Make the provinces pick them
While the Supreme Court seems to have slammed the constitutional door shut on consultative elections for Senators, the Senate reform/ abolition issue is not going to disappear. The trial of Senator Mike Duffy and the results of the Auditor-General’s investigation into the abuse of senators’ expense accounts will keep the Senate in the political mix. With a federal election scheduled for later this fall, all the federal parties will be forced to address the future of the Senate.
Prime Minister Stephen Harper responded to the Court’s ruling by declaring that he would not propose any constitutional amendments to reform the Senate and would focus on reducing the costs of the Senate to Canadian tax payers. He has also refused to appoint any new senators as several mandatory retirements have occurred. The New Democrats will continue to press for the abolition of the Senate — their position for the past several decades — but now with the support of the Saskatchewan Premier Brad Wall.
Harper’s loss in the Supreme Court and subsequent retreat has prompted the leader of the Liberal party, Justin Trudeau, to wade into the Senate reform issue. Trudeau evicted all senators from the Liberal caucus, and declared that as prime minister, he would adopt an “open, transparent and public process for appointing and confirming Senators.” Whatever this might mean, I agree with Ian Brodie’s analysis that Harper cannot go into the next election ceding the issue of Senate reform to the Liberals. Brodie suggests that Harper might capitalize on the anticipated “bad news” of Auditor-General’s report by either slashing Senate funding or formalizing his de facto embargo on any new Senate appointments, or both.
I recommend a different political exit from this judicially-created constitutional dead-end. If Harper wants to put real pressure on provincial premiers to opt for Senate elections, he should just declare that he is handing over the nomination of Senators to provincial governments to choose however they want — with or without elections. His message: “Send me a name, and I will pass it on to the Governor-General.”
While this may sound random, there are solid precedents for this approach in other federal states. Members of the United States Senate were chosen by state legislatures until the ratification of the 17th Amendment in 1913. Still today in Germany, this is basically how senators are chosen.
If Harper were to try to formalize this method by a statute, the Supreme Court would almost certainly declare it unconstitutional for the same reasons given in the Reference. But if Harper were simply to do this as a matter of practice, what could the Court say? Presumably the Governor-General would accept a name provided through this process. He has already appointed the four elected Alberta Senators. Would the Court rule against the Governor General’s exercise of his discretion “to summon qualified persons to the Senate”? Highly unlikely.
At a minimum, this approach has the negative merit of getting the issue off Harper’s plate and making it the problem of provincial premiers. It would also provide the Conservatives with a clear, simple Senate reform policy to counter Justin Trudeau’s platitudes about doing appointments differently.
It also has some potential positives. It would bring a broader ideological diversity to the Senate, with the possibility of separatists from Quebec or NDP appointments from other provinces. It would also give real meaning to what until now is the Supreme Court’s hollow invocation of the Senate as a chamber that provides “a distinct form of representation for the regions … and “assure(s) their voices would continue to be heard.”
Most importantly, it has the potential to put in motion a new set of political incentives that could lead to Harper’s ultimate goal — popularly elected Senators. Up to now, only Alberta has acted on Harper’s offer to appoint elected senators. This is not surprising, as there has been no political cost to provincial premiers for ignoring Harper’s offer.
This would change if one of the province’s Senate seats is sitting empty because of the premier’s inaction. Initially, some (maybe most) premiers might use this new power to reward party friends and donors. But those who did would quickly come under fire from provincial opposition parties and local media for replacing federal patronage with provincial patronage — with the same political stench.
Premiers and opposition parties would be forced to come up with some new policy on how to “nominate” provincial senators. While there are several models to choose from, consultative elections is the most obvious. How many party leaders will want to campaign against democratic elections?
Is this scenario too farfetched? While it certainly wouldn’t happen over-night, this is basically how the United States evolved from an appointed to an elected Senate — through the part i s an dynamics of s t at e politics, not pressure from Washington. Starting with Oregon in 1908, 33 states had adopted the use of elections for choosing their senators before Congress proposed the 17th amendment in 1912. If Harper were to hand over Senate appointments to provincial premiers, it is certainly plausible that a similar dynamic might unfold in Canada. After all, as the Supreme Court has told us, both democracy and federalism are two of our core constitutional values.
Harper needs a Senate reform plan to counter the Liberals’. This could be it