Senate Reform and Its Discontents

Leading up the next election, Senate reform is shaping up to become a key issue. Between housing allowance scandals and criminal charges, no serious party can assemble a platform without a Senate-related policy. Unfortunately, it is precisely these types of conditions that lead to knee-jerk reactions, unworkable solutions, and broken promises. With the three main parties shaping up to represent some version of each of elections, abolition, or minor changes to the status quo, opting for the latter carries with it the inherit risk of being branded “tired”, “corrupt”, and worse. It is only by reviewing the redeemable qualities of the current Senate, while keeping in mind democratic and related practical objections, that we can come to a workable model and a policy that we can take into the next election. I will argue that party affiliations have no place in an appointed body and that removing them from the Senate seems to be neither dramatic, nor difficult to achieve, and is the best expression of the democratic potential of the Upper House.

Objections to an elected Senate are well-worn ground. If senators were elected with a democratic mandate, they would feel empowered to weigh in on every single piece of legislation, and not just for reasons of sober second thought, but for partisan reasons as well. If they were elected and then circumvented, as is the current power of the Commons, the outcry would be both loud and justified. An elected Senate would encourage deadlock or require usurpation; both are undesirable. That said the Senate is an extremely powerful partisan body that’s current incarnation, a group of partisan operatives drawing a public salary while electioneering, is all but impossible to defend. Refuting elections thus seems to lead naturally into the argument for abolition.

If reasons of democracy demand we abolish the Senate, however, they can paradoxically justify its existence as well. Any democracy is built on a series of checks and balances. The House of Commons is incredibly powerful and, as a result of party discipline, a great deal of that power is concentrated in the Prime Minister. A plurality of voters elected Stephen Harper, and, if we believe the polls, a plurality of voters could elect Justin Trudeau. But speaking as a supporter of the latter, I know that there are people who are more comfortable with the idea of voting for him because his powers will be less than absolute. Our current government has drafted legislation whose effects were not studied by Parliament (or even completely known to them) which is why our leaders get elected with the understanding that there will be checks on their power, of which the Senate is an example. The democratic legitimacy of these checks flows from the fact that they were in place when, and a condition under which, we elected our current government. This means that rather than regarding the feasibility of an idea or course of action as an outside factor when considering whether a decision is democratic, it must be considered as part of our political calculation because of the very democratic necessity of checks and balances.

Each election is a double reaffirmation of our system; first, because it is a condition that leads to our voting for the current government, and second, because we can change any individual part therein with sufficient political will. So when Andrew Coyne argues against the Senate by opposing it to the Supreme Court, which he argues is legitimate because they are “restricted to comparing one piece of legislation, the law in question, with another: the constitution [, and b]oth were passed by democratic legislatures”, the Senate is legitimated by the same process but in reverse: those same democratic legislatures (Parliament and the provinces) have within them the power to abolish the Senate but have not done so. The Senate, as it exists, is democratic. The only question is whether it is likely to remain so in going into the next election.

Since democratic and political reasons are interchangeable with practical reasons when considering elections or abolition, it bears mentioning as well: either would be extremely difficult to undertake. This is where thoughtful, meaningful reform comes in. In a recent piece in the Star, former MPP Greg Sorbara suggested a potential Liberal vision for reform that “would require no new legislation” and “could be accomplished by a thorough rewriting of the standing orders that govern the operation of the Senate along with the elimination of the public funds that support the caucus structure within the Senate.”

When our opposing options require opening the Constitution and unanimous consent of the provinces, how feasible your plan is becomes a key democratic concern. Sorbara’s plan is two-pronged: reform the appointment process, and remove party designations from senators. I would argue the first point is taken care of by the second: taking the decision out of the Prime Minister’s hands to ensure non-partisan appointments is to me, unnecessary. The Prime Minister already appoints the Governor General and the Supreme Court; the trust is already there to make non-partisan appointments as necessary. Moreover, the Senate already has a moderating effect on its members; one can only assume this would be more so if parties were abolished there, as a convention was established that demanded non-partisanship. So, ignoring the first part of his proposal as redundant, the second part is much more attractive:

No longer would senators sit as members of one political caucus or another. All 104 would be independent members. There would be no government leader of the Senate, no opposition leader. No more “whipping” senators into lock-stepping. Senators would not be permitted to attend or participate in the party caucuses of the House of Commons even if they choose to maintain a personal political affiliation.

To me, this is an apt description of sobriety. It also doesn’t preclude further reformations undertaken later on. To test this proposal, let’s return to Andrew Coyne. Where I do agree with Coyne is when he defends appointments, for some positions, by comparing senators to judges:

Judges train in the law for many years, and are selected for their impartiality. Senators may have no training whatever, and are selected for their partisanship.

Here we have ground that we can work with; appointments are acceptable under certain circumstances. On the lack of training, I’ll refer to my standard answer during the Liberal leadership, when Garneau was attempting to frame the contest as a squaring off of résumés: there is no résumé in the world that automatically qualifies you to be a legislator. There is nothing that objectively prepares you to accept the highest calling of representing the will of the people. Any suggested qualification would have to be subjective, unfortunately; this is why the criterion most often bandied about is “eminence” (a criterion, I might add, that is perfectly acceptable and effective for choosing our Governor General). On his second point, impartiality, I could not agree more.

We witnessed what was worth saving of our Senate in the impressive display put on by Conservative senators, gutting Bill C-377 and sending it back to the House of Commons. Love or hate the Senate, abolish, reform, or improve, we’re united in our surprise at a group of senators acting against their own partisan interests in a political climate where doing so is a minor miracle. This is the embodiment of sober second thought; so, for the sake of sobriety, let’s abolish parties in the Upper House.

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