Having Second Thoughts

andrepratty -- bruce camption-smith:torontostarAndré Pratte led the charge against inclusion of the proposed infrastructure bank in the government’s budget bill (Credit: Bruce Campion-Smith/Toronto Star)

What do you do when you’re in trouble, and you want to divert attention from your failings? Change the channel, of course! Changing the channel is a time-honoured and well-tested political manoeuvre. We need only to look south of the border for a beautiful example. While Trump has pioneered a twist on the traditional “change the channel” mechanism by leaping from one scandal to a second, different scandal, it has proved remarkably effective in limiting the time and energy spent on any number of events that would have doomed other figures.

As exciting as the fast-moving but seemingly endless train wreck of the Trump administration is, a different topic is at hand today. Why discuss the most important political phenomenon of this decade when you could talk instead about the Canadian Senate?

Yes, the Senate. The unelected upper body also seems to stumble from scandal to scandal, and is constantly under threat of radical reform, if not outright abolition. And the past few years have not been kind to the august chamber. It has undergone a long series of expense scandals, competing petitions for reform, the severing of ties between the government and its senatorial caucus, and finally the forced resignation of a senator accused of sexual misconduct.

Among these events, it is the dissolution of the direct affiliation between the Liberal party and its former caucus that has most changed the nature of the body, but it was the scandals themselves that contributed to the poor image of the Senate that made that move possible (and attractive).

So what did the Senate try to do? Change the channel!

Which actually worked. Where a month ago we were all, I’m sure, discussing the Conservative party’s reaction to the allegations against Don Meredith, we’re now having a substantive discussion about the role of the Senate in Canadian democracy.

This is well-trodden ground for the Senate, a normal battlefield where they can fight a normal fight, and lose in a normal way. Rather than taking repeated hits to its reputation as an institution, the Senate has instead reverted the narrative to the normal questions about its troublesome position within the constitutional framework. Job well done.

We might as well go along this narrative, at least until the next senator makes a silly — or nefarious — mistake. And there actually is a reason to be interested (as interested as one can possibly get discussing the Senate), because the Senate does seem to have fundamentally changed as a result of the demise of the Liberal caucus.

The bulk of the changing-the-channel effort has taken of the form of an aggressive stance against of a couple of key pieces of legislation put forward by the government and passed through their House majority in recent weeks. Senators, including many former Liberals, objected to provisions concerning the proposed infrastructure bank and to clauses that would result in automatic (i.e. not requiring another parliamentary vote) tax increases on alcohol.

The jettisoning of the Liberal caucus (as of January 2014) matters because, theoretically, it would allow for more confrontations like this. Now nominally independent, the Liberal senators can’t be whipped like they used to be. Or at least, that’s the idea.

But, wrapped up in their scandals, the Senate hasn’t pushed back meaningfully against any legislation until now. And, as many commentators have pointed out, they’ve picked their battles well. The infrastructure bank has been a surprisingly thorny issue, and tax hikes on alcoholic products are almost inherently unpopular.

But the discussion surrounding this confrontation shouldn’t be on the confrontation itself — who won, who lost, and how — but why it is happening at all.

At the heart of the issue is the fact that the legislation concerning whether the Senate has the right to contest these matters is crystal clear: it does. What we are arguing, instead, is about the murky web of custom and traditions that has guided the relationship between the Commons and the Senate.

Prime Minister Trudeau’s decision in 2014 upset those traditions by creating, at least theoretically, a more independent body that could be capable of meaningful parliamentary oversight and recommendation. While the demarcations that set out where the Senate is allowed to fight the government have not changed, what may be different is how effective the Senate is able to be within those boundaries. Moreover, the custom-defined boundaries within the hard legal limits may also have changed, meaning that the Senate could look to challenge the government on issues that are within its rights but were political non-starters in a less independent Senate.

The significance of this discussion lies in an as-yet unproven assumption: whether the Senate is actually more independent now than before January 2014. But even if it isn’t substantially more independent in practice, it is so structurally. And if the Conservative Party were to follow suit in disbanding its Senate caucus (perhaps spurred by another scandal), the journey towards a Senate that is “… non-partisan, composed merely of thoughtful individuals … independent from any particular political brand,” as Trudeau put it, would be begun in earnest.

But the whole situation is further confused, in my mind, by lingering uncertainty over whether the Senate should exist at all. At times, I’ve felt that the Senate is clearly beyond saving, or that it was not worth saving even if it were possible.

But my view has changed, and I’ve adopted the philosophy that if an ideal version of something is imaginable, it’s usually better to work towards it than not imagine an ideal at all. In this mindset, it’s better to try to improve the Senate in a way that makes it better, rather than eliminate it altogether.

The recent confrontations with the government have further solidified this idea in my mind. Especially in a system that allows for the possibility of majority government, it seems prudent to maintain a body capable of effective parliamentary oversight and critique: the fabled “sober second thought.” With no party in the Commons capable of denying the Liberals, it falls to the austere members of the upper chamber to hold the government to account. Of course, this risks relying to an unhealthy degree on elites —elites that are themselves unaccountable.

So then some people will propose reforms to make the Senate more accountable and democratic by, say, making it elected. But this in turn risks undermining the theoretical non-partisanship that makes “sober second thought” possible and worthwhile. But it isn’t possible for a body that is appointed or elected to be non-partisan, some will suggest. Better to get rid of it altogether. And so the debate goes round and round.

Still, I think that it is better to have a vision of something that could be positive, rather than simply hoping to eliminate a perceived negative. So I’d rather work towards a Senate that is either independent and effective or democratic and accountable, or some divine combination of the two.

In this view, the confrontation between the Senate takes on a new significance. The ostensible result of Trudeau’s 2014 decision was to make the Senate more independent and possibly more effective, and this is exactly what has been borne out in recent weeks. Basically, the Senate has stood up and done its job — at least the job an independent, complementary, but still subordinate body would see itself as having. And when it ran up against the limits of its power, it yielded to the will of the elected body. Even without the convenient collapse of opposition among former Liberal senators, the Senate could hardly have resisted the government for much longer — nor should it have, in this case. So in essence, everything is working as intended.

That hardly seems like an exciting conclusion to draw from recent events, but, well, there it is. Luckily for us, the Liberals still have narrow political considerations beyond the healthy functioning of Canadian democracy. (Which is not to suggest that this is even the greatest part of what they had in mind in 2014). In fact, it’s clear from the past few weeks that the decision to cut loose their Senators has caused the Liberals a great deal of grief, and they may be having their own second thoughts on the matter.

But in pursuit of a Senate closer to an imaginable ideal (an independent, accountable, democratic, effective, non-partisan, responsive, fiscally sustainable unicorn/chimera) the Liberals should stay the course, and work within the democratic system that they helped to design. Let’s be fair: they still passed the budget that they wanted, even over the Senate’s objections.

Heck, if the idea of an independent, effective Senate catches on, the Liberals might eventually be forgiven for breaking their promises on electoral reform for the Commons.

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