Canada’s dysfunctional Senate becomes top campaign issue

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You might think it’s hard to imagine any legislative chamber more dysfunctional than the US Senate, with its arcane rules, political polarization and virtual requirement that all legislation survive by a filibuster-proof majority.Canada Flag Icon

But Canada’s upper-chamber Senate actually surpasses its American counterpart for ineffectiveness — and as Canadians begin to focus on the October general election, a scandal involving expenses that implicates prime minister Stephen Harper’s chief of staff and Harper’s belated push for Senate reform could play a pivotal role in the campaign.

Unlike U.S. senators, Canadian senators aren’t (typically) elected. Instead, they are appointed by the governor-general, the mostly ceremonial representative of Canada’s even more ceremonial head of state, Queen Elizabeth II. In practice, though, Senate appointments are made upon the prime minister’s recommendation, and he (or she) typically advances candidates on a political basis. Often, prime ministers appoint former MPs and party grandees who have actually lost elections, further emphasizing the undemocratic nature of the Senate.

The Senate’s 105 seats are allotted by province — but not in any way proportional to Canada’s population in the 21st century — Ontario and Québec have 24 each, Nova Scotia and New Brunswick 10 each and British Columbia, Alberta, Manitoba, Saskatchewan and Newfoundland each have six. Prince Edward Island, with a population of around 150,000, has four senators — that’s two-thirds the allotment for British Columbia, which is home to over 4.6 million Canadians. Senators essentially serve for life, though a 1965 reform instituted a mandatory retirement age of 75.

Senate approval is required to enact Canadian legislation. In practice, however, the upper chamber proves a far less contentious chamber than the U.S. Senate, functioning more like the British House of Lords. Bills almost exclusively originate in the lower chamber, the House of Commons. It’s usually a big deal when the Senate blocks legislation — its opposition to the 1988 free trade bill sparked a snap election over NAFTA, and in 2010, it rejected a bill (supported by every party except the Tories) that committed Canada to sharp reductions in carbon emissions by 2020. Generally, though, its activity is limited. Given that its members aren’t elected representatives, that’s probably a reasonable outcome.

Though Harper originally came to power in 2006 on promises to find a constitutional fix, he too eventually appointed his own senators — 59 of them — between 2009 and March 2013, three of which were elected in Alberta under an experimental scheme to elect their own senators. 

Harper initially hoped to transform the Senate into an elected body with established, limited terms. But the Canadian supreme court ruled in early 2014 that because the Senate is one of Canada’s ‘founding political institutions,’ reform is a constitutional matter. That, in turn, means that Senate reform will require a delicate effort to win support from at least seven provincial governments that together incorporate 50% of the Canadian population.

For veterans of the bruising constitutional fights of the 1970s and the 1980s, from Meech Lake to Charlottetown, there’s good reason any prime minister would want to avoid spilling so much political capital. The position of Québec, and the platform that a constitutional negotiation would give to the province’s French-speaking separatists, would alone be enough to make even the most determined prime minister think twice.

Harper simply responded to the judicial setback by refusing to appoint any new senators — for over two years and running. Earlier this summer, Harper confirmed that he indeed placed a moratorium on appointing new senators, and he demanded that Canada’s provinces come together to find a solution to a costly, ineffective and undemocratic upper chamber.  In his July statement on the Senate moratorium, he bragged that he was even saving Canada money by lowering the costs of administering 22 fewer senators.

But today, over one-fifth of Canada’s Senate is vacant. As the Senate fades from attrition and retirement, the upper chamber will slowly cease to function — soon, there will be too few senators to fully staff committees, for example. It’s a smart political gamble, because it forces the issue of Senate reform back to the provinces (though it’s not clear that provincial governments necessarily care about their representation in the Senate to find a solution).

It’s also an arguably unconstitutional gamble, and if Harper wins reelection in October, he will almost certainly be forced by Canada’s supreme court to make additional appointments eventually — at least 23 more vacancies will open before 2019.

duffyPhoto credit to Canadian Press.

There’s an even more explosive angle, however, to Harper’s road-to-Damascus turn toward democratic reform. One of the senators that he appointed in 2009 was Mike Duffy (pictured above), a longtime CTV political television news reporter appointed, ostensibly, to represent Prince Edward Island, though Duffy had lived in Ottawa for decades. Duffy immediately started claiming expenses for his living expenses in Ottawa, among other things. Though he eventually relented and offered to pay back around $90,000 in living expenses, he did so after Harper’s own chief of staff, Nigel Wright, paid Duffy $90,000 in personal funds to help him reimburse the expenses.

Fast-forward four years, and Canada’s 2015 general election campaign is coinciding with Duffy’s criminal trial for fraudulent expenses, and he’s not the only one. Since 2012, Duffy joins two other Harper-appointed senators, Patrick Brazeau and Pamela Wallin, who were suspended from the Senate without pay. The Canadian auditor general suggested that 30 senators had filed ineligible expense claims and they actively referred nine senators for police investigation.

As the Duffy trail unfolds, it’s a daily reminder, at best, of the Senate’s inefficacy and Harper’s inability since 2006 to enact reform. At worst, it will show that Harper’s top aides worked behind the scenes to hide the excesses of the Tory senatorial appointments over the expenses scandal. It will be hard for many voters to believe, for example, that the prime minister’s office didn’t try to influence a key expenses audit or that Wright paid $90,000 to Duffy without Harper’s knowledge. As the trial dominates Canadian headlines this week, the Tories are falling further behind the New Democratic Party (NDP) in the polls.

Politically speaking, Harper has calculated that his hard-nosed attempt to force Senate reform will be more important to voters than any lingering association with Duffy or the expenses scandal. But if Harper loses reelection, he will have forfeited a potentially stronger Conservative edge in the Senate. Tories now hold 51 seats in the Senate (to just 29 for the Liberals). But if Harper loses, he’ll cede to the next government the ability to ‘stack’ the Senate with 22 new appointments that might otherwise have been Conservative. That means that if the Tories wind up in opposition, they will soon lose their ability to use the Senate to block an NDP or Liberal government.

Harper, though, isn’t the only one who wants to change Canada’s parliamentary structure. The NDP has long sought to abolish the upper chamber altogether (something Harper now even contemplates as, perhaps, the easiest solution) and NDP leader Thomas Mulcair openly discusses bringing together provincial premiers to make Canada’s parliament unicameral.

The Liberal Party hasn’t necessarily embraced such radical reforms. Nevertheless, its new leader Justin Trudeau formally kicked the Liberal senators out of his parliamentary caucus, making them, as a technical matter, ‘independent Liberals’ in the Senate. He has also advocated for a non-partisan appointment process, though the mechanics for that process could be cumbersome.

Calls for Senate reform are nothing new — reformers have sounded the alarm since Confederation in 1967. The most serious attempt came in the 1980s through the so-called ‘triple E’ plan, whereby senators would be elected from provinces in equal number and exercise more effective powers over the legislative process.

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