The Senate Scandal and Reform

I started the following article back at the height of the Duffy Scandal (June) unfortunately I got busy with other things and now have only had the time to update and finish the piece. It isn’t what I wanted it to be but rather then just scrap it I figured I would post it. I hope people find it enjoyable and informative.

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For months Ottawa has been gripped in scandal (the actual scandal started even further back ) over multiple senators claiming improper housing/travelling expenses to the tune of tens of dollars each. The resignation of the PM’s Chief of Staff, Nigel Wright after the revelation that he paid Senator Mike Duffy $90,000 so he could repay improper spending took it to another level. This was followed by the discovery that the Conservative dominated sub-committee (Mike Duffy was a member of the Conservative Party) changed a report on his improper expense claims. To the universally panned  speech that was given to the Conservative caucus by the Prime Minster that was supposed to smooth things over and right the ship. This week was one of the most damaging of the seven year tenure of Prime Minister Stephan Harper. That being said, if there was a positive to came out of this week it was a renewed call for Senate reform in Canada. The question is can it be done?

Senado / Senate

Senado / Senate (Photo credit: Marcio Cabral de Moura)

For those who are not familiar with the Canadian Senate, it theoretically functions as a chamber of “sober second thought” on the legislation that emerge from the House of Commons. Designed around a system of regional presentation where the four Atlantic provinces hold more seats then the four booming prairie and western provinces it is supposed to also protect the interests of the smaller voices of confederation.  Unfortunately its functionality in the 21st century is certainly far from its potential. Not to paint all senators with one brush the so called “Red Chamber” is populated with political appointees and party hacks who have earned their position via patronage from their political masters. Once put into the Senate the new senators are hardly hard done by and many of them hardly show up to work.

Unfortunately it is this combination of overpaid political appointees and regional representation coupled with the enshrinement of the Senate within the Canadian constitution means that vested interests prevent a quick and easy solution. Traditionally this leaves the only path forward to be a constitutional amendment to correct the senates flaws. Of course opening the Pandora’s box of the Canadian constitution would likely bring up issues from coast to coast to coast ranging from aboriginal land and treaty rights, to Quebec quasi-nationalist tendencies, to the revenue sharing agreements that glue the provinces together. The last attempt at a constitutional accord was the Meech Lake Accord in 1990 which tried to bring Quebec into the constitutional fold while addressing many issues (including Senate reform) in one package ended in failure. This agreement was eventually scuttled following the failure of Manitoba to pass the document in its Legislature and was followed up be referendums on separation in Quebec 1995.

If Reforms Happens what are the Options?

For decades reform minded individuals have called for “Triple-E senate” with the E’s standing for Elected, Equal and Effective.  On the other extreme there are those who see abolition as the best option. Both of these reforms face the same stumbling block, the regional representation of the Senate. The small provinces fear being drowned out in the representative House of Commons by larger provinces, so they will oppose the removal of the Senate as it gives them a means to overcome their diminutive populations. On the flip side, the large provinces want to see a more representative institution or see it abolished all together as the senate as it stand theoretically constrains them in confederation. Then there is Quebec, under the current senate seat distribution it holds approximately 25% of the seats and it is unlikely to be willing to give up this advantage in order to protect the rights of Quebecois in Canada. The problem is with senate approval sinking to all time lows with polling for the CBC showing only 6% of Canadians wanting to leave it as is while a Globe and Mail poll found 4%.

As has been point out by numerous pundits and experts on the subject, the Senate does theoretically holds significant power in the Canadian democratic system (can do all the same things as the House of Common but initiate budget bills). The only reason why it does not wield its power is largely due to the fact that it lacks legitimacy in the eyes of the people. An unelected body, blocking legislation from an elected body is something of the 18th or 19th century not the 21st. Should election of senators come to pass (Alberta already does elect senators and Prime Minister Harper has said he would appoint any Senator that is elected) the hope for reformers is that you would then find a legislative body that suddenly holds true legitimacy and for some of its members accountability.

Unfortunately If you believe that by just electing senators the problems for Canadian democracy would disappear you are sorely mistaken as what would emerge is a legislative branch that is grossly misrepresents what Canada is today. An elected Senate would feature New Brunswick a population of approximately 751,000 people having 10 senators while British Columbia with 4,400,000 people only having 6 senators. Unlike the United States where each state is equal nothing like that exists in Canada. What you would then have is two chamber of legislative government (possibly controlled by two different parties) battling for supremacy. Although the House of Commons holds the legislative upper hand via the ability to initiate spending bills they would still have to be approved by this disproportionately representative senate.  In order to gain this approval various regional or political concessions would have to be made (most likely to the over represented Atlantic regions) resulting in dysfunction.

This is the conclusion that Mathew Mendelson of the Mowat Center recently published paper on the senate reform. His solution to the situation is to use constitutional reform to de-power the senate as a first step to wider reform is an elegant one but it still faces the same insurmountable hurdles (constitutional negotiations).

A some what contrarian  position comes from former member of the British House of Lords, Conrad Black. In his recent commentary on the issue he in fact calls for increasing the size of the Senate. His plan proposes for the senate to be expanded to 180 or so members from the existing 100 divided into three different groups. 60 of these senators would be appointed in a manor similar to those of today with the Prime Minister selection individuals with careers of distinction. The second group of 60 who are appointed under the same criterion as the federal group divided among the provinces according to population and selected by their premiers. Finally, 60 sentators would be selected by joint federal-provincial commission on merit and distinguished careers.  All senators would be appointed and serve 6 year renewable terms (until the reached 80 then only 2 years terms).

On the other extreme is abolition which is the primary position of the opposition New Democratic Party and has become the nuclear option for frustrated reformers and some premiers. The Canadian Tax Payer Federation has started a campaign for a referendum on senate abolition which they launched with a 30 foot tall Mike Duffy balloon. It is true that the Senate it does still play a role in Canadian democracy as senate committees are often tasked with various long term research and fact finding initiatives. Generally speaking the value of these efforts have been degraded within political circles and in the eyes of the public in light of scandals. Abolition also allows for the interesting opportunity of rebuilding the senate for the 21st century. Ted  Morton proposes that once abolished, many of the ingrained interests in the existing senate will lose their voice and with them gone  Once gone, a clean sheet of paper could be used to plan a senate the gives fare and proper representation to province and regions, in an elected manner for the 21st century. I don’t claim that this option or the negotiations that accompany it would easy but if they fail, nothing has been lost except for an ineffective and corrupt senate.

What is to be done? 

Honestly there is no “right” answer to the Senate’s problems and most of the plans are just pie in the sky thinking with little substance. All of the options carry their own pros and cons along with the potential of dramatically altering the political landscape of Canada. For those hoping that the Speech from the Throne that will occur this fall will result in swift action you will be sorely disappointed. The Canadian Government has already put questions regarding the Senate to the Supreme Court and ruling isn’t likely until next year. At the time of the ruling regardless of what it is, we will likely be only 1 year from a Federal Election (slated for October 19, 2015) meaning that the Senate will likely not get settled before Canadians go to the ballot box. Ideally, one of the best things that could occur is a “Senate Election” where the parties stake a position and take it to the voters. Unfortunately my confidence in the political parties to do with is in short supply.

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