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!