic that underpins their basic constitutional framework is by contrast quite measured and sensible. The Framers of the United States Constitution, notwithstanding how their work has since been interpreted, gave careful consideration as to how different social and human forces could be harnessed, regulated, and balanced in such a way that weakness and ambition could be made to benefit the greater public good. American bicameralism is perhaps the crowning achievement of this attempt at creating a stable, well-adjusted government that was at once consistent and regenerative, restrained and dynamic. 

This is because bicameralism makes sense. A country as large and complex as the United States or Canada, with as many strong sub-federal units of government, could not hope to be easily represented in a single elected body. There are too many different interests, too many social classes, too many factors that might push and pull on prospective legislators to support policies that reward or deny the layered and often competing sovereignties of which such large nation states are composed. There are, to continue with the present example, things that concern Americans as citizens of a single country composed of many diverse geographic regions and communities. There are also things that concern Americans as citizens of one of the fifty distinct, sovereign political and cultural communities that comprise the American federal union. Sometimes a person needs to have their needs represented as a citizen of Beaumont, which just happens to be in Texas, and sometimes they need to have their needs represented as a citizen of Texas itself. This is a subtle but fundamental distinction because these dual sets of needs are not always compatible. Yet they all must be heard, debated, compared, contrasted, and reconciled. A unicameral legislature, unless located in a sparsely-populated community, would be ill-equipped to do so.

Furthermore, representation by population alone must obviously favor more populous regions. Texas has more congressmen than Rhode Island, New York more than Delaware. This makes sense within the logic of majority rule, but a true democracy must make considerations for the least among its citizens. The smallest minorities and the tinniest constituencies must have their day, lest the majority became a tyranny unto themselves. Rhode Island may contain among the smallest overall percentage of the total American population, but as a state it is the legal equivalent of Texas, New York, or even mighty California. Its citizens must not be punished for being born or choosing to reside in Warwick or Woonsocket by having their elected representatives’ voices continually drowned out by the legion that are their big-state contemporaries. In some sense, in some forum, little Rhode Island’s voice (or PEI’s voice, or Newfoundland’s voice) must be made to carry equal weight. 

We call this forum the Senate.       

Selection

In order for our Senate to conform to the democratic logic discussed above it must become two things first and foremost: equal and elected. If Canadian Senators are to serve the function of representing the citizens of this country as members of the distinct political and cultural communities we call provinces, they cannot do so as the appointees of a grateful Prime Minister who at the end of an election cycle owes perhaps one favor too many. If Ontario is to have Senators they must represent Ontario. They must be able to speak to the issues that concern the people of Ontario, and they must have the confidence of same if their claimed authority is to mean anything at all. At present Ontario’s twenty-four senators represent the province in name only. No one who resides in any of Ontario’s communities chose them, and so their legitimacy as popular representatives in a nominally democratic system is entirely non-existent.

Yet this cannot be enough. The people of Ontario must feel as though they are being accurately represented by their Senators, but so too must the people of Prince Edward Island feel as though their Senate delegation has an important role to play in the legislative process. As it stands said deputation possesses but four members, and thus their interests must ever be subsumed into those of the greater Maritime Provinces if they hold out any hope of moving the legislative needle. Some might protest that this is simply the nature of compromise. PEI cannot act alone, and so it must negotiate in order to have its voice heard. But this is true in the House of Commons, is it not? There too smaller provinces must hustle their way into getting their regional concerns placed on the national agenda.

If the Senate is to be something different, then let it be different.

Every province and territory, regardless of size, will elect between five and ten senators, for a maximum of one hundred and thirty members. Elections will be held on a proportional basis, with citizens voting for their party of choice on a province-wide basis and seats being allocated from prepared party lists in accordance with the percentage of the total vote that each party receives. A Senate election in Quebec, for example, in which the NPD receive 40% of the vote, the Liberals 30%, the Bloc 20%, and the Conservatives 10%, would, with ten seats available, result in a Quebec delegation composed of four NDP Senators, three Liberals, two Bloc, and one Conservative. These are purposely round figures, of course, but the logic is clear enough. Senators will be elected to six year terms with no limit on re-election, and Senate elections will be as closely coordinated with House elections as possible.  

Powers

Because the seat of executive government in Canada will remain in the Commons one of the most important roles a reformed Senate can fulfill is that of holding the government to account. This is a role the Australian Senate has performed to great effect, and considering how easily recent Prime Ministers have made use of our loosely defined constitutional conventions and the prerogative powers at their disposal via the office of Governor-General such a check is absolutely essential. This can be accomplished by, on the Australian model, vesting the Senate with a number of regulatory, investigative and accounting responsibilities as expressed through a robust committee structure. Among other things it could potentially fall under the purview of the Senate to investigate government budgets and policy implementation, conduct audits of various publically-funded organizations, and generally direct inquiries to government ministers and other public officials. This theoretical supervisory role would be facilitated by the fact that the reformed Senate, whose members would be elected proportionally, and the House, whose members are elective via FPP, would infrequently be dominated by the same party. Thus, even in case of a strong majority in the House of Commons a reformed Senate would be more likely to have its seats spread across a larger number of parties and would consequently be more inclined to check the power of the government of the day.  

This being the main role of the reformed Senate, their legislative responsibilities would be somewhat reduced when compared to the Commons. Though they would be capable of originating, approving, rejecting or amending most forms of legislation on an equal footing with the House, they would not be able to create or alter appropriations bills. That they would still be able to reject appropriations – thus blocking supply, in the parlance of Westminster – could potentially lead to a deadlock with the House, specifically in cases when the government refuses to resign having maintained the confidence of the lower chamber. Such an eventuality could be avoided by putting in place a relatively simple procedure. In a slight twist of one of the provisions of the UK Parliament Act of 1911, the Prime Minister could be vested with the authority to dissolve the Senate as they can now dissolve the House in order to call an election, but only once an appropriations bill has been approved by the Common and rejected by the Senate three times in succession. This would permit the Senate to exercise some degree of input and oversight concerning the parliamentary appropriations process while simultaneously ensuring that constitutional crises do not become a regular fixture of Canadian political life.

Beyond its regulatory and legislative roles, the reformed Senate would also be responsible for confirming the nomination of the Governor-General and of the Justices of the Supreme Court of Canada. This would serve the purpose of both lessening the powers of the Prime Minister as well as increasing democratic input into the selection of some of the most important officers of the Canadian government. Under the current status quo the Governor-General is for all intents and purposes an appendage of the Prime Minister’s office, chosen by them for reasons which do not bear explaining to the Canadian public. In that sense the Governor-General, though it isn’t often stated, is to some degree beholden to the PM for their position. Traditional or not, this isn’t a tenable state of affairs. Permitting Senate confirmation would at the very least give the provinces, as embodied in the Senate, some say in who ends up wielding the very important constitutional powers vested in the monarch’s vice-regal representative.  

Comparison

Simon and I took very different approaches to address problems we jointly perceive. This is the debate we should be having in this country. I would take some of his points and incorporate it into my own for sure, such as the appointment of the Governor General. Throwing our hands up or arguing whose Senators are more corrupt does absolutely nothing to advance Canada. I see flaws in Simon's proposal, and I am certain he will have issues with mine, but even still both offer citizens more than what abolition does on its own. The status quo is unacceptable, but we need an upper house, so, as a country, let's discuss what we can do. Please feel free to comment and share your thoughts on these proposals and check out Simon's blog for more of his work. 


3 comments:

Simon Rasmussen said...

I enjoyed both your proposals. They were well reasoned and, even if one quibbled with a few things here and there, took well into account the dynamics of federalism in Canada.

I do have one substantive comment on both proposals. Each included references where the Senate would "confirm" the appointment of certain officials. Unless confirmation were an informal conventional process, eg. a reference check rather than an official giving of consent, this could run into significant problems with the role of the Crown in Canada.

It would be no issue for the Senate to formally confirm the appointment of Officers of Parliament, since they are creatures of Parliament and have no relationship with the executive arm of the Crown. Far more problematic, however, would be "confirmation" of judges and, most significantly, the governor general. To do so would fetter ministerial discretion to advise the Crown, which the Supreme Court found unconstitutional regarding the government's proposed elections to the Senate. Perhaps instead the Senate could be called upon, much as was done with some Supreme Court appointments until recently, to provide its opinion on suitable candidates. This opens up a whole other question as to why the Senate is inherently more trustworthy than MPs to do such things, but regardless, such a practice couldn't really be part of the constitution.

S.A.Andrews said...

If this is case, and I don't doubt that it is, then the Constitution ought to be amended to allow for Senate confirmation of said officials. If I had my choice the monarchy would be done away with entirely, but I was told to limit myself to Senate reform only. If the House is to have sole responsible for the budget, the Senate should be allowed oversight on appointments. It's all about balance.

All the same, an excellent point.

SJL said...

Thank you very much for your feedback Mr. Rasmussen. I will try to address the points you raised.

Regarding confirmation, the Crown through the Governor General appoints many of these positions on the direction of the Prime Minister. It could simply made tradition, enshrined in law, that the PM nominates a candidate, the Senate consents and until then the GG appoints him/her. And it is not that MPs are more or less trustworthy than Senators, its about a distribution of responsibilities and duties.

Simon is correct, I constrained our attention to the Senate alone. Otherwise we would spend too much time talking about limiting PM power, reforming the HOC, electoral systems, etc. Not to mention we may be approaching a time where reform of the Senate is politically tenable, but the status quo will remain for the rest of our system.

Thanks for reading.