Under Penalty of Catapult

Canadian Prime Minister Stephen Harper is pursuing a strange reform project. He wants to alter Canada’s Senate. The upper chamber of Canada’s Parliament is something of a hybrid between the powerful U.S. Senate and the weak British House of Lords. Like its U.S. counterpart, the Canadian Senate has a fixed allocation of seats designed to reflect regions rather than individuals. Canadian senators are appointed by the government-of-the-moment, like British peers, but they may only serve until the age of 75 (which would disqualify 13 sitting U.S. senators.) In theory, the Canadian Senate is the equal of the House of Commons and can disapprove any legislation passed by the lower chamber. The British House of Lords effectively lost this power in 1911. Still, like the British government, the Canadian government only answers to the Commons, not the Senate. This means the Canadian Senate is not an equal legislative partner, but a chamber of “sober second thought” in the words of its advocates.

The idea of Canadian Senate reform dates back more than 20 years. Harper’s present-day Conservative Party was formed by the union of the former Reform and Progressive Conservative parties. The Reform Party itself arose in the late 1980s as a splinter faction from the older Progressive Conservative Party. Reform was primarily a western Canadian party that wanted to countermand the stronger political influence of Ontario and Quebec. One of Reform’s core policies was the idea of “triple-E” Senate reform: equal, elected and effective. This idea survived the conservative reintegration and is now a priority for Harper, who finally won a majority of the House of Commons in last year’s elections.

The proposed reforms now before the House, Bill C-7, would maintain the Senate as an appointed body, except that (1) senators would now served non-renewable nine-year terms and (2) individual provinces would hold elections for “Senate nominees” that the government would appoint when vacancies arise. One Canadian province, Alberta, has held such elections for years, but they are legally non-binding on the federal government.

What makes this idea strange is that Harper wants to maintain the legal facade of an appointed Senate while incorporating elections into the process. He’s doing this in an attempt to avoid a full-scale fight over amending Canada’s constitution. In the U.S., Congress can propose a constitutional amendment, which only takes effect if three-fourths of the state legislatures ratify it. The Canadian Constitution, which was originally an act of the British Parliament, has different procedures for different types of amendments. Normally, an amendment regarding “the powers of the Senate and the method of selecting Senators” would require the consent of both houses of Parliament and all ten provincial legislatures. Harper knows some provinces won’t support his amendment. Some provincial leaders — as well as the opposition New Democratic Party — prefer abolishing the Senate altogether.

So instead, Harper claims his reforms fall under a simpler amendment process that provides, “Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.” Technically he’s not changing the method of selecting senators — since they are still legally appointed by the government — just the process by which the government receives advice on who to appoint.

Harper wants to limit the Senate reform debate to the two subjects outlined in his bill, elections and term limits. What he does not want is a full-scale constitutional brawl over other subjects, such as the apportionment of Senate seats. In the U.S., every state gets two senators regardless of population. In Canada the seats are apportioned regionally: Ontario and Quebec get 24 senators each, the three Maritime provinces get 24, the four western provinces get 24, and the remaining nine seats are assigned to Newfoundland and Labrador and the three territories. As with the U.S. Senate, this fixed apportionment  creates huge representational imbalances. There’s one senator for roughly every 34,000 residents of Prince Edward Island, but only one senator for every 685,000 residents of British Columbia. But changing this formula would clearly require unanimous consent of all the provinces, and it’s unlikely the larger provinces would ever agree to reform without getting more seats back in exchange. (As I’m writing this post, James McLeod of the St. John’s Telegram reports that Newfoundland and Labrador Premier Kathy Dunderdale doesn’t support Harper’s incremental reforms and is “only really interested in opening the constitution and doing a big overhaul,” which McLeod said would include “equal voices for provinces.”)

While I’m normally not one to side with a bunch of socialists, I think the NDP is probably right here in simply advocating the outright abolition of the Senate. Harper’s unconstitutionally zealous pursuit of a “triple-E” Senate isn’t worth the bother. And from an individualist perspective, I don’t think introducing more elections is necessarily a good thing. I favor reforms that decentralize power. C-7 won’t do that. The history of the U.S. Senate is a good cautionary tale. Senate elections, introduced as a “progressive” reform in the early 20th century, produced just the opposite. The modern U.S. Senate is arguably more elitist than even the British House of Lords. Statewide elections are easily dominated by entrenched political and economic interests, which makes the Senate more a breeding ground for lobbyists than an effective check on either the House of Representatives or the White House.

An elected Canadian Senate would not be a check on government power, but a competing source for power. It would compete not just with the federal government, but the provincial governments as well. Canadian provinces employ the same parliamentary system as the federal government. The leader of the majority party in each legislature serves as premier. So what happens when an elected senator — chosen by the voters of the entire province, and not just one riding or party like the Premier — decides she is a better representative of what “the people” want. Suddenly, you’ll see the Senate take a greater interest in micromanaging provincial activities, which means giving Ottawa even more power. Centralization rarely leads to a greater respect for individual rights.