An Elected Senate: Recipe for Gridlock

We can’t get rid of the Senate, nor would we want to do so. In quiet committees, removed from public gaze and the passions of the day, the senators perform a useful role, subjecting legislation to careful scrutiny. With greater experience than his colleagues in the House of Commons, a Senator can take a longer view and see unintended and unexpected consequences. And the cost is trivial.

Published on August 13, 2013

Here’s what sec­tion 24 of the Con­sti­tu­tion says about the way Se­na­tors get picked: “The gov­er­nor gen­eral shall from Time to Time, in the Queen’s Name, by In­stru­ment un­der the great Seal of Canada, sum­mon qual­i­fied Per­sons to the Se­nate.” What that re­ally means is the prime min­is­ter does the pick­ing — on just about any ba­sis he pleases. And he may, if he wants, pick peo­ple who have won an elec­tion in their re­spec­tive re­gion.

Or not. Noth­ing stops a Tory prime min­is­ter, even one who has sworn up and down that he’ll re­spect the voice of the peo­ple, to ig­nore an in­con­ve­nient sen­a­to­rial “elec­tion” in Que­bec. Or a Lib­eral prime min­is­ter who doesn’t re­ally care much for the duly elected sen­a­tor from Al­berta.

Of course, with a sen­si­ble plan for re­form, per­haps one might be able to per­suade the req­ui­site ma­jor­ity of pre­miers to go along with a con­sti­tu­tional amend­ment that locks in an elected-sen­ate scheme. But be­fore we em­bark on that dif­fi­cult project, I would urge Cana­dian to ex­am­ine a cau­tion­ary tale from Aus­tralia.

In 1974, gough Whit­lam’s Labour Party took of­fice in Can­berra, win­ning a ma­jor­ity of seats in their House of rep­re­sen­ta­tives. The Se­nate, how­ever, was in the hands of the con­ser­va­tive Lib­eral-Coun­try party, and for the next two years it re­jected a se­ries of gov­ern­ment bills. In 1974, Whit­lam won re­elec­tion in the House of rep­re­sen­ta­tives on the is­sue of gov­ern­ment dead­lock, and his party took ex­actly half the seats in the Se­nate. Sub­se­quently, how­ever, the op­po­si­tion con­trolled a ma­jor­ity of Se­nate seats, and de­nied sup­ply on an ap­pro­pri­a­tions bill. The gov­ern­ment would shortly run out of money.

With the cri­sis un­re­solved, the gov­er­nor gen­eral, Sir John Kerr, dis­missed Whit­lam as Prime Min­is­ter. For Aus­tralians, it was their ver­sion of Canada’s King-Byng af­fair, with the dif­fer­ence that gov­ern­ment dead­lock and con­sti­tu­tional crises will arise more fre­quently in the di­vided gov­ern­ment of an Aus­tralia or Amer­ica.

Sadly, Aus­tralia’s founders lacked the be­nign anti-Amer­i­can­ism that would have re­sulted in a pref­er­ence for An­glo-Cana­dian over Amer­i­can in­sti­tu­tions. The Fathers of the Cana­dian con­sti­tu­tion sen­si­bly adopted a gov­ern­ment on the West­min­ster model, and it has served the coun­try ad­mirably. Of Amer­i­can-style dead­lock, they knew all too well.

The 1840 Act of union that cre­ated the united Canadas had re­sulted in grid­lock, as it be­came im­pos­si­ble to pass leg­is­la­tion with­out the sup­port from both sec­tions of the united Canadas. John C. Cal­houn’s the­ory of “con­cur­rent ma­jori­ties,” re­jected in the united States, was adopted in Canada to pro­tect French Cana­dian in­sti­tu­tions. A “dou­ble ma­jor­ity” from both Canada East and West was taken to be nec­es­sary to pass leg­is­la­tion, so that a ma­jor­ity in one sec­tion could al­ways block a ma­jor­ity in the other sec­tion. Im­por­tant leg­is­la­tion was thereby held up, in­clud­ing an 1861 mili­tia bill pro­posed to re­spond to the threat of an Amer­i­can in­va­sion.

To the great an­noy­ance of Bri­tain, which had sent 14,000 men to de­fend Canada from the threat of an Amer­i­can in­va­sion, the Cana­di­ans could not agree to do what was nec­es­sary to de­fend them­selves. This, thought the An­glo-Cana­dian in­tel­lec­tual gold­wyn Smith, was the real mo­tive be­hind the de­sire for a new con­sti­tu­tion. “Who­ever may lay claim to the parent­age of Con­fed­er­a­tion … its real par­ent was dead­lock.”

Cana­di­ans had seen enough of grid­lock in the from of the dou­ble ma­jor­ity doc­trine af­ter the Act of 1840, and in the bat­tles be­tween Lieu­tenant gov­er­nors and elected Assem­blies prior to re­spon­si­ble gov­ern­ment, and they didn’t want any part of it. A Cana­dian prime min­is­ter would be de­pen­dent upon the sup­port of the House of Com­mons, and might be re­placed at any mo­ment were he to lose it: Power shifted quickly and de­ci­sively. By con­trast, said John A. Mac­don­ald, grid­lock was built into the Amer­i­can Con­sti­tu­tion.

There would be a Cana­dian up­per house. But un­like the Amer­i­can Se­nate, the Cana­dian Se­nate would have few pow­ers. Its mem­bers were ap­pointed by the fed­eral gov­ern­ment, and while they might de­lay leg­is­la­tion, they had fi­nally to yield to a de­ter­mined House of Com­mons, as the House of Lords did af­ter the great re­form Bill. Had sen­a­tors been pop­u­larly elected, it would have been oth­er­wise, which is pre­cisely why Mac­don­ald wanted an ap­pointed body.

There is no fear of a dead­lock be­tween the two houses un­der the cur­rent sys­tem. But as an elected body, the Se­nate might claim as much le­git­i­macy as the House of Com­mons, and block im­por­tant leg­is­la­tion, just as the Aus­tralian Se­nate has.

We can’t get rid of the Se­nate, nor would we want to do so. In quiet com­mit­tees, re­moved from pub­lic gaze and the pas­sions of the day, the sen­a­tors per­form a use­ful role, sub­ject­ing leg­is­la­tion to care­ful scru­tiny. With greater ex­pe­ri­ence than his col­leagues in the House of Com­mons, a Se­na­tor can take a longer view and see un­in­tended and un­ex­pected con­se­quences. And the cost is triv­ial. The build­ing is al­ready up, and can’t be rented out. The salaries are peanuts, not­with­stand­ing the faux-out­rage of me­dia elites.

The first prin­ci­ple of con­ser­va­tive gov­ern­ment is that, when it’s not nec­es­sary to act, it’s nec­es­sary not to act. In its ap­par­ent ea­ger­ness for un­nec­es­sary (and fruit­less) Se­nate re­form, the Harper gov­ern­ment sadly shows its non-con­ser­va­tive roots in the re­form Party. For the gov­ern­ment, it’s also a con­ve­nient way to de­flect at­ten­tion from more se­ri­ous is­sues that di­vide its mem­bers, such as abor­tion.

Can we get back to the royal baby now?

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