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.

Killing Harper’s Senate reform (Part 1 anger)

I missed the street rallies, salon celebrations, and bonfire effigies of Prime Minister Stephen Harper, that slippery democrat who failed so conspicuously to democratize the Canadian Senate. I’ve caught up, however, on the small-c conservative recriminations in print and online. They should be savored quickly; the subject will soon return to the closets of Canada’s agenda-setters.

Like the seal hunt, the tar sands, and Justin Bieber, it’s truly embarrassing. Year in and year out, we agree to spend nearly $100 million to be co-governed by an unelected Senate. 

And last Friday, Canada’s Supreme Court reaffirmed unanimously that Canada’s second legislative body isn’t supposed to be democratic and that Canada’s Parliament can’t make any further legislative steps in that direction—even incrementally.

The Court declared:

“The framers (in 1867) sought to endow the Senate with independence from the electoral process to which members of the House of Commons were subject, in order to remove Senators from a partisan political arena that required unremitting consideration of short-term political objectives.”

And just in case any organic American constitutional tendencies had slipped north, John Geddes of Maclean’s Magazine shrewdly highlighted their concluding velvety handcuffs: 

“In summary, the consultative election proposals … would amend the Constitution of Canada by changing the Senate’s role within our constitutional structure from a complementary legislative body of sober second thought to a legislative body endowed with a popular mandate and democratic legitimacy.”

With all the flowery affectation of grade ten history teachers everywhere, the Court prettified a signing bonus for a 19th-century farm-team aristocracy that has, in fact, delivered little sober second thought and has never accounted to Canada’s provinces nor stayed out of the cheesiest corners of partisan politics.

The Courts extravagant literalism, however, has been widely praised for its awful clarity. They showed off their minors in political science and our establishment swooned.

Just because the Prime Minister asked its opinion, however, didn’t mean the Court was obliged to take itself so seriously and to so dangerously discourage future initiatives to make Canada’s whole Parliament more legitimate and better equipped to stand up for the federation in any future unity crisis.

For instance, they could have fretted that Harper’s option of "consultative elections" would probably lead to further pressure to enhance the Senate’s legislative powers. They didn’t have to take on their shoulders the responsibility to block that future risk by not allowing Senate elections to leak out of Alberta’s frisky democracy. Indeed, their silence on Alberta’s Senatorial Selections Act displayed either timidity and/or a lack of confidence in their ruling.

It’s ironic that Canada’s Supreme Court today would dignify the sober-second-thought rationale for an unelected Senate. That necessary constraint on popular democracy was appropriately reassigned to the Supreme Court itself, in the 1982 Constitution Act.

That liberal accomplishment — which has made Pierre Trudeau a hero in this century — was damned in the last century by most constitutional "experts" as an arrogant usurpation of the traditional constitutional prerogatives of the ten provinces. It was a glorious end-run by a PM with a handful of allies willing to break convention and answer for it later.

Is there anything that can be done in the future to democratize the Canadian Senate without a Prime Minister with Pierre Trudeau’s running room or allies?

Morning after Justin Trudeau’s ‘masterstroke’

It’s deflating, I know, but is Justin Trudeau the son of Pierre Trudeau or Joe Clark?

Just recently he was a change agent campaigning on the guileless sidewalks of Toronto. Then just yesterday — pow!

After one month of brilliant, closeted preparation, he’s a knife-yielding pol, the exorcist of the Canadian Senate. In a short, brutal speech, explicitly on behalf of the party of “relentless reformers,” he cleaned out the rot and returned our last-standing antidemocratic legislative body back to its 19th-century founding principles. 

Maybe he’s on a roll. Certainly, someone’s political career is beginning to end.

According to most pundits, he’s outsmarted a tired Stephen Harper. But only recently, so did Stephane Dion and Jack Layton. And going back to my callow youth in 1979, Peter Newman and most of the press gallery thought then that Joe Clark had “trapped” the Liberal caucus into fighting an election against an innovative Progressive Conservative tax increase, with their tired old leader, Pierre Trudeau.

Justin Trudeau may have safely launched his campaign to be prime minister. Most young strategists and young journalists have been brought up to believe that genuine constitutional reform is irresponsible, a waste of time. And Trudeau’s call for  "independent" senators leans on a universally popular word while promising as well that nothing complicated needs to be done.

As Prime Minister, Justin Trudeau would better intuit who would best represent us in the Canadian Senate. And we won’t be embarrassed about not bothering to vote in American-style senate elections. Enthusiasm in Canada has never been high for democratic vs. authoritarian government, especially in the east.

Popular democracy in America is only checked by the unelected Supreme Court. In Canada, the House of Commons, the one-and-only assembly of decision-makers actually chosen by the people, is checked by a Supreme Court, a Governor General, and an unelected Senate. This Canadian complacency is uneven and reluctantly admitted.

Quebecers loathe our inherited aristocratic institutions, and Westerners genuinely believe in representative democracy. They still see Easterners running Ottawa between elections and doing the "sober second" thinking. So, up until now, the Liberal Party has been coy about Senate reform for good reason.

To offer no help to Stephen Harper or Thomas Mulcair and now to enunciate an explicitly antidemocratic vision for the Senate is truly adventuresome. If the Supreme Court at least stays out of the way of Harper’s "consultative elections" proposal, Justin Trudeau could find himself as the standard bearer of reaction in the next election.

Democratizing the Senate despite Canada’s reactionaries

In Canada, provincial governments of every stripe are insisting that the Supreme Court tell the country whether legislation to facilitate advisory elections on the appointment of Senators is constitutional. The conservative provinces and the provincial government that doesn’t believe in Canada (as well as all the provinces to Harper’s left) stand shoulder-to-shoulder before the Court. And they are complaining that the federal legislation that neither binds their provinces, nor future Parliaments, is unconstitutional because it could to lead to the creation of an elected Senate — without their participation or purchase.

Only in Canada? Thank goodness.

Not one premier disputes that today’s Senate is illegitimate. Premiers and their puzzling young academic advisors, however, are loath to say why. They speak of corruption, public disenchantment, and the sad compulsion of it members and their parent — a "dictatorial" PMO — to be partisan. They acknowledge that the Senate has never been as sober as its binge-drinking champion John A. Macdonald promised 146 years ago.

Premiers don’t admit, however, that even at its imagined best, it is an anachronism; it’s a legislative body, with legislative influence, that isn’t elected by the people. And its members needn’t fear what the people think as long as they are there.  

The premiers are telling the Supreme Court that Harper can consult his conscience, blue-ribbon Canadians, premiers, and his party brass in each province, but not the people in each province. That would be fundamental change; it would shortly make the Senate — as it did in the U.S. — a democratic and, therefore, a legitimate legislative institution.

Premiers can’t come out as reactionaries fearful of direct democracy because that would embarrass their supporters. Otherwise, they would have eagerly taken Harper and Alberta to the Court years ago, while four senators were being appointed according to the will of four advisory elections in Alberta. Nevertheless, they are.

Court activist Justice Rosalie Abella suggested to the federal government’s lawyer: “You’re not inviting us to look at the bigger picture … of how Canada works.”

Exactly. That’s what Harper is not asking the Court to do. Please, Harper is requesting, don’t tell us to try to put into Canada’s written constitution first what the people may freely do — in consultative elections, in each province, over time.

Certainly, Harper is trying to reduce irrevocably the powers of majority prime ministers by making Parliament as a whole more responsive and credible across the populace. Also, he’s belittling the presumption of premiers that they alone speak for province-wide interests. No future prime minister would dare repeal legislation that simply invites voters to declare formally who they want to represent them in the Senate.

Still, as a constitutional opportunist, Harper is in good company.

Pierre Trudeau freely threatened to tell the Parliament of Westminster — Canada’s constitutional court before the Constitution Act of 1982 — to “hold its nose,” to respect the letter of the law, and make the changes to the BNA Act that Canada’s Parliament wanted, with or without the support of the provinces. His threat of unilateral federal action shattered the status quo because it was legal.

Westminster was sorely tempted to look at the “bigger picture.” But, it kept still. So should the Supreme Court today.