The Canadian Senate: Abolition or Reform?

The Senate, in Canada, is very different powers than it is in the USA. The Canadian Senate has the power to block legislation that is passed in the House of Commons, but they do not have the power to amend or create legislation that appropriates public funds or imposes taxes. Based on this rationale the Senate is supposed to provide “sober second thought” as their model of debate is more flexible and allows them to examine legislation in greater detail and ensure that the House of Commons has not passed any problematic legislation. Furthermore, Senators are appointed from the party faithful behind closed doors, without any significant public scrutiny, and their term lasts until they are 75 years old.

However, in the last 25 years, the Senate has not exercise this power often and has tended to simply rubberstamp nearly all legislation that has been passed by the House of Commons. This has lead a large portion of Canadians, including Thomas Mulcair and the New Democratic Party, to call for the abolition of the Senate. For many, the Senate is just a wasteful, useless institution that we would be better off without.

Furthermore, in light of a very public Senate scandal involving the misuse of funds by current Senators such as Mike Duffy, the current Prime Minister Stephen Harper, who, earlier in his life had supported a Triple E Senate (Elected, Effective, Equal), has now suggested that he will not appoint new senators and that the provinces need to come up a solution to the Senate whether it be through comprehensive reform or outright abolition. The only major party to explicitly propose reform of the senate, as opposed to abolition have been the Canadian Liberals, who at this point in the run up to the October 19th election look to be a distant third behind the NDP and the Conservative Party of Canada.

Now, the likelihood of abolition of the Senate is slim as this would require an amendment to the constitution which requires negotiation with the provinces and tends to be an extremely arduous process which is politically dangerous because of the time and effort required, and the difficulty of achieving success. Abolishing the Senate is not something that the House of Commons and the existing Senate could pass by legislative fiat at the Federal level. But nonetheless it shows the popularity of the notion of the abolition of the Senate that one of the major parties is explicitly speaking out in favour of abolition, while another major party seems to be suggesting that abolition is a legitimate option if reform proves impossible.

All of these issues around the Senate raise the question of whether reform of some kind is preferable to abolition. While, I support many elements of the NDP`s platform, I think that even if the Federal government could easily abolish the Senate without having to pursue constitutional amendment this would be a misguided choice. This would be misguided as Canada`s House of Commons by its very nature requires a check on its authority and making the notion of sober second thought effective through the Senate would provide this check. Furthermore, there are no strong reasons, in principle, why we could not make the idea of sober second thought effective through reforming the Senate.

The partisans of abolition will typically say that there are a couple of factors which lead to the necessity of abolition. The first of these is that the current incarnation of the Senate does not add much value as it generally just rubberstamps legislation and thus it is a waste of taxpayer money to support this body. This critique is valid of the current Senate, but it mistakenly assumes that reform could not render the Senate more useful, so on its own it does not establish that Senate abolition is necessary.

Similarly, one other reason proponents of Senate abolition put forward is that the body is unnecessary, as the only kind of bodies that have a legitimate claim to rule, are ones that are democratically elected and the Senate is not. Furthermore, these partisans of abolition would say even if the Senate were elected, this would just create unnecessary duplication between the two chambers, and that a single elected house can provide sufficient popular control through electoral politics to ensure that legislation that is passed reflects the will of the people. Consequently, even an elected Senate would not be particularly valuable, as it would just duplicate the function of the House of Commons.

Now, defenders of an elected Senate have legitimate responses to these criticisms, but for the sake of brevity I will not get into these. I think if we properly understand the role the Senate is supposed to play today, we will see that the direction of reform lies not towards an elected Senate, but to reforming the Senate along democratic lines that avoid the demagoguery and partisanship inherent in electoral party politics. I have already explicitly responded to the first argument in favour of Senate abolition, but in order to respond to the second we need more deeply understand the nature of Canada`s governing system and what democratic function the House of Commons actually plays.

As I have mentioned in earlier blogs, the Canadian political system while democratic, tends to put a lot of power in the hands of the Executive and of the Parties. Due to the strength of party discipline in Canada, when voting on bills that involve appropriation of public funds or taxes all MPs that belong to parties are forced to vote with their party, rather than in the interests of their constituents. If MPs refuse to follow the party line when they vote they are expelled from the party and must sit as independents in the House of Commons.

Furthermore, the Prime Minister who fulfills the Executive function of the Federal government has a great deal of power. He has the power to select the Cabinet, who are then responsible for drafting most bills and largely control the legislative agenda, and while the Governor General formally selects Senators he or she does so on the basis of the guidance of the Prime Minister. Thus, in the context of a majority government, the Prime Minister is more like a constitutional monarch than anything else, as the only thing that blocks his will are existing laws and the courts. His party does not have power over him or her, and he largely drives the form that the Senate and Cabinet takes and consequently controls the direction of legislation.

Also, given that Canada adopts a first-past-the-post voting system Members of Parliament do not need to get a majority of votes to win a seat, but merely a plurality of votes to get their seat. In aggregate this tends to mean that the ruling party may only have received 40% of the vote or less and yet have a majority of the seats, because they were able to get the plurality of votes in enough ridings. However, the NDP, the main proponents of Senate abolition, have also come out in favour of electoral reform to move to a more representative and fair form of voting. So while the presence of the first-past-the-post system currently does impact the way that the House of Commons operates I will avoid including this element of the current landscape and assume that Senate abolition, or Senate reform, will go along with a change to fairer form of democratic representation in the House of Commons.

Given the strength of the Executive in Canada, and the situation of party discipline a unicameral parliament, even one that was very representative of the people`s party preferences, would still be deeply problematic and require a check by a less partisan body. In a situation with strong party discipline what dominates a legislative body is not a conversation between citizens elected to represent their constituents. Instead what is dominant is a battle between factions represented by the party apparatus, which tend to be dominated by elites of all kinds. What decides how a representative should vote is not his or her own judgment, but the ideological commodity that the party is trying to sell to the people, and this does not capture the spirit or essence of democratic governance as it is a form of elite rule.

Now, there are certainly merits to a system with strong party discipline as it is quite expedient and avoids the tendency in systems with weaker party discipline for people to be bought off through amendments to a bill as people must follow the party. But the House of Commons fails to exemplify the spirit of citizens coming together to deliberate about what is in the best interest of the people; this characteristic seems to me to be essential to democracy and any system that lacks it will be the worse for it. For what makes democracy the best form of government is not that 51% rule over 49%, but that under the best conditions it can represent a form of rule which is based on persuasion in which we come together to figure out the best way of doing things that serves the public interest. In this form of rule politics is not a war by other means, but a form of cooperation towards our common ends. A form of rule constituted by dialogue and cooperation seems far more reconcilable with individual freedom, than one in which the largest subset of the population rules, as the rule of an arbitrary majority is not necessarily that different from the rule of a tyrant. No doubt, my notion of dialogue and cooperation aimed at the common good is quite vague, but I think it captures some of our fundamental intuitions about democracy, and thus any form of democratic governance that fails to deal with those intuitions should be found wanting.

Unlike the House of Commons, if reformed the Senate could be a governmental body that involves citizens coming together to cooperatively provide sober second thought for legislation passed by the more partisan House of Commons. Of course much reform would be required in this area for this to occur as currently Senators tend to be elites and representatives of parties, rather than ordinary citizens, and are selected for exceedingly long terms. One way to develop a senate that captures the spirit of citizens coming together to examine legislation judiciously to provide oversight to the House of Commons is the notion of using random selection, or what is commonly referred to as sortition or allotment to select Senators. We tend to see democracy as lying in electing people largely because our consciousness has become so commodified that we see our most fundamental trait as that of choosing a product, or a candidate, but arguably a more democratic approach is to have positions of authority occupied based on the principle of drawing lots. This is the approach that Athens widely used, and we find a modified form of it sufficient for jury selection. This approach ensure that not only the charismatic, wealthy and best speakers rule, but all segment of the populace participate in rule, rather than merely participating in elections. Therefore, a principle of allotment could be setup to ensure that the Senate was representative in terms of gender, ethnicity and class, and not directly connected to party politics. Furthermore, Senators could be selected to participate over short terms, with new Senators being selected thereafter. This form of selection ensures Senators do not have to worry about re-election or loyalty to a party; they need only exercise their best judgment and work with their fellow senators, rather than trying to score point for their party or themselves, and thus they are truly able to provide sober second thought. This proposal, is very much influenced and based on the proposal that Claudia Chwalisz wrote about in the Globe and Mail, earlier this year in her article entitled “Replace this archaic institution with a citizen`s senate,“ and would serve as an important non-partisan democratic counterweight to the legislation put forth by the partisan and politically motivated House of Commons.

The proposal put forward by myself here, and Chwalisz in her article, speaks to the fact that the problem with our Senate is not that we have no need for a body to provide sober second thought on legislation, but that the current incarnation of the Senate because of its institutional foundations cannot play the role of providing oversight and sober second thought. Hence a reformed Senate need not simply duplicate the role played by the House of Commons, and thus we have further options between abolishing the Senate, making it elected or leaving it as it is now.

Works Cited
Geddes, John. “Senate reform? There`s just the teensy problem of the Constitution.” MacLeans. 31 July 2015: Web.
Chwalisz, Claudia. “Replace this archaic institution with a citizen`s senate.” The Globe and Mail. 15 June 2015: Web.
Milewski, Terry. “Abolition or attrition? Mulcair and Harper offer different paths to Senate end game.“ CBC News. 25 July 2015. Web.
Bryden, Joan. “Trudeau’s Senate Plan Lauded, Harper Dissed By Western Think Tank.“ Huffington Post. 31 January 2014.


The Canadian Political System: Expedience, Efficiency and Democratic Legitimacy

Canada has a democratic parliamentary system which concentrates power in the Prime Minister, and his Cabinet. While the Canadian system of government is deeply imperfect much of the dysfunction does not originate within the system itself, but with a failure to understand what is required to make this system operate in a fair and judicious manner.  Canada has pursued a combination of policies including party discipline and single member plurality voting which exacerbate the lack of limitations that are placed on the Prime Minister and the governing party, and this has led to laws being created that reflect the interest of the ruling party rather than the public good. In order to ensure that proper democratic governance occurs in Canada it is necessary to remove either party discipline or replace single member plurality voting with proportional representation and ensure that our citizenry and politicians are more public spirited and willing to cooperate.

Canada has a Parliamentary system in which the leader of the parties that wins the most seats in the House of Commons at the Federal level becomes Prime Minister. Although there are rare  exceptions to this where the leader of a party that merely wins the plurality, as opposed to the majority, of seats within the House of Commons does not end up being Prime Minister as the Governor General has allowed a collection of other parties to form a coalition government and choose a Prime Minister to lead that government.

Canada does have a Senate, but it is appointed and its role is mostly symbolic and while it can force the House of Commons to review legislation, and provide “sober second thought” this power has rarely been exercised.  The Senate is broadly viewed as a useless institution in its current form, and there is a mix of proposals to either abolish it, or reform it to make it an elected, representative body.

The Prime Minister is the center of executive and legislative authority within the Canadian state. He or she holds a large degree of executive authority like the President in the USA, but the Prime Minister also selects the Cabinet, usually from the pool of elected Members of Parliament (MP), and has traditionally been allowed to control the Cabinet, which holds a large degree of legislative authority. Consequently, there is no strict separation of executive and legislative authority. This means that a Prime Minister in Canada can not only determine which people are predominantly responsible for deciding which laws are proposed, but also can determine the nature of the law being created.  Bills created by the cabinet do of course have to achieve a majority vote within the House of Commons, and be approved by the Senate, but still we can see how much power lies in the hands of the Prime Minister.

Currently in Canada, and for the majority of our past, we have had “majority governments.” This occurs when the party that wins the most seats in the House of Commons wins a majority of the seats. While there are votes where MPs are allowed to vote according to their own conscience, these votes are a rare exception as opposed to the norm; MPs are expected, unless otherwise told, to vote the party line in any area that affects budgets. This is known as “party discipline.” If a MP does not vote the party line they may have to cross the floor and sit as an independent or join another party.  Consequently, in a majority government situation the Prime Minister is essentially able to pass any laws he wants over his term in office. Thus, in the situation of a majority government, the Prime Minister is more of an elected constitutionally limited monarch than anything else, as he can pass any law he wants and the only things that are holding him back are resistance of his own party or the courts overturning legislation on constitutional grounds.  Consequently, gridlock is rarely a problem in Canadian politics. Instead the problem is the development of extremely partisan policy that can develop because of the sheer authority of the governing party and their leader.

A further complication within the Canadian system is the use of the single member plurality system of voting or “first past the post.” In this system MPs are elected to represent geographic constituencies and the candidate with the plurality of votes within the constituency wins the race and receives the seat. This compounds the problem of party discipline because if a MP is forced to vote with their party, they are not fully able to represent their constituencies’ interests. In addition the regional popularity of political parties means that often the distribution of seats in the legislature does not reflect what people voted for. For example, the NDP may get 15% of the vote in one province, but receive no seats in this province because in no one constituency were they strong enough to get a plurality of votes.

So, in the Canadian system we see a situation in which there is substantial centralization of power in the Prime Minister. The problem with this as noted above is that there have not been many checks on his or her authority throughout Canadian history. But the failure to understand the nature of this system is indicated by the use of single member plurality voting and party discipline in conjunction with the centralization of power in the Prime Minister. In itself there is nothing wrong with a strong political leader, party discipline, or single member plurality voting, but taken together they magnify the worst flaws of the Canadian system. When you have a Prime Minister with a large degree of authority who can control what policy is proposed it only makes the problem worse when he or she can control what his party votes for and the distribution of seats within the legislature does not actually reflect what people voted for.

In this sense, Canada has two plausible options within its existing system, neither of which seems to be on the horizon, which could at least help correct the problem of the excessive authority of the Prime Minister. One approach would be to get rid of party discipline, such that policy would have to be created that would only get votes if it was in the interest of constituencies. This would limit the power of the Prime Minister by forcing him to create laws that were more reflective of the public good.  Likewise if party discipline is to be maintained it probably makes sense to go to a form of proportional representation in which the distribution of seats in the legislature actually reflects the popular vote. It is very rare for a party to get the majority of votes in Canada, but they often get the majority of seats, and so if the distribution of seats reflected the popular vote this would ensure that the Prime Minister and his party would have to cooperate with others and make policy that was in the interest of a majority of Canadians, rather than in the interest of the party and their supporters.

Some Canadians are very apprehensive about the notion of limiting the power of the Prime Minister as minority governments (governments in which the governing party holds less than half of the seats in the House of Commons) in Canada have often been ineffective and rife with gridlock.

It is certainly expedient to keep the current Canadian system as is, as the system makes it very easy to pass laws, but unless we see the point of democratic governance as expedience we might want to demand more from our politics.  In a strictly procedural sense the laws passed within the current system are legitimate as the process through which they are typically passed does not violate any rules of the system. But in another sense they seem illegitimate in that if laws do not reflect the overriding public good or at least the interests of a majority of citizens, they do not honour the spirit of democratic governance, as democratic governance is supposed to guarantee that the public good is served by ensuring policy serves the interests of the majority of citizens. This is of course a substantive as opposed a procedural conception of legitimacy, but that does not mean we should pay no heed to it.

This raises the question of what kind of democratic governance would meet the bar of this substantive conception of legitimacy in Canada. I think either of my proposals would, provided that the citizenry and MPs began to exhibit a greater degree of public spiritedness, and willingness to collaborate as this would ensure that law would be developed that took into account more than one’s party’s interests.  However, some might argue that such a system is too imperious, and that we should try to develop systems that create substantively legitimate democratic governance by only relying on people to act on their enlightened self-interest. While it is in principle possible that a system based on enlightened self-interest could generate law that meets this substantive conception of legitimacy, the history of Canada and elsewhere seems to suggest otherwise as systems based on enlightened self-interest typically create factional politics and policy. So we ought not to hang on to the desire to have a political system that can operate by only asking of its participants that they act in their long term self-interest. This means that those of us who accept the substantive conception of democratic legitimacy described above need to recognize that in order to meet this notion of legitimacy in Canada, politics will have to ask more of its participants than enlightened self-interest; instead, it will have to ask them to act as citizens.