Under Penalty of Catapult

In its zeal to pass legislation that would restrict free speech in the name of copyright, the Government of Canada is, not surprisingly, restricting the freedom of debate in the House of Commons itself. Yesterday the Conservative majority voted to limit debate on the second reading of C-11, which I discussed in detail the other day, in order to expedite its move towards a House committee.

The use of this “time allocation” motion — roughly akin to the U.S. Senate’s cloture — is supposed to be reserved for occasions when the various parties can’t agree on time limits for debate. Since the Conservatives won a majority last year, however, they’ve been much quicker to demand time allocation. This was the second such motion passed just this week.

Peter Van Loan, the Government’s floor leader in the House, defended time allocation as appropriate given the importance of copyright reform and blamed the opposition New Democratic Party for being obstructionists:

Mr. Speaker, after months of the NDP delaying and obstructing important legislation, it has actually revealed its true agenda. It intends to delay all legislation as long as it possibly can. That explains why the NDP has almost never agreed to hold a vote on any piece of legislation in this House.

Last week, I issued an invitation to come to an agreement on moving forward with legislation. The NDP member for Acadie—Bathurst [Yvon Godin] revealed the NDP plan to delay and obstruct all legislation by putting up every speaker possible. He justified this by saying the rules allow that every member has the right to speak. Indeed, that is the case. It is called “a filibuster” when parties put up every single speaker. The normal practice is not to do that.

The bill that we are talking about today has already been the subject of 75 speeches in this House and an opposition to block it from even getting to second reading.

By contrast, the identical bill, word for word, was sent to committee in 2010 after only seven hours of constructive debate in this place so that it could be reviewed in detail and improved through amendments.

If the NDP members had their way, Canada would go the way of other countries, such as the United States and countries in Europe, that have faced a political gridlock in a decision that caused economic uncertainty that threatened the world economy.

That is not what we want from our government. That is not what Canadians want. We are going to continue to have a productive, hard-working, orderly government that makes decisions and does the work that Canadians sent us here to do.

The crux of Van Loan’s argument is that the NDP is somehow being unreasonable by insisting that every member has a right to speak on a bill at every stage of consideration. Under the House’s standing orders, absent time allocation each member could speak once for up to 10 minutes at the current stage, second reading. There’s still committee and third reading stages.

There are 141 MPs representing opposition parties. If everyone spoke for the maximum 10 minutes, debate would take just under 24 hours. It would be repetitive and probably counter-productive, but it wouldn’t create gridlock as Van Loan suggests. Ultimately, his side has the numbers to wait out any opposition stalling. This isn’t the U.S. Senate where someone can hold the floor indefinitely.

The NDP’s counter-argument boils down to, “Every member has a right to speak.” I can’t argue with that, especially with a bill of this importance. The Conservatives reply is that they’ve already debated and considered this subject exhaustively, in this and earlier parliaments, and that they can’t debate this forever. To which I say, Why not? If you can’t fully debate the boundaries of free speech on the Internet — which is really what C-11 is all about — then what can you fully debate?

This week the Canadian House of Commons is expected to resume debate on C-11, a copyright reform bill pushed by the Conservative Party government of Prime Minister Stephen Harper. This is not quite the same debate that took place recently in the United States over SOPA. The C-11 debate isn’t so much a battle between Hollywood studios and the technology sector as it is a case of Harper and his ministers lashing out over an opposition that, well, opposes them.

C-11 is but the latest incarnation of a long battle to pass a copyright reform bill. First, a little background. From 2006 thru 2011, Harper led a minority Conservative government. That is, while he had the greatest number of seats in the House of Commons, the three opposition parties — Liberal, New Democrat and Bloc Quebecois — collectively held a majority. So Harper could accomplish nothing legislatively without some cooperation from the other side.

Eventually, the opposition overplayed its hand and forced Harper to call early elections last Spring, where he finally won a majority of the House. So now he can pretty much do whatever the hell he wants. And one of things he wants is this copyright bill.

The Bill

The bill itself has been introduced and debated in the last couple of parliaments in basically the same form as it remains today. This week, the government plans to move the bill to the second of three required readings in the House, and Harper’s chief lieutenant in the House, Peter Van Loan, said last week he hopes to secure final approval by April. To date, the government has not indicated it will accept any substantive opposition amendments.

So what is C-11 all about? The most controversial provision deals with the use of “digital locks” installed by content providers to prevent users from copying the contained work. Under C-11, such “technological protection measures” are given protected status. It would be illegal for a user to circumvent a digital lock that controls access to a work, though not a lock that merely restricts the ability to copy. Practically, this is probably a meaningless distinction, since works like DVDs or e-books may contain locks that do both, and it’s difficult to circumvent the copy control without doing the same with the access control. C-11 further bans the distribution of any software or other devices that could be used to circumvent either type of digital lock.

If anyone circumvents a digital lock for “commercial purposes,” they are subject to a fine of up to $1 million and a five-year prison sentence. There are several exceptions to the ban, including law enforcement purposes or providing access to “persons with perceptual disabilities.”

C-11 does take a less harsh stance towards internet service providers than the United States. The bill does not require ISPs to immediately take down any website accused of copyright infringement, but it does require the ISP to notify a user of any infringement accusation, and to store the user’s information for up to a year.

The other controversial subject of C-11 is modifying the definition of “fair dealing,” or what we call “fair use” in U.S. copyright law. C-11 expands fair dealing to include any use of a copyrighted work for “education, parody or satire.” The problem is that the government defines “education” quite restrictively. As the Library of Parliament’s report on C-11 suggested, “[e]ducation apparently refers to a structured context and would include training in the private sector but not cover ‘education’ of the public at large.”

Even within the “structured context” of a university course, C-11 imposes a ridiculous burden on students, particularly those who take online or distance courses. Consider this section in the bill:

It is not an infringement of copyright for a student who has received a lesson by means of communication by telecommunication under paragraph (3)(a) to reproduce the lesson in order to be able to listen to or view it at a more convenient time. However, the student shall
destroy the reproduction within 30 days after the day on which the students who are enrolled in the course to which the lesson relates have
received their final course evaluations.

This section goes on to say that the education institution has an affirmative duty to prevent students from “communicating the lesson” to others beyond what is permitted here.

Other provisions of C-11 further increase the scope of copyright in Canada. For example, the bill gives live performers copyright in their performances, which includes “moral rights” to “the integrity of the performance.” The bill also grants copyright in photographs and paintings to the artist, rather than the person who commissioned the works. Instead, the person who pays for the photographs only enjoys “limited rights to use it for personal or non-commercial use without the photographer or artist’s permission, subject to any contract that specifies otherwise.” This would mean, for instance, that a couple who hires a photographer for their wedding could be legally prevented from publishing their own wedding photos without the photographer’s permission — unless the couple was legally savvy enough to put a specific clause to the contrary in their contract.

The Debate

The Harper government has three basic arguments in support of C-11. First, we’re finally in the majority, so we have a “mandate” from the public to govern as we see fit. Second, C-11 will help Canada comply with various international copyright and trade agreements we’ve signed or plan to sign. Third, this bill will help protect jobs in copyright-dependent industries.

In response the opposition, led by the New Democratic Party, claims to support copyright reform in principle but objects to the government’s heavy-handed approach. Last November 28, the House, voting along party lines, defeated an NDP motion to prevent second reading of C-11 “because it fails to: (a) uphold the rights of consumers to choose how to enjoy the content that they purchase through overly-restrictive digital lock provisions; (b) include a clear and strict test for ‘fair dealing’ for education purposes; and (c) provide any transitional funding to help artists adapt to the loss of revenue streams that the Bill would cause.”

Debate on the second reading began on October 18, 2011. Charlie Angus, a NDP Member of Parliament representing Ontario, presented the opposition’s case, which demonstrated a solid understanding of the history and true nature of copyright:

The balance of the right to make a copy is not a property right. It has been argued over the years, and copyright lobbyists today will talk about their property and their right to protect their property. They will say they want to put a lock on the door to keep people from going in or to make them pay to go in, and that it is their property.

However, it is not a piece of property. Creativity is not a piece of personal property. It has been defined in Parliament and the courts.

I refer back to the 1841 debates where Lord Macaulay, who was a writer himself who had been ripped off and plagiarized many times over the years, fought within the English Parliament to separate the idea that it was personal property that copyright was created to protect. Macaulay at that time imitated much of the modern debate. He even talked about the pirates of that generation, the “knaves who take the bread out of the mouths of deserving men”, the people who would unfairly infringe on the copyright of the author and not pay for it as they should.

At the same time, he also called copyright an evil. It is interesting that he said that. He called it a necessary evil. He said that copyright should only exist for a period to ensure the author was paid, but it could not be used to interfere with the larger development of society. He said that the creation of ideas is not something that can be compartmentalized: that when a work is created, it is brought into a larger frame. Parliamentarians around the world have been trying to find the balance between people’s right of access to new ideas and the right of remuneration of the creator. Those are the two fundamental balances, and they are the balanced principles that the New Democratic Party has articulated throughout these debates for the last number of years. The two fundamental principles in the digital age are the same as they were back in the 1800s in the book wars: ease of access and the right to remuneration.

We talk about le droit d’auteur and copyright, but this bill does not deal with either of those rights. It is about corporate right, which is different from copyright.

Angus was especially pointed on C-11′s mandate that online students destroy class materials after 30 days:

That requirement would mean the creation of a modern book-burning regime. As well, we would see the creation of a two-tier set of rights. There is one set of rights in the analog and paper world that would allow students going to school in Toronto to keep their class notes. Those class notes are important, because year after year students keep them to build a body of work towards getting their degree. However, students on a northern reserve trying to get long-distance learning do not have that same set of rights. They have a lesser set of rights.

Unfortunately, where the NDP argument goes off the rails — that is, if you’re a supporter of individual rights — is in the party’s belief that more government intervention is necessary to address the problems of copyright. As the NDP’s motion above noted, the opposition wants the government to provide “transitional funding” for artists to compensate them for “the loss of revenue streams.” The NDP favors expansion of an existing government program that taxes certain types of media — blank CDs and cassettes — and ostensibly uses the proceeds to pay royalties to artists affected by copying. The previous, opposition-majority Parliament considered applying the tax to electronic devices — what the Conservatives rightly mocked as an “iPod tax” that would’ve been as high as $75 depending on the storage capacity of the device.

The NDP argument is ultimately anti-corporatist, not anti-copyright. They portray the government as a puppet of corporate and international special interests. And they’re right. Unlike the United States, where Hollywood’s influence within the Democratic Party drives the copyright agenda, the Harper government is primarily concerned with international public opinion. Most of C-11′s provisions are designed to bring Canada’s laws under treaties designed and pushed by the major copyright powers, the U.S. and the European Union. Harper would rather make laws in a back room with his fellow world leaders than negotiate directly with his own Parliament.

Nothing made this clearer then when the infamous Wikileaks cable dumps last year showed Canadian and U.S. officials working together to push copyright reform. Geoff Regan, a Liberal Party MP from Nova Scotia, offered this account during the October debate in the House:

Diplomatic cables, recently released through WikiLeaks, have revealed that much of the bill was drafted specifically to meet American expectations in terms of the digital lock provisions. I find that quite shocking and disturbing. It is not about what is in the interests of Canadians but what is in the interest of some U.S. interests. The Conservatives even offered to provide the United States government with an advance copy of the bill before the Parliament of Canada was allowed to read it.

That is shameful. It is hard to imagine that could happen. Surely, the Conservatives would have more respect for Parliament and for the House of Commons than to offer it to a foreign government before tabling it here and making it available for members and for Canadians to examine.

Worse than that, the cables revealed that the Conservatives actually asked the United States to place Canada on the United States trade representatives’ piracy watch list. They wanted to scare Canadians into supporting this copyright bill. Talk about a regressive, recidivist, bizarre way to approach this. Ten days after the Conservatives made the request, the U.S. was only too happy to oblige them. Naturally. It is no surprise that they went along fully.

The irony of all this, of course, is that the U.S. is now loosening up its own provisions on digital locks. During the last review of the American circumvention rules, it significantly loosened them up. While it is now legal in the U.S. to circumvent a protection measure to create a mash-up for YouTube, in Canada it is going to be illegal, thanks to the government. Can anyone Imagine that? The Conservatives talk about this being balanced, fair and a modern copyright law. This is regressive.

While the Bush White House had a direct line into the Prime Minister’s Office, the opinions and advice of Canadian stakeholders, Canadian citizens and Canadian experts fell on deaf ears.

Regan’s wright about Conservative scare tactics. This was apparent during the resumed C-11 debate on December 12, when the government’s representative, Paul Calandra, did little more than stand on the House floor and respond to every legitimate criticism of the bill by accusing opponents of ignoring the jobs that would be lost if the government didn’t get exactly what it wanted. Calandra repeatedly cited 14,000 jobs in the Ontario video game industry that were “at risk” without the digital lock provisions of C-11.

The jobs argument is a familiar straw man in U.S. copyright debates. Hollywood claims phantom losses due to “piracy” will ultimately lead to mass unemployment in the entertainment industry. The NDP’s Charlie Angus rightly addressed these arguments in his October speech to the House:

We have heard all this talk about piracy and the pirate bays. It is interesting that the very first pirate bay was in Los Angeles. We think Hollywood is the natural place to make movies, but it is not. Why, in God’s name, when the vast majority of the U.S. population lives on the eastern seaboard, would filmmakers go to the dessert outside Hollywood to make films? It was because they were escaping the copyright rules of the day. They could not make movies in the eastern United States because Edison controlled the copyright on the camera. However, there was not the same copyright rules in California, so Hollywood was the original pirate bay.

It went on through the years when the VHS came out. Jack Valenti, the defender of the Hollywood industry, called the VHS the Boston strangler of movies and begged Congress to shut it down, to make it illegal because VHS was a threat.

The big pirate company at that time was Sony, which is suing people all over the planet for corporate infringement now, because it had created the VHS player with the record button.

At that time there was a big corporate fight and everybody said that the VHS would destroy Hollywood. However, as you know, Madam Speaker, and you are very young but you were probably right in your prime when the VHS came out, people started to rent movies, something they would never have thought about before because they would go to the theatre. Now they were able to rent movies, so this pirate activity, which Hollywood tried to shut down, became such a lucrative new business that it did not have to bother releasing movies to theatres. It could just release it to VHS and eventually on to DVD.

[ ... ]

Let us look at the recording business. In 1906 the musicians in the United States tried to make the roller piano illegal. They thought the roller piano would make it irrelevant to hire musicians so they said that mechanical music was a threat to musicians. Who did not side with them? The American Music Publishers Association did not support the musicians. It figured the more roller pianos sold, the more copyright it would make on the actual sheet music. Therefore, the roller piano was made legal. In the 1920s the recording industry tried to shut down radio because radio was not paying royalties. In each area along the way the problem was the need to find a monetization stream.

The fight in the digital age is no different than it was in 1928 when the royalties of artists dropped over 80% in the recording business because radio was the Napster of the day. It found a monetization stream. We are asking the government to work with us on a monetization stream for artists and unless we find that, we will be at the copyright wars for decades to come.

Angus was doing so well up until that last sentence. The NDP is unfortunately stuck in a feedback loop: Government caused the exploitation of consumers and artists through copyright, so the only solution is…more government intervention! It’s the market, not government, that needs to solve the problem of finding a “monetization stream” for artists.

The Solution

None of the parties represented in the Canadian Parliament oppose copyright as such. That limits the debate to how far copyright should extend. Ultimately, that gives the advocates of the greatest expansion the advantage, since they can simply wait their opposition out. It helps greatly when the radical pro-copyright forces control the executive, because they can use their treaty-making powers and foreign relationships to circumvent parliamentary debate. Similarly, the international realm is dominated by those countries who are most committed to forcing their view of copyright on the rest of the world.

The NDP does have an opportunity, however, to change the rules of the game. The NDP could break ranks and adopt an abolitionist stance towards copyright. The other major opposition party, the Liberals, would never do this. The Liberals fell from grace after a long run as Canada’s dominant political party, and frankly, if they were still in power it’s likely they would have introduced C-11.

The NDP, in contrast, is a party very much in flux. It enjoyed a temporary surge of support in Quebec last year that propelled the party to official opposition status for the first time. The NDP continues to bring in new members in anticipation of its leadership election next month. And judging from the parliamentary debate on C-11 to date, the NDP has many members and allies in the artistic community. There’s clearly an opening here to move the copyright debate from the margin towards fundamentals.

Abolition is hard for a socialist party like the NDP to accept because of the fear that it will lead to further “exploitation” of artists by large corporations. Yet as libertarian scholars have argued in recent years, just the opposite is true. Corporate power is synonymous with state intervention. The larger, established firms will always have the advantage when it comes to securing government favors. The only practical, lasting solution is to remove the privilege entirely, not reform it by shouting “democracy” from the rooftops.

The NDP is in a unique position. It’s an opposition party that has never been in government. It doesn’t have to protect its establishment credentials as the Liberals do. And since the Conservatives do hold a majority, the NDP also can’t be accused of obstructionism. It’s free to oppose the government as loudly as possible without any public fear of an unwanted early election. And copyright is not an issue that enjoys deep support in any party, even the Conservatives. People support copyright more out of fear of the unknown alternatives. The NDP has a chance to present such an alternative in a manner that is consistent with the party’s overall ideology and membership.

Obviously, the Harper Conservatives would scream bloody murder if the NDP proposed abolition of copyright. Harper would raise the specter of Canada as a rogue nation, an outcast from the carefully crafted international norms of copyright. But, again, let’s remember the NDP is an opposition party. Their job is to oppose and present alternatives for public debate. Nobody expects the NDP would make any serious progress on such a proposal. Indeed, the NDP won’t even be able to stop C-11 as it now stands. What abolition would do is force the government on the defensive. The debate would no longer be about the scope of copyright, but whether it should exist at all in a world where technology has rendered it obsolete and an impediment to human progress.

The NDP could present a vision for a “liberated” Canada, where the end of copyright would make it a cultural and technological haven for the entire English-speaking world (and the French-speaking world, for that matter). It would also be the biggest Fuck You to the United States since the War of 1812. Canada doesn’t have to be a puppet to U.S. interests, especially on a subject where the majority of Americans don’t even support “U.S. interests.”

I previously addressed the Canadian government’s comical obsession with reforming the upper house of that nation’s parliament. But the Mother Parliament is no less obsessed. The Conservative-Liberal Democrat coalition that assumed power in the United Kingdom two years ago has been itching to do some major constitutional reform of its own.

The British House of Lords has always been a sore subject. It is, after all, a vestige of pre-democratic class theory. The Lords was historically a small group of peers who inherited their titles. They exercised equal power with the House of Commons until 1911. That’s when the shit hit the fan. The Conservative majority in the Lords thwarted the Liberal government’s efforts to introduce new taxes. The Prime Minister tried to create a bunch of new peerages to give himself a majority in the Lords, but King George V refused. The government called for new elections, prevailed, and the King acquiesced. To prevent a repeat of this stalemate, the government forced through the first Lords reform bill, which basically took away the Lords’ power to veto legislation passed by the Commons. The Lords could still delay legislation for a limited time.

Ironically, one of the few times the Commons used the 1911 reform bill to disregard the upper house was to pass a second Lords reform bill, in 1949. This time, the Labour government wanted to do some large-scale central economic planning without interference from the peers. So the 1949 law further reduced the time the Lords could delay the Commons’ mob rule.

Neither of these reforms altered the basic nature of the Lords as a non-elected body, although what was once a small group of hereditary peers was, by the late 20th century, a nearly 1,000-member chamber dominated by peers appointed for life (I don’t think a hereditary peerage has been created since the 1960s). When Tony Blair’s Labour government took power in 1997, they successfully moved to expel most of the hereditary peers, leaving just 90 with about 700 more life appointees.

Now David Cameron’s coalition wants to finish the job and convert the Lords into a mostly elected body. Last year the government circulated a draft bill that would create a chamber of about 300 members, 240 of them elected for non-renewable 15-year terms. Their terms would be staggered every five years to match scheduled House of Commons elections. The remaining members would be appointed by the government. (The reformed Lords would continue to include some bishops of the Church of England. Don’t ask.)

The government further proposes Lords elections depart from the traditional first-past-the-post system used for the Commons and instead use a single-transferrable vote. This means voters can rank candidates and if their top choice doesn’t win, the vote is then “transferred” to the next-ranked candidate until a candidate is elected. The Liberal Democrat part of the coalition tried to implement a similar system for Commons elections via a failed referendum last year. (I’d note many U.S. libertarians favor such a system for this country.)

Actually, Lords reform really is nothing more than a Liberal Democrat pet project to keep them occupied while the Conservatives run the government. There doesn’t seem to be any genuine enthusiasm among the Conservatives for this proposal. There’s already been numerous objections to the proposed size of the House — 300 is thought to be too small — and fears that an elected Lords would lead to deadlock with Commons. This mirrors the fears raised by opponents of Canadian Senate reform.

Canada provides an interesting compare-and-contrast. While the Canadian Senate is exclusively appointed, its membership is also strictly apportioned by region and province. The House of Lords has no ties to British geography. The proposed reform bill would create electoral districts that are larger than existing Commons constituencies. But the number itself, 240 as proposed, is completely arbitrary. It could just as easily be 400 or 800.

In Canada, the Conservative government is pushing Senate reform in part to strengthen its natural political base in the western provinces. With Britain, the third-place Liberal Democrats are betting that a chamber elected by single-transferrable vote will strengthen its meager standing in Parliament. In both countries, reform critics fear the unknown long-term consequences of holding a second set of legislative elections.

There’s also the common question of why have a second chamber at all. In Canada, the leftist opposition party and several provincial leaders publicly support abolishing the Senate. None of the British elite seem to favor that. There’s widespread agreement than some upper house is necessary. The government itself notes an elected Lords “would continue to scrutinise legislation, hold the Government to account and conduct investigations.” (Similarly, Canadian Senate defenders note it is a “chamber of sober second thought.”)

In both cases, the push for an elected upper house is an admission that the presently elected lower houses aren’t quite doing a thorough job of scrutinizing the government. Obviously, that’s bound to happen when the government controls a majority (or near-majority) of the lower chamber’s seats. The merging of executive and legislative power in the Commons means there’s little incentive for the chamber to scrutinize itself. At the same time, neither the British nor Canadian governments want to give up the “supremacy” of the Commons; they want elected upper chambers, but they don’t want to alter the constitutional alignment of power between the houses.

In my previous post, I sided with the Senate abolitionists in Canada. What concerned me the most was an elected Senate would be a competing body for power rather than a check on it. In particular, I thought an elected Senate might lead to a greater centralization of power by displacing the elected provincial legislatures. That’s not really an issue with Britain. The UK is already a highly centralized state in spite recent devolutions to regional parliaments in Scotland and Wales. The elected Lords would not correspond to or compete with any existing local governments.

Like the Canadian government’s proposed reforms, I also find the British government’s ideas a tad unwieldy. In Canada, there’s a written Constitution with specific amendment procedures. The government is trying to avoid directly amending the Constitution by using elections to “nominate” Senate candidates the government would continue to formally appoint. The British constitution is basically whatever Parliament says it is on any given day. Still, both proposals require the implementation of a complex new election scheme. More elections doesn’t equal better government or a greater protection for individual rights.

If I were the British Liberal Democrats, given my position as a progressive third-party agitator, I would actually go in a completely different direction. Instead of reducing the Lords to 300 elected members, why not just use the current system and appoint every single voter to the Lords? I’m dead serious. Unlike Canadian senators, there’s no statutory limit on how many peerages the Queen may create. So just make everyone a damn baron.

In effect, I’m proposing turning the Lords into a permanent national referendum on the work of the Commons, which is to say the government. Obviously you can’t fit several million people into the Lords chamber, which doesn’t even accomodate the current membership. And you’re not going stage elections, like you would for the Commons, on every single piece of legislation. But you could devise an online system that allows for debate and instant voting on contested measures. Sure, it would take time and money to develop such a system. So would creating and maintaining the elected House of Lords. Why waste those resources just to have 300 more politicians on the public payroll?

Thomas Mulcair is a Canadian Member of Parliament and deputy leader of the opposition New Democratic Party. He’s married to a French citizen and, in accordance with French law, applied for and received a French passport for himself, making him a dual citizen. According to a Canadian Press report,

Mulcair said he did so 20 years ago after an unsettling incident at Spain’s Madrid airport, where he was separated for 30 minutes from his wife and two then-young children because he was travelling on a Canadian passport while they had both Canadian and French passports.

Seems innocent enough. However, Mulcair is now seeking the leadership of the NDP following the death of former leader Jack Layton last year. If Mulcair wins, he would not only be leader of the official opposition in Parliament, but potentially the next prime minister of Canada if the NDP wins the next election, which will likely take place in 2015.

The Canadian punditry is divided. Some think it’s unacceptable for a potential prime minister to have “divided loyalties” between Canada and France. Others think it’s no big deal. It’s worth noting there is precedent here. Former Liberal Party of Canada leader Stephane Dion also held French citizenship — but, Mulcair’s critics note, Dion’s citizenship was automatic though his mother, whereas Mulcair sought his out. The late Jack Layton also publicly criticized Dion’s dual citizenship, though Mulcair claims Layton privately repudiated those remarks later.

Lorne Gunter, writing in the National Post, tries to explain why Mulcair’s dual citizenship should make Canadians uncomfortable:

Just as no person may serve two masters, it seems wrong that someone who wants to lead our country should also want to be a citizen of another at the same time. It’s almost like being married, but thinking it is okay to fool around on the side. And what does it say about a leader’s commitment to stay here and fight to make the country better when he has an escape card in his back pocket? That’s probably making too much of the situation. Neither Mr. Mulcair nor Mr. Dion before him have given any indication of divided loyalties or part-time commitment, still there is a nagging doubt I cannot get past.

The marriage analogy is interesting given what’s gone on this week in the U.S. Republican Party’s leadership contest. Former House speaker Newt Gingrich has angrily denied his ex-wife’s allegations that he divorced her after she rejected his demand for an “open marriage,” where he could stay married to her while continuing to fool around with his mistress (now his third wife). But as Gunter himself acknowledges, that doesn’t seem analogous to Mulcair’s situation. It’s not like he’s also running for office in France while seeking the NDP leadership. Muclair said his dual citizenship was made entirely for the convenience of his family, which seems like a pretty decent motive. And it’s not like France and Canada are mortal enemies.

I’d also point out that in politics, “loyalty” has always been a flexible concept. Take Mulcair’s history of shifting political allegiances. Before he was an NDP leader, he held office in the Quebec legislature under that province’s Liberal Party. He was even a provincial cabinet member under Liberal Premier Jean Charest, the former leader of the federal Progressive Conservative Party. Nobody seems to question Mulcair’s character or fitness to lead the federal NDP based on these shifts, which are fairly commonplace in Canada’s complicated federal system.

Then there’s the irony of criticizing Mulcair’s dual citizenship when Canada itself shares a head of state, Queen Elizabeth II, with 15 other independent nations. And she’s a British citizen descended from inbred Germans to boot!

Instead of questioning Mulcair’s “loyalty” to Canada over his French passport, perhaps we need to look at why he felt the need to apply for dual citizenship in the first place. Citizenship and passports are political creations of the state, designed to main control of its resident population. It’s nothing more than a restriction on the free movement of people. Mulcair wanted dual citizenship so he could have the same right to travel through Europe as the rest of his family, who were already dual citizens. The right of travel should not be tied to one’s declaration of “allegiance” to a mob calling itself the government. Then again, given Mulcair’s socialist politics, I doubt he’d appreciate this argument.

Following last November’s elections, Virginia’s Senate found itself equally divided between Democrats and Republicans, 20-20. Just as the vice president officially presides over the U.S. Senate, the lieutenant governor of Virginia presides over the state Senate and is constitutionally authorized to serve as a tie-breaking vote. This is particularly important when it comes to organizing the Senate and determining the makeup of committees where most of the real legislative work is accomplished. There’s no hard-and-fast rule on how to handle such situations. In the federal Senate, the vice president’s vote has been considered dispositive in determining partisan control. During the 107th Congress, which spanned the end of the Clinton administration and the start of the Bush administration, the Senate was divided 50-50. Vice President Al Gore gave the Democrats the majority until Vice President Dick Cheney assumed office and gave Republicans organizational control.

In 1995, when Virginia’s Senate was also divided 20-20, Democrats attempted to claim unilateral control through then-Lt. Gov. Don Beyer’s tie-breaking vote. Beyer declared there was no constitutional limit on his tie-breaking powers and that he would vote to give his fellow Democrats a majority. He was sadly thwarted by a single conservative Democratic senator who said he would oppose such an effort. This led to a “power sharing” deal where committee chairmanships and assignments were split equally.

Yesterday, when the new 20-20 Senate convened, Republican Lt. Gov. Bill Bolling opted not to follow the 1995 example, voting to give Republicans organizational control. Earlier this month, Bolling preemptively issued a memorandum outlining his views of the tie-breaking power. He noted the Virginia Constitution empowers the lieutenant governor to act as president of the Senate and cast any tie-breaking votes “unless another provision of the Constitution of Virginia has expressly imposed a limit on the Lieutenant Governor’s authority to cast a vote.” He cited several specific cases where the Constitution limits voting to “elected members” of the Senate, such as financial bills and election of judges, and on those matters, Bolling said he would not cast a tie-breaking vote on final passage. As for organizing the Senate, Bolling said no constitutional provision limited him, so he was “fully empowered” to cast the deciding vote.

Bolling struck what he hopes is perceived as a moderate position, giving fellow Republicans control while announcing limits on his future tie-breaking power. No doubt this is political self-preservation. Bolling plans to run for governor in 2013, so he doesn’t want to alienate fellow Republicans — who now control the governor’s office and both houses of the General Assembly — or independent voters, who might look at yesterday’s events as an excessively partisan affair.

I can’t really fault Bolling here. His memorandum makes a strong case. And the problem, if there is one, lies with giving the lieutenant governor the job of presiding over the Senate in the first place. The form and function of the legislative presiding officer has evolved erratically over the centuries. In Britain, the speaker of the House of Commons is completely impartial. Although chosen by the members, upon election the speaker is expected to sever all partisan ties and typically runs for re-election as an unopposed independent. The Canadian House speaker is also considered impartial, although he does not generally sever party ties.

Historically, upper chamber speakers were creatures of the executive. The Canadian Senate speaker is still appointed by the government. The Lord Chancellor, a British cabinet officer, presided over the House of Lords until recent reforms empowered the members to elect their own speaker. And in the United States, of course, the vice president has always been the Senate’s president, a role he actually fulfilled day-to-day until the latter half of the 20th century.

Once again, I’d note the cautionary warnings of my favorite framer, George Mason. At the constitutional convention — presided over by a very impartial George Washington, mind you — Mason objected to the whole idea of having an executive officer, the vice president, presiding over half of the legislature. The vice presidency itself was a last-minute addition to the final draft of the Constitution. It helped resolve a couple of issues. First, it fit in with the idea of having an Electoral College where each member voted for two candidates. Second, since the Senate would have two members from every state, appointing the vice president as presiding officer prevented a situation where one state would sacrifice half its Senate delegation to the impartiality of the chair.

The House speakership acquired a more partisan character early in the 19th century. This was due to the separation-of-powers itself. In the British and Canadian parliaments, the speaker serves as a buffer between the executive, which is largely composed of members of the legislature itself, and opposition members. But in the U.S., the House, Senate, and White House all constitute distinct centers of power. The House speaker, therefore, assumed a role closer to that of a prime minister or leader of the opposition than an impartial presiding officer. The vice president’s role as president of the Senate has largely withered away except when there’s a tie vote.

Lt. Gov. Bolling surprisingly took a more British-Canadian approach with his tie-breaking memorandum. While there are no statutory qualifications on a British speaker’s tie-breaking power, there are well-understood conventions regarding the practice. Generally, a speaker will vote to preserve the rights of the House. For example, he will break a tie in favor of continuing a debate. He will vote to support the government on a confidence motion — something that doesn’t exist in the U.S. system — but against final passage of a bill, as that conflicts with the principle that only a majority should pass laws.

Of course, let’s see if Bolling sticks to his memorandum if a major initiative supported by his fellow Republican, Gov. Bob McDonnell, comes down to a 20-20 vote. The memorandum itself is not legally binding. Bolling is still a member of the executive branch — McDonnell named Bolling to the ludicrous portfolio of “chief jobs creation officer” — and his preemptive attempt at statesmanship could still fall prey to his political ambitions. Bolling is facing a tough primary against the state’s attorney general, which only gives the lieutenant governor more incentive to use his current post to the maximum benefit of his party.

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.

Republican presidential candidate Ron Paul said today he would only take a salary of just $39,336 as president, an amount roughly equal to the average American worker’s income. Paul’s promise would not be legally binding. The Constitution provides a president’s salary — currently set by law at $400,000 — cannot be reduced during his term. So unless Congress changed the law before January 2013, President Paul would still be legally entitled to $400,000 annually. Of course he’s free to refuse all or part of the salary; George Washington famously refused to accept his $25,000 salary (about $312,000 in today’s dollars).

It’s interesting to note the American political system places the presidential salary on a pedestal. No other federal officeholder earns more than the president. This is not a constitutional mandate, merely a custom followed by Congress in fixing compensation. Other countries, particularly parliamentary systems, do not follow this standard.

This came up earlier today when I read an article detailing Canadian Prime Minister Stephen Harper’s newest nominations to that country’s Supreme Court. The article noted a puisne (associate) justice of the Supreme Court of Canada earns C$334,500 annually. That’s not only more than a US Supreme Court justice earns ($213,900), it’s more than Harper himself makes (C$315,462).

There’s an even greater disparity in the United Kingdom, where a Supreme Court justice earns nearly double (£206,857) the prime minister’s salary (£142,000).

A key difference between the US and the UK and Canada is that in the latter two, the prime minister is paid as a Member of Parliament with a stipend for concurrently serving as a minister. Both countries basically give the prime minister double an MP’s salary. Judges are paid according to a separate pay scale. Indeed, until recent judicial reforms in the UK, the head of the country’s judiciary, the Lord Chancellor, earned more than the prime minister, just as the Chief Justice of Canada continues to earn more than Prime Minister Harper.

Since American custom holds the president earns the most, every other office is valued against that. Supreme Court associate justices ($213,900) earn more than members of Congress ($174,000) but slightly less than the Speaker of the House ($223,500), who is paid the same as the Chief Justice.

Going down the line, US appeals court judges earn $184,500 annually with district court judges making $174,000. While, as Ron Paul’s proposal suggests, that far exceeds the average American’s salary, judges constantly complain they are paid too little. Indeed, US Chief Justice John Roberts regularly uses his annual report on the judiciary to lobby for pay raises, a practice I critiqued in a 2006 article. The gist of Roberts’ position is that the ever-widening gap between judicial salaries and private sector legal salaries will lead to a defection of talented judges leaving the country with only mediocre candidates.

Among the flaws in this argument is the fact that judicial offices are tenured. That should make the prospect of lower annual pay more palatable, since there’s almost no risk of being fired and the “prestige” of being a judge provides greater psychological satisfaction that working at a university or law firm.

Of course, there are the Canadians, who seem to pay judges well and give them tenure. Intermediate judges in Canada earn, on average, C$281,200 per year, about $100,000 more than their US counterparts. (Canadian judges do have a mandatory retirement age of 75, while US judges can serve as long as they wish.)