Partisanship and other problems with Senate reform

During the election campaign this spring, Stephen Harper had a sound bite ready to show voters his disdain for the excessive partisanship he'd been noticing in Canadian politics.

"What matters to people now is not the bickering that goes on in Parliament, it’s our ability to focus on what matters to them," he said at one point during the televised leaders' debate.

The election over, both the Conservative government and the NDP, now the Official Opposition, have vowed to tone it down, put party politics aside and co-operate more in the future to "make Parliament work."

But earnest pledges aside, one of the first bills introduced by Harper's government in June seeks to add a greater role for political parties — and hence possibly greater partisanship — to the Canadian mix.

The Senate reform bill sets out term limits for senators and outlines a "voluntary framework" for provincial and territorial elections to the upper house. 

That framework also gives provincial political parties a new role in nominating candidates to run in those elections.

For provincial parties to have some sway in a new, reformed and elected federal Senate represents something genuinely new for the Canadian political landscape. And it introduces a new forum where political partisanship can exert itself.

Sober second thought

As things now stand, fans of the upper chamber, including many of those appointed to it, tout the less partisan atmosphere in the Senate as a key element of its effectiveness.

Non-elected senators, the theory goes, are more free to focus on the public interest, unencumbered by the short-term electoral objectives of partisan politics.

Thoughtful reports, sensible legislative amendments and solid public interest advocacy can result.

Conservative Senator Hugh Segal, explaining the need for term limits in the Senate reform bill introduced last month, put it this way in an interview with CBC Radio's The House: "The nice thing about a non-renewable term is that [Senators are] not out to curry favour. They can be brutally independent."

Queen's University professor Ned Franks agrees, calling the relative non-partisanship of the Senate its "saving grace."

"The biggest problem with the House of Commons is that the proceedings are dominated by political parties," he explains. By contrast, "parties have not dominated Senate proceedings."

Membership has its rewards

Although most senators do sit with a party caucus of their choosing, prime ministers do not always appoint senators from only the current governing party. 

Every senator appointed by Harper so far has agreed to sit as a Conservative, but membership in a political party is not a prerequisite for these appointments.

Segal himself was appointed by a Liberal prime minister, Paul Martin. And Jean Chrétien, during his majority government, was open to making interesting policy-driven picks such as former independent senator Lois Wilson, previously the moderator of the United Church of Canada.

Franks is "astonished" to see provincial political parties given a greater role in picking senators in the bill.

"This utterly transforms the Senate into an overtly partisan thing," he fears.

'I see no good in this and a lot of bad.' —Queen's University Professor Ned Franks

Franks also cites several senators who made important contributions, past and present, that he couldn't imagine being nominated through a provincial party process.

"Many oustanding senators are not from the 'political class,'" he notes, referring to the type of person interested in joining a party and spending years working on partisan electoral battles.

Franks, for one, doesn't believe the elections portion of the bill can survive a constitutional challenge, something the province of Quebec is vowing to launch. "This was not there in what the founders of our country wanted [the Senate to be]," he says.

"I see no good in this and a lot of bad."

Nothing mandatory

Part of the reason the Harper government believes its bill will survive a constitutional challenge is that the system for Senate elections proposed by the bill is voluntary: The provinces can set their own rules for Senate elections and are not compelled to do anything the bill suggests.

Similarly, just as the framework for elections proposed in the bill is not mandatory, the prime minister is not obligated to act on the results of any election. However, his stated commitment is to appoint individuals elected through this provincial process.

"It's a waste of money if it's not mandatory," says Franks, noting that he doesn't see the point of provincially-run Senate elections if a prime minister still has the option of ignoring the results.

Officially, even if the bill passes, the process for Senate appointments would remain the same as it always has been under the Constitution: The prime minister recommends the individuals he wishes to appoint to the Governor General, and the Governor General calls them to the Senate.

The proposed new framework is intended to give some electoral legitimacy to these recommendations.

Party machinery

The framework would allow individuals to run for election to the Senate as independents, the same as for the House of Commons.

But individuals who are not nominated by a provincial political party would be at the same relative disadvantage all independent candidates face — no party machinery to run a successful campaign, no party fundraising to pay for it, and no endorsement from a recognized political brand to add legitimacy to a bid.

Simon Fraser University's Andrew Heard calls the proposal to involve provincial political parties a "two-edged sword."

"On the plus side, it's a proposal that's often been suggested to ensure local provincial interests are represented in the Senate, as well as to fragment the power of the national party caucuses," Heard writes.

On the other hand, he notes, provincial parties don't always line up well with their federal counterparts.

For example, there is no clear federal equivalent to the Saskatchewan Party or Alberta's Wildrose Alliance. In some provinces, a Progressive Conservative party is frequently at odds with its federal Conservative cousins. The B.C. Liberal Party is supported by both federal Conservatives and federal Liberals. And so on.

What would senators nominated and elected to represent such provincial parties do if they aren't a good fit for the existing federal caucuses on Parliament Hill? Start their own tiny Senate caucuses?

The upshot may be that just as the last election result moved the House of Commons closer to a two-party system, this reform could fragment the Senate into many small-party caucuses, each representing a series of different provincial interests. 

What's more, it is unclear how having more small parties might affect all those things that are normally allocated along party lines, such as committee memberships to turns in question period.

"While the Senate does a better job of accommodating independents and members of small parties," Heard notes, "these senators still do face a disadvantage."

"The irony is that the method chosen to provide more effective provincial representation will only serve to undermine the representation of some provinces," Heard concludes.

"Senators who are aligned with the national party caucuses will have an undoubted advantage, although they may be required to simply repeat the position taken by their parties in the Commons. It's a real Catch-22."

Voter confusion

Michael Behiels from the University of Ottawa calls the partisan nature of the nomination process "weird." But he also sees a motive behind this element of the bill.

"It will be the provincial parties, especially the parties in power, that will control the nomination process," Behiels surmises. "This is putting more patronage in the hands of the premiers in the hope that they will support Harper's flawed, and perhaps unconstitutional, bill."

While the federal government's repeated hope is that provinces will voluntarily sign on to provincial Senate elections, it doesn't appear very likely.

Even provinces that have taken legislative steps towards elections have put things on hold until their concerns are better addressed.

For example, Saskatchewan has passed its own Senate elections bill, and could have held elections to coincide with its provincial vote this fall, as the federal bill suggest.

But no Senate elections are planned: Premier Brad Wall isn't impressed that the federal government isn't providing any funding to pay for the extra ballots, and he's concerned about voter confusion with too many names and competing interests vying for attention on the same voting day.

In a recent interview with The Globe and Mail, his skepticism was on full display.

"If all the senators, elected or otherwise, are still whipped, if they are all part of their respective whipped parliamentary caucus, are they free to speak on behalf of the province they come from or are they toeing a party line?" he asked. 

"I think we could get a little bit more enthused if it became clear that this was not about just an expanded parliamentary caucus for existing parties," Wall said. 

Why not abolish?

In the meantime, Wall thinks that by acting collectively, provincial premiers have become what the Senate is not — an elected, equal and effective means of representing provincial interests as a check against the power of the federal government.

So much power has devolved to the provinces over the years that the Senate may not be needed to represent regional interests. "The provinces are the front line," Wall said. "This is where the action is."

So why not just abolish the Senate? Indeed, that's the position of other premiers, including Ontario's Dalton McGuinty, and the NDP at both the federal and provincial levels.

The NDP's preference for abolition over reform is another reason Simon Fraser's Heard is uncertain about the prospects for the voluntary elections framework in the current bill.

New Democrats hold power in Nova Scotia and Manitoba, and are serious challengers for government in B.C. in the coming months. The party might be seen as contradicting itself to run candidates to serve in a chamber it believes should be abolished.

"If they maintain this position, then several provinces with a strong NDP presence will not be properly represented," Heard fears.

Reinforcing regional disparities

The Senate reform bill under consideration at the moment does nothing to address the now-outdated regional allocation of seats the Senate.

The current composition dates back to the previous century, when the Atlantic provinces were more populated than the Canadian West. But times have changed, and given current demographics, it can feel bizarre for a small province like New Brunswick to have more senators than a large province like B.C.

In a recent Vancouver Sun column, former Liberal senator Jack Austin urged B.C.'s premier Christy Clark to use her chair at this month's annual premiers' meeting to rally other provinces around the idea of a constitutional change to make the allocation of Senate seats more reasonable.

Clark has expressed an openness to supporting a private members' bill in B.C. that would enable Senate elections. But she's concerned that the current reform proposals don't address regional inequality.

A consensus on exactly what kind of seat distribution would be most fair and effective would be difficult to achieve.

Austin himself worked with Conservative Senator Lowell Murray on such an amendment in 2006. But their compromise, which increased overall Senate seats by 12 new seats spread across the four Western provinces, was rejected by other Senators for not going far enough to recognize the West's growing influence.

Federal Liberals have also voiced loud criticism for a Senate reform process that doesn't better represent Western provinces.

But although Harper's government has introduced bills to change the seat allocation in the House of Commons, the Conservatives aren't doing the same for Senate seat distribution.

Be careful what you wish for

The legitimacy elections would confer also introduces a new instability to the relationship between the Senate and the House of Commons.

At the moment, Senators who are appointed to serve in the public interest cannot claim the same popular legitimacy and mandate as elected members of Parliament.

And it's exceptionally rare for the Senate to outright defy the House's popular will, although it does delay and amend legislation from time to time.

But if more senators were elected to represent provincial party interests, it's not clear that they would feel similarly obliged to yield to the will of the Commons.

While Harper may need his majority in the upper house to pass the Senate bill, it could be the beginning of the end of his Senate majority were these reforms ever to be completely realized.

Perhaps that's the greatest irony in Harper's vision for Senate reform, as expressed in this legislation, especially considering his government's habit of complaining about the previous "Liberal-dominated Senate" stalling justice or other legislation in the past.

If provincial parties of a variety of stripes pursued diverging goals through their Senate nominees, the prime minister would no longer have the same control he currently enjoys.

"The last thing Harper wants is a more powerful Senate to fight him at every turn," Franks says.

The current legislation contains no dispute resolution mechanism for when the Senate and the House of Commons cannot agree on legislation. 

So what would happen if a future, reformed and provincially-representative Senate started bickering with the House of Commons? Who would prevail?

"We're in a bind there," Franks says.