Two (well, maybe one) cheers for the Senate!

It’s time for a confession. I like the Senate. Not just the general idea of bicameralism, and of an upper chamber. I actually kind of like our Senate, in all of its unelected glory. Now I will grant you that these have been hard times for Senate-lovers, or perhaps I should say Senate-likers, like myself, what with the Pamela Wallins, the Mike Duffys, and the Patrick Brazeaus. But we should not judge an entire institution by sole reference to a few bad apples. Very few of our institutions would survive that kind of scrutiny. And at the same time as we quite justifiably look for ways of ridding the Senate of the kind of corruption that has been brought to light in recent years, we also have to acknowledge the excellent work that it has been capable of. For example, anyone who wants to read a sane, well-documented, and well argued piece on drug policy could do a lot worse than picking up the report on cannabis that was published in 2001 by a Senate committee chaired by Pierre Claude Nolin.

But the basic case for an unelected Senate rests in the very nature of our central parliamentary institution, the House of Commons. Our lower house vests an inordinate amount of power in the office of the Prime Minister. It is sometimes said that very few democratically elected officials wield as much power as the Prime Minister in a Westminster-style parliamentary system. The combination of “Duverger’s Law” – the tendency of first-past-the-post systems to yield stable majority governments — and the institution of party discipline make it the case that a sitting Prime Minister presiding over a majority government does not have to be particularly consultative at all. It is important for the overall health of such democratic systems that this concentration of power be checked.

Another feature of democratic systems – this one not peculiar to our style of parliamentary system – also seems to call for an upper chamber. Basically, the 4-5 year electoral cycle does not naturally lend itself to prudent public policy-making. Public policy requires the adoption of at least a medium-term perspective that often seems unavailable to our elected officials. Good public policy is also very often policy that does not so much give rise to good effects, as prevent bad things from happening. When it works, it is therefore largely invisible. But politicians aiming for reelection in the short term are naturally disposed to quick, showy policy “wins”. It is important for there to be some place in government where the longer view is more naturally adopted.

There are therefore epistemic and prudential reasons for the existence of a second chamber. Of course, not just any second chamber will do. Elected senates risk falling under the control of the governing party, which would simply accentuate the problem of the concentration of power. (Conversely, if the upper and lower chambers are controlled by two different parties, then, as our neighbours to the south know quite well, gridlock can ensue). What’s more, if senators have to worry about reelection, it is harder for the Senate to embody the longer term and more dispassionate perspective on policy that the lower house is less well equipped to achieve.

If you want an upper chamber that can constitute a counterweight to the concentration of power in the PMO, and whose members can take the long view on public policy matters, then you pretty much have to go the unelected route.

Now, this is not to say that our Senate could not do with some reworking. At present, nominations to the Senate are, for the most part, patronage appointments that reward loyalty to the governing party rather than any particular qualification for the job. Senators who owe their livelihoods to the largesse of the governing party are not likely to act with the independence of mind that should characterize a well-functioning upper chamber.

Presumably, this could be fixed with a little bit of institutional imagination. Rather than electing Senators, which would require an amendment of our Constitution, one could for example imagine a standing committee, at arms’ length from the government, whose job it would be to entertain, and perhaps even to solicit, candidates to the upper chamber. How would that committee be staffed? Wouldn’t the composition of such a committee necessarily end up reflecting the balance of power within the lower house? Not necessarily. Here’s an idea? Why not consider staffing it (the committee, not the Senate) by lot? I know – that sounds crazy. But appointment by lot has been an integral part of democratic systems throughout history, and there is still an echo of this mode of appointment in our jury system.

The basic message here is that democracy is not just about majoritarianism. To be sure, elective majoritarian institutions are at the heart of any political system that can rightly call itself democratic. But to say that such institutions are central to democracies is not to say that democracy reduces to them. We are quite used to the idea that unelected judges carrying out judicial review are an important part of liberal democracies, because majoritarian institutions cannot always be trusted to respect minority rights. If we look a little closer at institutions within our democratic system that sometimes fly below the radar, we find things like auditors general, unelected officials who keep an eye on the democratically elected government’s use of public funds.

An unelected Senate, appointed in a manner that avoids the shenanigans that our present mode of nomination invites, is part of the set of non-majoritarian supporting institutions that allow the majoritarian core of our democracies to function better, by protecting them against tendencies that they might succumb to if left entirely to their own devices. We should appreciate the role that it performs in parliamentary democracies, and think about ways of fixing it so that it is better able to carry out its function, rather than doing away with it altogether, as the NDP has suggested, or modifying it beyond recognition, as Harper’s Conservatives would have done, but for the Supreme Court’s reminder that you can’t just change the fundamental institutions of a democratic system by a simple majority vote in the House.

So two, (well, maybe one) cheers for the Senate!


Two (well, maybe one) cheers for the Senate! — 4 Comments

  1. How about trying a representative Senate, rather than a collection of political hacks? Neither an appointed Senate or an elected one will ever be representative. Do like the the ancient Athenians and draw lots for potential Senators. People avoid jury duty because of the low pay / loss of income. The Senate salary of $138,700 per annum ( and $161,200 for staff to do all the work outside the Red Chamber) would get a much better response rate.

  2. One way to have a democratic unelected Senate is to select citizens by lottery to compose this body. This idea is often shot down by the thought that you need people with lots of knowledge in the Senate but it is worth recalling that actually what you need for good decisions is diversity (contemporary psychology backs Aristotle on the wisdom of the multitude). Many of this proposed this when House of Lords reform was on the agenda here and were laughed out of court but in the history of political institutions, sortition has a respectable place (and even persists in juries).

  3. Daniel,

    I’m surprised by your support for a non-elected institution with the power to make and shape the laws that govern this country.

    I have a confession too. My first job when I moved to Ottawa in 1989 after finishing law school was as a researcher and speech-writer for a Senator (a former President of the Liberal Party appointed by Lester Pearson). After completing the Bar Admission course I had a part-time contract working for him writing speeches during the Liberal filibuster of the GST legislation. Similarly, I wrote a memo for Opposition Leader Royce Frith which he used in a speech to make the case that Mulroney’s appointment of Michael Forrestall was inappropriate because he did not meet the constitutional qualifications to sit as a Senator…he had a “vested remainder interest” in his parent’s property in the region he was supposed to represent (through their will), and was not in fact “seized” of the property as the constitution requires. Nonetheless, the constitutional requirements were conveniently ignored by the “conservatives” (seems to be a pattern). The only way that the Senator Eugene Forsey (the historic dean and fountain of Senate wisdom) thought he could be removed was by a vote of the Senate, which was unlikely given Mulroney’s partisan emphasis at the time on stacking the Senate to ensure his GST legislation went through.

    Having two houses in Parliament is certainly appropriate for any federal government where one house is based on the representation of the population and another on the regional representation. Just as the US Senate has members representing states, ours is supposed to be composed of certain number from the provinces (and be seized of a whopping $4,000 worth of property in their respective areas to represent their landed gentry status and unquestionable interest in the good governance of the area). While a Senate is certainly an appropriate component of Parliament, its unelected status, like that of our Head of State, is an embarrassing and anachronistic relic of middle age feudalism. It is a shame that in this modern day and age we would still have academics promoting and attempting to justify the existence of such a disgraceful institution using such specious arguments.

    Regarding the “excellent work” of the Senate, and your example of a 13 year old committee report regarding cannabis, let’s put things in perspective. The Senate is required to consider, and must approve, every bill before such bills become law. As an unelected body, its members know that they have absolutely NO LEGITIMACY and therefore rubber stamp EVERY bill. Yes, you can find a few exceptions since 1867, but the record is basically 100% of what the House supplies is eventually rubber stamped. Yes, there may be some good proposed amendments, but when push comes to shove, Senators generally hold their noses and vote in such a way as to remain inconspicuous. The “second thought” is minimal. Sure the committees may occasionally conduct interesting studies and make some very sensible recommendations to the government, but what is the destiny of these reports? A spot on the Parliamentary library shelf. Why? No legitimacy. Who voted for them? Who do they represent? Who are they accountable to? Ergo, who cares what they think?

    As currently structured and composed, the Senate is a grotesque waste of money and a pathetic attempt at camouflaging parasitic patronage and entitlement as something which is somehow supposed to benefit Canadians. The only remedial feature is the forced retirement at 75. Consider this: Brazeau was born in 1974 and was appointed to the Senate in 2008 at the age of 34. He could be on the taxpayer’s payroll (with office staff, etc.) for over four decades before being forced to resign, and then he would be entitled to a hefty pension for the rest of his life. When he occasionally shows up (his attendance record was so poor it was newsworthy) he will act as nothing more than a trained seal. And that’s worth it because of a report on dope? Excuse me?

    You can propose changing the appointment process all you want, but until Senators are elected, they will remain vestiges of a period in history prior to “the enlightenment”.