The Senate matters
Let’s start treating it with respect
It must be the dog days, since Senate reform is in the air. On Friday the Prime Minister announced a moratorium on new Senate appointments, and in the past he’s supported the idea of elected senators. Tom Mulcair would simply abolish the Senate (as if that’s about to happen), and Justin Trudeau has expelled Liberal senators from his caucus.
And I’m here to wave the flag and say not so fast! The Fathers of Confederation weighed the costs and benefits of an elected Senate, but in the end rejected the idea. An elected Senate would have a democratic legitimacy that an appointed Senate lacks, and could therefore claim to be speaking for the voters when it rejected bills passed by the House of Commons.
We’ve seen what gridlock has done to government in the United States, where the House, Senate and President must all be lined up in a row before a bill becomes law. That was supposed to prevent bad laws from being enacted, but it too often prevents anything from getting done and has made bad laws impossible to repeal. While American immigration and tax laws are widely acknowledged to be a mess, there’s not much that can be done about them. By contrast, there’s a reverse gear in a parliamentary system, with its unitary form of government, where it’s far easier to repeal a bad law. Since it’s often difficult to see whether a law is good or bad, except after the fact, there’s a real advantage to non-elected senates.
At the same time, we wouldn’t want an all-powerful Prime Minister either, and the genius of the Anglo-Canadian parliamentary system is the way in which it enables an effective government while empowering a legitimate opposition. When government back-benchers meekly follow their instructions from the Prime Minister’s Office and government whips, when cabinet meetings are simply a venue where its members are told to get with the program, the House of Commons has become the Opposition’s playground, a place to badger, attack and occasionally bring down a minority government. “No better method,” observed Harold Laski, “has ever been devised for keeping administration up to the mark.”
The Senate, too, stands in opposition to the Prime Minister and the House of Commons. Were it more powerful, it could place a final veto on government legislation, we might fear the resulting gridlock, and the democratic deficiency of an appointed body. But as it is, the Senate is limited by convention in its ability to block government legislation. It has killed private member’s bills, notably the Climate Change Accountability Act in 2010, but that leaves the Opposition under a minority government with the option of moving non-confidence and going to the people. But for the fact that the Opposition’s polling numbers told them to expect the Tory majority Harper received in 2011, they might indeed have done so.
It is curious, then, that some of the same people who complain of the accumulation of power in the Prime Minister’s Office, indeed who complain that Stephen Harper is less than tolerant of criticism and stifles dissent in his own party, should also wish to empower him by removing an institution that stands in his way. I should have thought that his critics would have rushed to defend an institution that can trace its roots back to our country’s earliest days, and which historically has defended democracy by standing in the way of a governing party.
One example of this came in 1988. The 1984 general election had given Brian Mulroney a majority government with the largest number of seats in Canadian history, but not a mandate for a highly controversial free trade agreement with the United States, which Mulroney had opposed when running for the Tory leadership in 1983. When the government came down with legislation approving the agreement, the Senate blocked Mulroney and he felt compelled to go to the people. The government emerged with a reduced majority, but at least the people had spoken, and the episode showed how the Senate, far from being anti-democratic, is in fact a bulwark of Canadian democracy.
Then there’s the useful work the Senate does in vetting legislation. Washington told Jefferson that the American Senate would be a cooling- off place, a chamber for sober second thoughts, but that’s how the Canadian and not the American Senate works. Anyone who reads the 1,000-page American bills, drafted in the middle of the night by 20-something legislative assistants fuelled by pizza and Red Bull, knows there’s little enough scrutiny given to their legislation. “Inartful” was how Chief Justice John Roberts charitably characterized the manner in which Obamacare was drafted. In Canada, by contrast, Senate committees parse bills carefully, and even government back-benchers routinely appear before Senate committees, since they’re generally shut out of the legislative process in the Lower House. The work of the Senate’s Legal and Constitutional Affairs Committee in Charter-proofing legislation is particularly valuable, given the government’s propensity to pick fights with the Supreme Court.
As the Supreme Court has noted, the Senate is one of Canada’s “foundational pol- itical institutions.” And have we, over our history, done so badly with our senators? Consider the following list: Sid Buckwold, Thérèse Casgrain, Claude Castonguay, Solange Chaput-Rolland, Roméo Dallaire, Keith Davey, Eugene Forsey, Carl Goldenberg, Jean Marchand, Paul Martin Sr., Wallace McCutchen, Arthur Meighen, Grattan O’Leary, Chubby Power, Louis Robichaud, Duff Roblin and Hugh Segal. Some you might like, some not, but all were serious and worthy members of the Upper House, who could tender valuable advice to the government and to Canadians in general.
If appointments are suspect per se, moreover, what shall we say of the American cabinet, all of whose members are appointed by the President. In Canada, cabinet members are sitting MPs, or occasionally members of the Senate. That’s not permitted by the American Constitution’s Incompatibility Clause, which bars Congressmen from serving in any civil office, and which ensures that the United States could never adopt parliamentary government. That’s arguably been a blessing for the United States, for it has permitted presidents to appoint to high office people who could never have won an election. Think of the Teutonic Henry Kissinger, the imperious John Foster Dulles, the aristocratic Dean Acheson, all Secretaries of State. Or scholarly Edward Levi, the law school dean who become Gerald Ford’s attorney-general after the turmoil of Watergate. And if it’s elections you like, would you have elected judges, as they do in the United States?
Prime ministers should therefore think of the Senate as a useful place to put worthy cabinet members who could never win an election. Some might find this prospect troubling. Others might think the absence of the typical politician’s self-regarding and smarmy traits a positive virtue. In any event, it would broaden the talent pool.
As we’re talking about Senate reform, let me offer my bright ideas. Let’s double Senate salaries. At present they make $142,000 a year, or $7,000 a month after taxes. MPs have a base salary of $167,000 a year, and it’s scandalous that they’re better paid than Senators. Here’s why. The average MP is years younger than the average Senator, and we’d expect higher salaries for elder statesmen in the Upper House. We’d want to attract the most intelligent and able senior legislators, and yet we’re paying them what associates on Bay Street make. That’s fine, if you want to fill up the Senate with party hacks, but not if you want people who can serve with distinction. Doubling Senate salaries would bring them in line with what members of the Ontario Court of Appeal earn, and that’s a fair measure of their importance.
While we’re at it, let’s get real about travel expenses. With a take home pay of $7,000 a month, we expect Senators to have a house in Ottawa and some connection with the province for which they are appointed. For non-Ontario Senators, that typically means two residences and it’s silly to get worked up about travel expenses between them, or about just what a Senator’s living arrangements are back in Saskatchewan.
Come to think of it, if we tripled their salaries the problem would entirely disappear.