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. http://www.macleans.ca/politics/ottawa/senate-reform-theres-just-the-teensy-problem-of-the-constitution/
Chwalisz, Claudia. “Replace this archaic institution with a citizen`s senate.” The Globe and Mail. 15 June 2015: Web. http://www.theglobeandmail.com/globe-debate/replace-this-archaic-institution-with-a-citizens-senate/article24945037/
Milewski, Terry. “Abolition or attrition? Mulcair and Harper offer different paths to Senate end game.“ CBC News. 25 July 2015. Web. http://www.cbc.ca/news/politics/abolition-or-attrition-mulcair-and-harper-offer-different-paths-to-senate-end-game-1.3167577
Bryden, Joan. “Trudeau’s Senate Plan Lauded, Harper Dissed By Western Think Tank.“ Huffington Post. 31 January 2014. http://www.huffingtonpost.ca/2014/01/31/trudeau-senate-harper-think-tank_n_4700454.html

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A Polemic on Modern Liberal Democratic Politics

It seems fairly obvious that a political system in a society needs to have a way of guaranteeing that the long term interests of the society, including the interests of future generations are taken care of and respected (intergenerational justice.) This seems to simply flow from the recognition that all other things equal we want a society to develop to the fullest of its potential, and to be structured so that future generations are not sacrificed for the present desires of existing generations.  According to some, like Burke, one way of ensuring this is through the presence of an aristocratic land-owning class. This class is tied to their estate and has a long term interest in the well-being and health of their state as they want to pass on a fine legacy to their descendants.

However, nothing like this class exists in modern liberal democracies, so what methods do liberal democracies have to ensure long term interests and intergenerational justice? One method is through trying to create institutions that serve to ensure that these long term interests are safeguarded. However, I will argue that in themselves institutions are not enough to ensure long term interests and intergenerational justice whether in an aristocracy, mixed constitution or a democracy. Instead, a particular kind of culture and public ethic needs to exist that actively condemns sacrificing genuine long term interests to immediate self-interest. As such a culture will help to ensure the long term good of the society is actively maintained.

To serve long term interest and the justice of future generations some modern liberal democratic states have tried to create certain institutions to secure these goods. One such example of this is the US Senate.  In contrast to the House of Representatives in which Representatives have a two year term US Senators have a term of six years. Part of the justification of having these two bodies separate is that the House of Representatives would tend to be more dominated by the needs of political expediency as members of this body have to be extremely concerned with how they vote as their term is so short that they are likely to be punished in an election if they vote against their constituent’s avowed interests. Consequently, members of this legislative body would be more likely to simply vote in a way that got them re-elected rather than in a way that necessary served the long term interest of the community. Contrastingly according to this justification due to the fact that senators have a six year term they are more free to vote according to their best judgment about the interests of the community as their term is long enough that the senator can show their constituents that while their constituents may have initially disagreed with the senator’s actions, his or her actions are actually supportive of their interests, and the long term interest of the state.

While this justification of the US Senate is somewhat plausible, given the current state of US politics it seems that this institutional structure is not enough to secure intergenerational justice and long term interests.  Currently, in the US, at all levels of government including the Senate political expedience seems to dominate over genuine deliberation concerning long term interests. The deliberations within both the lower and upper house have become but theatrical precursors to an election in which senators strut before voters and make sure that their actions translate into electability rather than ensuring long term interests and intergenerational justice.

If the example provided by the US Senate is at all typical then it seems that institutions structured in a particular way are not enough to ensure some semblance of intergenerational justice and the safeguarding of long term interests. Even when these institutions are present we tend to see politics in modern liberal democracies dominated by political game playing that serves to ensure an official is re-elected rather than that long term interests are taken care of.

One element that can ameliorate this problem in modern liberal democracies is a culture and public ethic that condemns political activity that puts immediate self-interest ahead of the pursuit of long term interests and intergenerational justice. The trouble with modern liberal democracies is not just that institutions are not perfectly setup but that as a whole we have come to accept the unabashed pursuit of self-interest within the bounds of law as legitimate. Just as we do not condemn someone for leaving a company at a challenging time for that company because they have received a tempting job offer, so to in politics we do not condemn voters, or politicians for pursuing their immediate self-interest at the expense of long term interests and intergenerational justice. There is a mild distaste for the crass pursuit of self-interest by politicians, but by and large we do not condemn them and view these agents as having violated some important principle. Instead we see it as the norm for politicians to act this way, and while this norm may bother us we are resigned to accept it as natural.

However, if a culture condemns political activity that pursues immediate self-interest at the expense of all other goods and positively affirms the value of defending long term interests and intergenerational justice, then this would help to ensure that long term interests and intergenerational justice were taken care of.  In this kind of culture all will be more likely to recognize the value of the goods of long term societal interests and intergenerational justice, and act from these principles as the culture affirms them, and consequently people would be honoured for ensuring long term interests and intergenerational justice, and dishonoured for sacrificing these goods before the goddess of immediate self-interest. Therefore, a certain kind of culture and public ethic would help to ensure that politics in a liberal democracy serves long term interests and intergenerational justice.

Similarly, this point does not merely apply to liberal democracies, but to other forms of government as well. What ensures that long term interests are served in an aristocracy is not the presence of a landed gentry itself,  but rather the presence of a landed gentry that recognizes that as powerful members of their community they have the responsibility to ensure the long term interests of their state by taking care of their estate and subjects. If an aristocrat in an aristocracy were to act based on crass self-interest they would not ensure long term interest and intergenerational justice as there is no reason inherent in being a member of the landed gentry that determines that one will take care of one’s estate and subject and pass on a fine legacy to one’s descendent and future subjects. What ensures that the landed gentry secure long term interests and intergenerational justice is the culture and public ethic that they act from, not the institution of the landed gentry itself.

However, in putting forward an argument for this kind of political culture that condemns sacrificing long term interests for immediate self-interest we are faced with a huge challenge on three fronts. The first and most obvious challenge is how such a culture comes into being while respecting the independence and freedom of persons. Many historical attempts by states to make a certain kind of culture have been utterly disastrous and cruel such as the Terror in the French Revolution and attempts to assimilate groups like Canadian First Nations. This should make us very cautious about how state policy is used to try to purposefully shape a culture.

The second challenge is that acts that pursue the long term interest and intergenerational justice are not immediately transparent. It is fairly easy for a politician, voter or activist to do something that only furthers their immediate self-interest and yet present it as something that furthers long term interests; in the case of a politician they just need to espouse an argument that shows how their actions will serve long term interests even if this argument is particularly facile or weak. Consequently, it is not always easy to determine when we are dealing with overt acts of immediate self-interest versus at the expense of long term interests and acts that are meant to pursue the overall good of the community including its long term interests and intergenerational justice.

The other challenge is more particular to modern liberal democracy, and that is that these societies carry a heavy mark of consumerism, and consumerism is dominated by the pursuit of immediate self-interest and instant gratification. This raises the question of if the kind of political culture that I am gesturing towards is compatible with our current consumerist economic way of life as there is something quite schizophrenic about rejecting the uncontrolled pursuit of self-interest within the bounds of law within the economic sphere, while rejecting it in the political sphere.  Unfortunately, if it turns out that these two modes of activity are incompatible then we will have to choose between a politics that can help us secure intergenerational justice as well as long term interests and the maintenance of our current economic practises.