Senate Reform (Redux)

08/24/2010

 
The recent Australian election has me thinking about electoral reform – and why not?  Prime Minister Harper himself, on his first visit down under, expressed the view that the Australian Senate was superior to the Canadian one because it was elected.  Of course, as his wont, the PM didn’t dig a lot deeper.  Otherwise he wouldn’t be so full of praise for the Australian system.  Not that it’s a bad system but not one that would warm the hearts of Canada’s Conservatives.  Mandatory voting has got to be more intrusive than a mandatory long form census. 

For those who don’t know, Australia has a modified Westminster-style Parliament just like Canada, that is, a bicameral system with an upper chamber called the Senate and a lower chamber titled the House of Representatives (our Commons).  The head of government is currently the Governor-General (though Aussies have strong Republican leanings and have often talked of replacing the office with a President) and the Prime Minister is the head of the government (usually majority) party in the lower house.  The Senate, like in Canada, is not a confidence house and can’t defeat the government – though it can defeat government legislation.  It also can’t initiate money bills (i.e. raise taxes or directly require the government to spend money).  It can lower taxes and it can indirectly result in the government spending money to meet policy goals.

However, it is the method of election that makes Australia significantly different from both Canada and the United Kingdom.  The two houses are elected with all of the HR seats and about half of the S but the method of election differs between them.  In the lower House 150 members are elected by votes in constituencies.  However, the Australian ballot uses a preferential system.  That is, each voter marks their ballot by listing their order of preference for each candidate – 1st, 2nd, 3rd and so on.  If a candidate gets over 50% when the first preferences are counted, he or she is elected.  But if no one gets 50%, then the candidate with the fewest votes is dropped and their 2nd place votes are distributed.  This continues until one candidate gets over 50%.  (Interestingly this is the same way the Hugo and Aurora science fiction awards are determined.)  That candidate can then say that more than half the voters prefer him or her to the loser.  Preferential voting tends to favour big parties and prevent little ones from winning many or any seats.  It generally produces small majorities for one side or the other.  This year, for the first time in 70 years, they have a minority, but other than Labour and the Coalition members, there is only one from the Greens and 3 or 4 independents – all former National Party members who rejected the Coalition.

As an example, suppose you were voting in a three party race in Saskatchewan.  You prefer the NDP candidate but could live with the Conservative.  The Liberal gives you the creeps.  You put a 1 beside the NDP candidate and a 2 beside the Conservative.  On election night, the first place results are Liberal 40%, Conservative 36%, NDP 24%.  In our current first-past-the-post system, the Liberal would win.  But suppose ¾ of NDPers feel the way you do.  Then, the final tally would be Conservatives 52%, Liberal 48%.  The winning candidate would be the one who initially finished second.  I use this example because this is pretty well what happened in Australia on a national level.  The Coalition (Liberal and National party) got more first place votes than Labour but Labour got more votes than the Coalition preferentially.  Hence both parties can (and are) claiming to be the people’s choice.

But what about the Senate you ask.  The Australian Senate is elected on proportional representation so that the number of Senators elected (selected from party lists made public before the vote) pretty much reflects the number of first place votes the party got in the election.  As a result, the Senate is a much more diverse house.  There neither the Labour party nor the Coalition is even close to a majority.  The Greens have 16 Senators and the balance of power.  And that is the way it usually is with the Australian Senate.  Governments may have a majority in the lower house but usually have to negotiate with other parties in the upper Chamber.  It has certainly led to some wild political deals and several constitutional crises.

So what would such a system do to Canada?  It’s not easy to predict with certainty but one can make some educated guesses.  Canada is a very different country than Australia.  Though there are certainly regional differences in our antipodal sister, they are not as marked as in Canada.  Australia has no equivalent to Quebec – or Alberta for that matter.  So over the short term, the impact on the House of Commons would be minor.  In Canada, over half of MPs are elected with over 50% of the vote in their ridings – so initially at least those won’t change.  Polls show that very few voters who don’t vote Conservative make them their second choice.  In Quebec, people who don’t vote BQ in the first place aren’t likely to support them as their second choice.

So, for the first election or two, the Liberals would do considerably better, the Conservatives and BQ somewhat worse and the NDP and Greens would pick up a seat or two.  But over the long term, we would tend towards the same system as in Australia.  Generally the Liberals and Conservatives would dominate – taking up positions just to the left and right of centre.  The other three second-tier parties would eventually be diminished in the House of Commons – though the Bloc might hang around longer that the other two.  For a while both the major parties might be stuck having to negotiate with separatists to get their programs through but I think majorities would be the rule.

But the other parties would never go away – because they would all win seats in the Senate.  In fact, there would be a proliferation of small regional or national parties all aiming for representation of their own views, not in the House of Commons but in the upper chamber.  Based on the last election we would currently have about 39 Conservatives, 28 liberals, 20 NDP, 11 Bloc, 6 Green and maybe one “Other” in the Senate.  That assumes the national vote applied – if PR was applied on a provincial or regional basis (reflecting the current purpose of the Senate) those numbers could be quite different.  And in the future there might be even more diversity.  Wouldn’t that be fun?

I wonder if that is what Steven Harper had in mind.

But, of course, these kinds of changes like any substantive Senate reform would require a constitutional amendment.  Good luck with that.
 

Reforming the Senate

01/31/2010

 
WARNING: This article is about reforming the Canadian Senate.  Reading it may result in narcolepsy, high blood pressure (if you’re from Alberta), contradiction of your preconceptions, and a rude awakening to the harsh reality of reforming anything at the Federal level.

For the last eight years I have worked as a policy advisor to the Senator of the Northwest Territories, the Hon. Nick Sibbeston.  He is a Liberal Senator appointed by Jean Chretien in 1999.  The views expressed in the following article are my views and do not necessarily reflect on his beliefs or opinions.

Working at the Senate was not the culmination of a life-long dream.  True, I do have a Masters in Political Economy, had worked in government for 12 years, including a stint as a Cabinet advisor, but I had been a New Democrat pretty much all my life.  My general view of the Senate, when I thought of it at all was that it was full of political hacks and should be abolished at the first opportunity.  So what happened?  The Senator in question had previously been the Premier of the Northwest Territories and I had been asked to be his executive assistant – plucked from the bureaucracy because of my analytical skills and writing ability.  For two years, I worked for and with him, writing speeches, travelling the North and attending numerous high level political and constitutional conferences.  These were heady times, including efforts to expand the constitutional rights of Aboriginal people (since left to the courts) followed immediately by the proposed Meech Lake Accord.  After our two years together, Senator Sibbeston and I went our separate ways.  I returned to the bureaucracy for four years and eventually left government to try my hand as an actor and playwright.  He left politics and went into private business.  But we stayed in touch and after he was appointed to the Senate in 1999, even discussed briefly the idea of me working for him.  But neither of us pursued it.

Then on September 13, 2001, I was sitting at home in Calgary, the Edmonton SF conference I was to have attended having been cancelled (Allen Steele was the guest of honour, I think).  I was talking to my wife about the events of the last few days.  By then I was working as the program director in an artists in schools program.  Although I thought the work I was doing was valuable, I suggested that maybe it was time to return to government and work on bigger issues.  At that moment the phone rang.  Senator Sibbeston wanted me to come to Ottawa to work for him.  What could I say?

At the time, I thought I’d work in the Senate for two or three years and then move into a policy shop in a Federal department.  As it turned out, I enjoyed the work, found it challenging and interesting and generally felt I was doing more good where I was than by moving somewhere else.  The hours were long when the Senate was sitting but flexible when it wasn’t.  I got to travel the country, met many interesting people, and worked on some very interesting files in Aboriginal policy, the environment and natural resources.  The money isn’t as good as I might make in the public service but overall the benefits outweigh the liabilities.

There, now you know why I think I have something to say about Senate reform.

Senate reform has been the mantra of western conservatives for more than twenty years.  The idea of the Triple-E Senate (equal, elected, effective) has many fierce adherents, especially in Alberta.  One of them even sits in the Senate.  I won’t try to do their arguments justice but generally they think Senators should be elected for fixed terms, that each province should have the same number of Senators (usually 10), and that the Senate should play a significant role in the Federal Parliament.  There seems to be some debate as to whether the current powers of the Senate should be retained or modified.  This is a significant issue – and probably the most contentious.

The current Prime Minister, the Rt. Hon. Stephen Harper, has proposed two pieces of legislation to amend the Senate.  With prorogation, both of these Bills will need to be introduced again.  That doesn’t matter though – neither had got past First Reading.  And not because the Liberal-dominated Senate had stopped them.  But I’ll get back to that.

The first Bill would limit Senators to a renewable eight-year term.  This is a significant change.  Currently Senators are appointed and stay in office until they reach age 75.  Theoretically, that means a Senator could sit for 45 years (you have to be 30 to be a Senator) though in fact terms of 10 to 20 years are most common, as Senators are often in their late-fifties to mid-sixties when appointed.  But the length of office is not what is most significant about the change.  It is the potential renewability of the term.

This bill would not create an elected Senate.  The Governor General on the advice of the Prime Minister (which she would never refuse) would still make the appointments and re-appointments.  It is the second Bill that deals with elections, though it doesn’t create an elected Senate either – at least not in the way most people think of elections, i.e. the people vote, the politician takes office.  The proposed Bill would establish advisory elections at the provincial level.  These would be similar to the elections now held in Alberta that led to the appointment of Senator Bert Brown – except it would be the Federal government holding and presumably paying for the elections.  Popular votes would create a list of possible appointees from which the Prime minister could, if he so chose, make recommendations to the GG for appointment.  I say could because he also could recommend someone completely different.  And if you think that would be political suicide, imagine the impact of a federalist Prime Minister appointing an avowed and open separatist from Quebec (or Alberta for that matter) to the Senate.

Still, the two Bills together would create a quasi-elected Senate with reasonable terms of office.  Who could object to that?  As it turns out, lots of people.  But so what?  Why shouldn’t the democratically-elected (albeit minority) government at least make an effort at piecemeal reform.  After all, that’s sort of how the American people got to elect their Senators directly – a process that took nearly 70 years to accomplish.  Direct Senate elections only became universal in the USA with the 17th amendment in 1913. 

Here’s the difficulty.  Any attempt to change the Senate through legislative means is almost certainly going to meet with a constitutional challenge.  Even if a province agrees with the proposed changes, they might well challenge it to prevent a constitutional precedent being set.  Several provinces have already served notice they will go to court if either of these Bills are passed.  And, the general view of constitutional experts is they will probably win on the term limits and almost certainly win on the elections.

Why would the government propose something that would almost certainly be struck down by the courts as unconstitutional?  Far be it for me to impute motive, but if I were a gambling man, I’d bet it’s because promising Senate Reform is far more politically beneficial than actually delivering on it. 

So what is the problem with these proposals?  The government argues it has the power to change the term of Senators.  They point to the amendment in 1965 that changed “life appointment” to one to age 75.  This was done by the Federal parliament acting alone and was considered constitutional at the time.  However, in a 1979 Supreme Court ruling, the judges determined that change was about as far as the federal government could go.  On a reference from Pierre Trudeau's government, the court said 9-0 that Ottawa could unilaterally do almost nothing to the Senate. In particular, Ottawa could not unilaterally abolish the Senate, change the powers of the Senate, alter the number of senators from each province or fiddle with the method of selecting senators.   The key element of that ruling was that the Senate was an integral part of the federal system (not just the federal government) and therefore changing it required a change to the constitution. 

But what about the change in terms?  Surely we could do that much.  But central to permitting the change from life to 75 was that it did not alter the fundamental character of the Senate.  Senators’ terms were long and they were non-renewable and so once appointed they were, at least in theory, independent of the Prime Minister who appointed them.  Because, he or she might still be in power when the time for reappointment came up.  Whether you think that is a good thing or a bad one, it does change the fundamental character of the Senate.  And that requires the agreement of seven provinces representing fifty percent of the population (See Part V of Constitution).  As for abolition, which the Prime Minister likes to threaten, many experts think that would change the Royal prerogative.  And that requires unanimous consent of the provinces.

Good luck with that.

That deals with the elected part of the Triple E.  Next time I’ll look briefly at Equal and Effective before throwing out some ideas for a really radical reform of the Senate.  And yes, they do include elections.  And they will have just as much chance of being implemented as Prime Minister Harper’s proposals.  That is, next to none.