Fixing Elections

Professor Denis Smith has an outstanding opinion piece in today’s Globe about the essential fraud at the heart of Harper’s “fixed election date” bill. As Smith points out, since the first clause of the bill says “Nothing in this section affects the powers of the Governor-General, including the power to dissolve Parliament at the Governor-General’s discretion,”  the prime minister’s power to choose an election date short of the new four-year limit is unchanged.

That’s what was always so stupid about the fixed-date law. Canada already *had* a fixed election date law, written right into the Constitution, namely, s.4(1) of the Charter of Rights and Freedoms, which reads (my bold).

(1) No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs of a general election of its members.

So what did Harper do? With his bill, he basically just promised to drop the writ on a specific date four years into his mandate, unless the opposition brought him down first. Or… unless he decided to do otherwise. Which is to say, the fixed election law was never a departure from the traditional practice, but an endorsement of it.

Here’s on old blog post of mine on the topic.

***UPDATE:Or I could have just skipped the wordifying and done as Wells did, and just simply called it a “doofus-brained fixed-election act.” Which it is.




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Fixing Elections

  1. “the essential fraud at the heart of Harper’s…”

    I’m starting to get a bit tipsy, so i’ll leave it at that.

  2. You’re quite right, Andrew. But then, the same could be said for any law. All laws are in effect only as long as the government of the day decides they should be. When it doesn’t, it changes the law.
    What’s breathtaking here is the speed of it. The act in question was signed into law in May of ’07. Yet here we are only a little over a year later, and the Tories are throwing it in the wastebasket. That’s not a comment on the law, in my opinion: it’s a comment on them.
    As you and others have pointed out, the law wasn’t strictly binding, since constitutionally the GG’s discretion could not be constrained. But it was pretty clearly to be taken as a promise, a solemn declaration of intent – the GG proviso was supposed to be pro forma.
    And like virtually all Conservative promises nowadays, it turned out to mean nothing.

  3. The optics of all this is not good for Harper. Dion is touring the country on the Green Shift, and Harper is running around threatening elections. How is this good strategy?

  4. The fixed election date law reminds me a lot of the veiled voting brouhaha. It’s basically a law that a bunch of politicians decided to say in public does X, when in REALITY it does nothing of the sort (like when politicians were trying to convince us that they’d passed a law that said voters were required to show their faces at the polls when the law they passed not only didn’t require voters to show their faces at the polls, it didn’t even provide a logical reason as to why voters SHOULD be required to show their faces – given that it didn’t require voters to show any ID to which their faces could be compared either).

    I think Mr. Coyne is correct that the lack of a constraint on the GG was supposed to be pro forma, that it was supposed to impose a constraint, morally, where an actual legally binding constraint is impossible constitutionally. It disturbs me even more however that this is (at least) the second time in the life of this government that politicians have told us that a law was intended to do X; then tried to make us all believe that the law actually did X; and then continued to try to keep us all believing that the law does X until it became blatantly obvious to EVERYONE that the law does nothing of the sort, and never did.

    In the case of the veiled voting, I’m at least willing to suspend my disbelief and take it at face value that our politicians actually meant the law to do what they SAID they meant it to do, and that they were just horribly incompetent when it came to actually writing a law that conformed to their intentions. That they then simply passed the law – apparently without reading it – without noticing that they’d written a law that didn’t remotely do what they were telling everyone they meant it to do. In the case of the fixed election dates though, I can’t even be comforted by blaming it all on laziness and incompetence. They simply HAD TO KNOW that the law was meaningless. They just didn’t care. The optics of setting “fixed election dates” were simply more important than the fact that the law didn’t actually fix election dates.

    So for me, I can’t get too upset by the notion that if Harper forces an election he’s essentially breaking a promise he made to the Canadian people. I mean, I agree with Mr. Coyne that this would essentially show that Mr. Harper made a promise that meant nothing. However, given that I knew at the time he made the promise that it meant nothing, I can’t get too upset after the fact to find out that I was right.

  5. Would it be against the law if the opposition forced an election ahead of time?

  6. I don’t see what the big deal is. Should we have to settle for another year of dysfunctional party politics in Ottawa just because a silly little law with no bite says so?

    I would have sent most MPs back to daycare and/or psychoanalysis a long time ago, because the way most of them have been acting isn’t helping Canada at all.

    So why not roll the dice and see what happens?

  7. The big deal is that it makes it obvious just how little respect conservatives have for any legalities that might constrain them — at least the spirit thereof, if not the letter. (Though the in-and-out thing suggests the lack of respect applies to both)

    For those of us who were watching, this isn’t news, but for the rest of the country it might be that long needed wake-up call.

  8. I feel vindicated. I have been arguint for proponents of fixed election date legislation. Our system of government and constitution cannot accommodate this. I never understood how it can be seen as undemocratic for a prime minister to go directly to the people of Canada. Only people who think Canadian citizens are dumb puppets can hold that argument – Conservatives, mostly. Boulechite promise and boulechite law, IMO. In the same league as the ‘free’ vote on same sex marriage. I still dare this governement to table a legislation and let itself (the cabinet) vote freely against it.

  9. The fixed election date is a good example of making law based on one case. I think Harper wanted to implement this to stop majority governments from calling an election really early, like Chretien in 2000, or if they do call an early election they pay a price with electorate.

    And now Harper will be hoisted on his own petard if he calls an early election. Personally, I think Harper will do what he can to get opposition to vote against confidence motion to bring down the government and if he can’t arrange that he will go to GG himself and ask her to dissolve.

  10. No – it’s a good example of passing a law for no other reason than achiveing a superficial headline. Harper’s changes to the elections act are no different than his silly “age of consent” legislation. Anyone with a brain can read it and understand that it has no impact whatsoever on the state of the law in Canada. But the conservative base genuinely believes that raping shildren was somehow ok until the bill’s passage. Just like the conservative base genuinely believed for a decade that the only reason they were losing elections was the fact that they were being held.

  11. I can’t get over how much a dumb law like fixed elections reveals a very limited, USA-centric outlook by this bunch of amateurs who current blight the halls of power. Why would you impose an unweildly ‘fixed elections’ date on a parliamentary structure? Who else has fixed elections dates, from whom this crowd would have taken its inspiration?
    It’s just like the new Conservative policy of not requesting clemency for people condemned to death ‘in a democracy.’
    Quickly, name one other democratic country that has the death penalty?
    Harper’s an American wannabe.

  12. Took the media long enough to point out the obvious, I have to say. Of course, at the time the legislation was passed, no one could have guessed that Stephen Harper lacked the integrity to act in an unprincipled fashion. Goodness no.

  13. Here’s an interesting article on partisan reporting in television due to a ratings bias (I presume Maclean’s marketing people know whether this also applies to print media)

    http://www.nytimes.com/2008/08/22/business/media/22adco.html?ref=business

    This fits with a theory I have that Democrats/Liberals are in fact more popular with the general public than Republicans/Conservatives. This would fit with conservatives claims of a liberal bias in media.

    Rather than some dark conspiracy, however, I think this bias can be explained by market forces: people want to hear the liberal message that the government can fix things for them rather than the more common conservative message that they should take responsibility for their own happiness and prosperity.

    I’m not sure why this bias doesn’t consistently turn up in elections though. Maybe people are more realistic when they’re voting than when they’re looking to be entertained.

  14. Of course if you actually read the article, it contradicts what I said :)

    O’Reilly gets 2.25 million viewers on Fox, but Olbermann on MSNBC gets only 1 million.

    Maybe liberals read and conservatives watch tv :)

  15. I’m not anything approaching a constitutional scholar, but could it be argued that the fixed election date constrains the advice the Prime Minister can give rather than constraining the power of the Governor General? The act is explicit that the GG is left unconstrained but it does not say the same of royal prerogative in general. When the PM decides on an election date that’s the distribution of royal prerogative to a minister, so is it possible that only the PM’s role has been limited?

    I just think it would be an interesting circumstance where parliament passed a law that essentially freed the GG to make up her own mind on the subject.

  16. Spencer,

    I think you’re correct that the INTENT of the law is clearly meant to constrain the Prime Minister, not the Governor General, however the law is incredibly sloppy, and so (perhaps deliberately) it never actually does constrain the Prime Minister. The law lays out (theoretically) when Elections are to be held. However, it never mentions the Prime Minister, and it never mentions the dissolution of Parliament (accept where it says “Nothing in this section affects the powers of the Governor General, including the power to dissolve Parliament at the Governor General’s discretion.“)

    So while the SPIRIT of the law is clearly to prevent a Prime Minister from calling on the GG to dissolve Parliament at a time of the PM’s choosing (and members of the government EXPLICITLY stated that this was the legislation’s intent at the time) there’s absolutely nothing in the Act that actually prevents, or even purports to prevent, the PM from asking the GG to dissolve Parliament at a time of his choosing.

    Basically, the government passed a law which purports to fix election dates while explicitly avoiding changing the process by which Parliament is dissolved and elections are called (since to do so with a mere federal statute would be unconstitutional).

    Given that the law doesn’t mention the Prime Minister, doesn’t mention Parliament, and doesn’t mention the Governor General (except to say, basically, “nothing in this act affects the Governor General”) it’s an entirely moot law. And by definition it has to be, since if it weren’t moot it would be unconstitutional.

    Theoretically, the PM might suffer some political cost for explicitly violating the spirit of a law which his government championed as some sort of great democratic reform, but I doubt it. His government didn’t suffer any political cost for championing a meaningless and moot law as some sort of great democratic reform, so why would there subsequently be a cost to ignoring the spirit of a law that has no practical effect whatsoever?

    I don’t think there’ll be any direct political cost to the Prime Minister for completely ignoring the spirit of his “fixed election dates” statute. The only possible cost politically would be if Canadians are upset that the government passed (and trumpeted) a completely meaningless, moot, constitutionally unenforceable pile of tripe, and tried to pass it off as an electoral reform. I suppose Canadian could be upset to discover that while the government claimed to have “fixed election dates” they passed legislation that did no such thing (legislation that, in fact, practically, did nothing whatsoever). However, they passed this completely meaningless moot law over a year ago, and no one seems too upset that they passed a law that doesn’t actually do anything, so I just don’t see Canadians getting upset about that now, a year and a half later.

  17. LKO: You’re assuming they were paying attention at the time. There’s a difference between passing a law that means nothing, and showing that what was passed means nothing.

    People tend to expect a certain amount of dupilicity from our government. Not because we want it, but because we recognize that it’s made up of imperfect humans, and sometimes people don’t pay proper attention to consequences, etc. However, we also tend to expect our government to at least try to minimize that kind of behavior, or at the very least, no parade it around in front of our faces.

    Passing the law was a mistake, breaking it within the same session? That’s insulting.

    Personally, I’m still even/odds as to whether there really is an intention or not. I can see valid reasoning on both sides, and Mr. Coyne’s argument of how all the noise that’s being made about it suggests that what they really want is for people to believe it strikes me as quite plausible.

  18. LKO: Thanks for the response. I suppose I should rephrase the question to get closer to what I’m thinking – do fixed election dates free the Governor General to rightfully ignore the PM’s advice since statute trumps constitutional convention and the GG following the PM’s advice is convention?

    That said, Coyne’s recent blog post on the subject suggests maybe she should ignore that advice, and can do so with a great deal of moral/constitutional authority behind her.

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