Got Senate reform if you want it

Three possible explanations for Stephen Harper's feckless approach to the Senate.

I can think of three possible explanations for Stephen Harper’s feckless approach to the Senate. Two speak to his long term strategic goals:

1. He hopes to spur real reform to make the Senate a more effective and legitimate federal institution.


2. He doesn’t want reform. What wants is to exacerbate and accelerate the decline of federal institutions, in order to further undermine Ottawa’s legitimacy in the eyes of Canadians.

But there’s a third possibility, which is that

3. For Harper,  Senate reform is just a tactical device designed to placate his base, enrage the opposition, and titillate the media.

My belief is that Harper’s strategic goal is (2), and he’s happy to engage in (3) to the extent that it might also result in (2). But let’s adopt the principle of charity and assume that Harper actually wants to reform the Senate in order to improve the federal government. Or if that’s too much of a mental stretch, let’s pretend that we had a prime minister who actually cared about the legitimacy and effectiveness of federal institutions. How should we reform the Senate?

Let me take the occasion to once again break a lance for Campbell Sharman’s 2008 paper for the IRPP on how to give political legitimacy to an un-elected Senate.

What bedevils the debate over the Senate  is the assumption, shared by  reformers and abolitionists alike, is that the status quo is  intolerable in a modern democracy and the only way to give the Senate  any legitimacy is to turn it into an elective chamber. Sometimes, though, it takes an outsider to give your slumbering dogmas a shake.   

In his study “Political Legitimacy for an Appointed Senate,” Sharman  writes that one of the unstated motivations for Senate reform is the belief that the Canadian Parliament is a degenerate bicameral system, with a loafy upper house that looks rundown and antiquated compared to the vigorous Triple-E (equal, elected and effective) senates found in Australia and the United States. But as he points out, it’s actually more accurate to say that Canada is a unicameral system with the Senate as a vestigial parliamentary organ.

This is an important insight. In the Australian and U.S. states, only Queensland and Nebraska are unicameral, while not a single Canadian  provincial government is bicameral. At the federal level, the existence of the Senate does not affect the near-total dominance of the Commons, in representative legitimacy, democratic accountability, and effective political authority. Adding an effective and elected Senate would seriously upset the country’s political culture — perhaps in some ways for the better, though the odds are it would create far more problems than it would solve.

So why not simply abolish the Senate? For two reasons. The first is that it isn’t going to happen. Ever. People can yap all they want about turfing out the Senators and turning the chamber into a condo development, but doing so would require a constitutional amendment, and that is simply not on offer.

But more importantly, the truth is the Senate actually does some good work. Just what the upper house is even for is, of course, a matter of longstanding dispute (regional balance? A check on the Commons?), but what it does best is the old idea of serving as a chamber of sober second thought: effective scrutiny of legislation and inquiry into the activities of the government and its various agencies. To give just three examples, there is Michael Kirby’s work on health care reform, Colin Kenny’s work on defence policy, and — most intriguingly — the Senate’s remarkable intervention in the face of the Chretien government’s panicky anti-terror legislation in 2001.

The upshot is the Canadian Senate has a great deal of what political scientists call “output legitimacy,” a fancy way of saying it does work that is relevant and effective. What it lacks is “input legitimacy,” which just means that the way Senators are selected has very little credibility.

The trick to reforming the Senate, then, is to fix the appointments process in a way that preserves its capacity to scrutinize the government and legislation without disrupting the constitutional balance in the House of Commons. Probably the most promising possibility is a version of the method adopted for choosing members of the British House of Lords. While most Lords are still appointed through a partisan nomination process, there’s also an independent commission that vets and then selects a number of non-partisan members from a list of names selected by the public.

In the end, though, all of this might be just whistling in the wind, since it isn’t clear Stephen Harper is serious about Senate reform. Even such a mild reform as a more legitimate appointments process would involve the prime minister actually focusing his attention and expending some political capital. Given Harper’s fecklessness on this score, it would appear that the status quo continues to serve everyone’s interests, except those of Canadians.

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