Killing Harper’s Senate Reform (Part 2: hope and chemistry)

Harper has not responded as "nation-builders" are supposed to when their initiatives to make constitutional history are destroyed by the Supreme Court or in earlier times by provincial governments. Nation-builders are expected to pick themselves up and do something. For instance, with a touch of remorse and patriotic urgency, convene a televised First Ministers Conference to reignite the process.

Instead, with unnerving clarity, Harper observed that with the authority of the provinces in reforming the Senate now established (and that, in effect, he had no business acting on his own), it is now up to the provinces to decide what they want to do: reform it, abolish it, or simply leave as is — as a federal (not a provincial) embarrassment.

This "I’ve-got-more-practical-and-popular-things-to-do" response has annoyed statesman-like politicians like Bob Rae and infuriated statesman-chasing journalists like Andrew Cohen who insist that worthy PMs keep leading, just more humbly and more nicely.

Myth has it that the great ones make nice.

This is pure spin. It serves the "personal chemistry" school of literary nonfiction and the industry around such pseudo-new events as Question Period and First Ministers conferences. It’s a school of commentary that kicks sour losers on the way down and panders to winner on the way up.

Core Liberals and core Conservatives, I’m sure, would cringe at the suggestion that the harmonization of Ontario and Canada’s sales taxes (the HST) was pulled off because Stephen Harper and Ontario Premier Dalton McGuinty had "personal chemistry." The notion, as well, that Harper and Barack Obama could work as brothers on the nationalization of GM and Chrysler and can’t now on the Keystone XL pipeline because their relationship has gone south is again spin.

Political circumstances pull leaders together and political circumstances pull them apart.

Harper’s inclination to leave the next move to the provinces, in fact, could lead to an elected Senate — if an influential number of Canadians would support reformers and punish reactionaries. The trigger for constitutional reform needn’t only be a Prime Minister in Ottawa trying to honor an election promise of years gone by. The premier of a powerful province, for instance, could break the ice.

There is a glorious precedent.

Pierre Trudeau’s success finally in Canadianizing and amending the British North American Act didn’t depend on his expertise, his creativity, his energy, or his charm. The camera loved Pierre Trudeau — but other politicians didn’t and wouldn’t have lifted a finger merely to inflate his name in Canada’s history books.

Nevertheless, circumstances then were compelling — inviting. A solemn promise by all federalist parties and governments to reform the Canadian constitution had been made to Quebecers in the midst of an independence referendum. And the Premier of Ontario William Davis, in the fall of 1979, publicly and formally threw his support behind both the unilateral patriation of the constitution and an entrenched charter of rights and freedoms.

To put it crudely, the careful Progressive Conservative premier of half of English-speaking Canadian voters offered a Liberal Prime Minister from Quebec a bullet and a rose: an invitation to act unilaterally without the unanimous consent of the provinces (if the next round of constitutional conferences ended in deadlock) and a seconder for a rights charter in order to mobilize public support.

Rather than waiting for a lovable PM, there is a scenario today for putting our old one back to work.  

If, after Ontario’s election, the Premier of Ontario were to join Alberta and off-again, on-again Saskatchewan and British Columbia in formally endorsing a constitutional amendment to elect senators for terms between the 9 to 12 years House of Commons has supported, all of that would be in doubt would be whether the four Atlantic governments or three with Quebec would want to continue learning the name of their next senator by reading a PMO press release.

Would they have the nerve to argue that direct democracy is still a dangerous Yankee idea or that not embracing it now will lead to a sweeter deal off in the future?

All would be quickly revealed and, after the normal intergovernmental discussions that go on constantly right now, Harper could ask for signatures on an agreed joint resolution. (Heh, for the sake of equitable exposure on the National, surely he would agree to host a one-day First Ministers Conference.)

Perfectionists for the status quo, like Justin Trudeau, tell us that this "let’s at least elect them" scenario shouldn’t happen because Alberta and BC’s Senate shares are too small today. Apparently, Alberta’s proposal — and practice — is too generous to the rest of Canada. Before anyone joins Alberta in democratizing the Senate, someone truly stupid must ask Quebec and Atlantic Canada to surrender nearly half their Senate seats.

Two comments. With only six seats, Alberta is the second-biggest loser in the current allocation of Senate seats and still favors nationwide Senate elections as a first step toward a democratic and effective second chamber. The West will keep pressing for further reforms and, also, will still have a credible veto on other suggestions to empower the Senate, if they can’t secure a fair compromise on Senate seats in the future.

(BTW: Americans are not innumerate. Californians and Texans know that voters in Rhode Island and Maine have ten times more weight. Yet neither Texans nor Californians want their two senators appointed by their governors or blue-ribbon committees. Nor are they threatening to leave the Union unless New England is cut back to two US Senate seats, in total.)

Of course, the elected premier of Ontario may demur. No politician uses political capital just to help an unpopular Prime Minister make history. Also, there’s no ennobling national challenge for our middling leaders to rise to — like the weight of an approaching referendum that could shatter the political power of Central Canada, for instance. 

Nevertheless, spreading democracy in Ottawa and, thereby, girding federalism for possible future separatist attacks (from east or west) should be rather popular amongst Ontarians — certainly easier than entrenching French language rights was only a generation ago

The above provincial imitative may be what Harper is wishing for — unless he wants history to record only that he focused “like a laser on balancing the budget.”

Otherwise, if I was him, I’d destroy any chance of any progress by rudely asking the three Ontario candidates for Bill Davis’s job whether they’re prepared to exercise their awesome constitutional power by declaring themselves on this one constitutional question.

What Makes Canada Special: Benign Authoritarianism?

It is widely agreed in clever circles that the Harper Government’s decision to celebrate the 200th Anniversary of the War of 1812 was an inept expression of crass base politics and silly British nostalgia.

That war, after all, only kept alive the possibility that, way off in the future, there might be an independent Canadian dominion. Colonists and Britain’s First Nations allies were, in effect, magnificent cannon fodder in another British Imperial enterprise.

Besides, the War of 1812’s authoritarian themes do not resonate with Canadians  in 2013. Right?

Certainly, that’s what we say to each other and to the pollsters. Indeed, Nanos Research just confirmed that 47% of Canadians would rather have celebrated the 30th Anniversary of Canada’s emphatically liberal Charter of Rights and Freedoms, while only 28% supported celebrating the War of 1812—a war in which the forces of order and solidarity beat back those self-indulgent libertarians to the south.

Yet almost daily we witness the extraordinary deference of Canadian opinion toward established institutions—especially the un-elected ones—and the competence of those institutions to secure the people’s best interests.

Here are two rather significant examples: keeping an un-elected Senate and abridging free speech.

Liberal America wouldn’t tolerate either; liberal Canada, at its best, is of two minds.

Undoubtedly reflecting the American streak in Western Canadian politics, Stephen Harper has been trying for nearly seven years to start moving Canada toward an elected Senate.  Indeed, he’s the first Canadian Prime Minister yet to try to devolve his Prime Ministerial power to appoint Senators—to allow voters instead to make that decision. So far, not one Liberal or New Democrat leader in Ottawa has felt sufficient public pressure to support his efforts.

Interim leader of the Liberal Party Bob Rae and his unavoidable successor Justin Trudeau would rather hold Harper accountable for the caliber of his appointments to the Senate than help him surrender that power to the people.

This week, the Canadian Supreme Court unanimously upheld the right of provincial legislatures and the Canadian Parliament to circumscribe free speech, when hateful words could possibly “marginalize” individuals.

The decision was carefully written, and concern for free speech won’t end with one news cycle. However, it is noteworthy that the court’s verdict was unanimous, that newspaper and editorial writers are almost unanimously opposed, and that Canada’s political leaders—the people-trackers who respond in hours when it's an easy question—are silent.

Republicans would be wise to devise a Plan-B on universal health-care

Calling “e” un-Obamacarconstitutional is all the rage amongst the more aggressive leaders of the Republican Party. The accusation addresses several partisan objectives: it aims to delegitimize the other side; it skirts complicated legislative details, including benefits as well as costs; and it asserts that they are on the side of flag and country. After all, being un-constitutional is literally un-American. So how could it possibly be in our interests?

The life cycle of this feisty stratagem may be drawing to a close.

The constitutional challenge attacks the cornerstone of the Patient Protection and Affordable Care Act—the requirement that all individuals purchase basic health insurance. Laurence Tribe, a professor at Harvard Law School argues with great confidence that the Supreme Court will side with Obama:

“Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. . .

“Many new provisions in the law, like the ban on discrimination based on pre-existing conditions, are also undeniably permissible. But they would be undermined if healthy or risk-prone individuals could opt out of insurance, which could lead to unacceptably high premiums for those remaining in the pool. For the system to work, all individuals — healthy and sick, risk-prone and risk-averse — must participate to the extent of their economic ability.

“In this regard, the health care law is little different from Social Security. The court unanimously recognized in 1982 that it would be “difficult, if not impossible” to maintain the financial soundness of a Social Security system from which people could opt out. The same analysis holds here: by restricting certain economic choices of individuals, we ensure the vitality of a regulatory regime clearly within Congress’s power to establish.”

Click on: http://www.nytimes.com/2011/02/08/opinion/08tribe.html?_r=1

Tribe doesn’t argue that judicial or congressional conservatives are obliged to like what the Democrats are doing—only that it’s constitutional. Twentieth century experience provides legitimates reasons to worry about expanding the role of federal governments in the delivery of basic social services. However, the courts have generally left it to elected politicians to define the appropriate place of federal, state and individual responsibilities.

When the constitutional arguments run their course, Republicans will have to start talking about health-care again. Simply promising to repeal the entire act will lose considerable credibility if the court up holds its constitutionality. Furthermore, will the majority of Americans who believe in federal reform in the provision of health-care believe that once Republicans have torn down what Obama has put in place they’ll implement a credible alternative?

Nobody goes to the political center easily these days. However, Republicans would be well advised to concentrate on finding practical, even conservative, ways for the federal government to respond to nation-wide concerns for accessible, affordable health-care. Ironically, they might have another look at the Canada Health Act.

Setting aside public administration, it simply transfers monies to the provinces on behalf of four widely popular health delivery guidelines: comprehensiveness, universality, portability and accessibility. While provincial health plans are often called socialistic by American conservatives, the Canadian federal government’s role is quite light-handed compared to what is already the case in Washington.