Wednesday, January 29, 2014

Trudeau’s Senate play a bold stroke. But what’s next?

I think everyone was surprised by Liberal leader Justin Trudeau’s move this morning – particularly 32 Senators – that he was removing all Senators from the Liberal parliamentary caucus, and that as Prime Minister, he would only appoint Senators selected through a non-partisan review process.

Let me break down my reaction into two areas: the politics, and the policy.

The Politics

Politically, this is a brilliant move. For a leader who has been unfairly accused of lacking policy substance, here is bold, substantive action. For an issue – Senate reform – that has seen years of empty chatter from all parties, and from the supposedly reform-championing Conservatives, just a Supreme Court reference well into the third Harper government, this is the first real, meaningful action on Senate reform we’ve seen. This isn’t a promise of change – this is change – and it’s change Canadians can understand.

Let me address some of the critiques the opposition have raised.

Is this a “smokescreen” to deflect from wrongdoing a future Auditor General report may reveal? No one has seen the report, but the law of numbers suggest some Liberal senators will probably be named, so maybe. However, you don’t punt 32 senators from your caucus and promise no more partisan appointments as a mere damage control measure – that’d be crazy. Such a move has to come from a place of firm belief. Besides, we’ll all remember they were Liberals, I’m sure.

Why did Trudeau vote against the NDP opposition day motion that called for a non-partisan Senate, and then do this? Isn’t that a flip-flop? Actually, not at all. The NDP motion was unconstitutional. The House of Commons can’t make party leaders boot people from caucus any more than it can make me grow a mustache. The NDP motion was unenforceable and unconstitutional flim-flamery masquerading as meaningful action, and was rightly defeated. But that doesn’t mean it’s unconstitutional for me to *choose* to grow a mustache. The Commons can’t make Trudeau act; but he can, and has, chosen to act, and act decisively.

They’re calling themselves Independent Liberal Senators? Doesn’t this prove this is meaningless? Hardly, and in fact, the opposite. They’re independent. They can call themselves whatever they want. I’m sure Trudeau, for narrative’s sake, would rather they call themselves the Definitely Not Liberal Anymore Senators. But he can’t tell them what to call themselves – they’re independent, they get to pick. And most of these people have been committed Liberals for decades. They joined the party because they believe in certain ideals. Their beliefs haven’t changed because they’re not Liberal Senators anymore. But now they’re free to vote and act as they wish. Sometimes that may be similar to what Liberal MPs do; sometimes it may not. As for the name, Lillian Dyck once called herself an Independent NDP Senator. The NDP leadership didn’t like it, but there was nothing they could do about it. Also, was it meaningless when Harper booted Mike Duffy, Pamela Wallin and Patrick Brazeu from the Conservative caucus?

They’re still Liberal Party of Canada members, aren’t they? Ha ha! I would assume so, yes. Should Trudeau kick them out? On what basis would he do that? I don’t believe the party constitution gives him that authority. And even if it did (I think it rests with the party executive), there would need to be a reason, specific wrongdoing. Should we prohibit Senators from joining political parties? I don’t think so. Last I checked, we had a right to freedom of association in Canada. The Charter may mention something along those lines. If a Senator wants to take out a membership card, they should have the same right to do so as a civil servant, or any other Canadian.

With this move, Trudeau has seized this day on Senate, positioned himself as a leader who takes action, and exposed the other parties as all talk when it comes to Senate reform.

The Policy

In the short term, I’m on board. Let the Senate be independent, and in the absence of constitutional reform, let’s appoint better, non-partisan people through an independent, non-partisan review and appointments process. Paul Martin and Harper have already shown the Supreme Court appointments process can be reformed for the better within the existing constitutional framework.

Longer-term though, we simply have to open up the constitution to deal with the Senate, and I’m more aligned toward abolition today than I was yesterday.

My position on Senate reform has been clear for years: redistribute seats along equal regional lines, rebalance powers to give the Senate purpose and avoid gridlock with the Commons, and elect Senators so they’re accountable to the electorate for their decisions. My vision of Senate reform requires constitutional reform, something no parties have been willing to seriously consider to date. I think we should – it needn’t be scary at all.

Now, an elected Senate would probably require a party system. The Liberals have committed to the opposite. And if it’s not going to be elected, the other reforms I’d like to see don’t make sense. They only work as a package. So I’m left with abolition, or the tweaked status quo.

The status quo works for the interim, but it's not a long-term solution to Senate reform. If the long-term choice is a Senate providing sober second thought to Commons legislation -- on a partisan basis or not -- or abolition, I’d say abolish it.

The more I think about it, the more I agree it is about partisanship. But not (just) partisanship in the Senate – partisanship in the House of Commons. We wouldn’t need sober second thought if MPs were providing sober first thought, but the choking yoke of party discipline has made that impossible. With more independence for MPs within the party system – freedom to amend legislation, free votes requiring compromise to bring MPs onside, even within parties -- the Commons could get it right the first time.

If MPs were free to do their intended jobs – scrutinize and consider government legislation – we wouldn’t need the Senate for sober second though. I’d still argue for a reformed, regionally-balanced Senate to balance off the rep by pop will of the house, but not if they’re un-elected.

So that’s why I ask, what’s next? The Liberals have seized the day today.  I wonder, though, about the Senate’s tomorrow.

Recommend this Post on Progressive Bloggers


Jason Cherniak said...

Judges aren't allowed to join political parties. Perhaps Senators should be similarly above politics?

Jeff said...

I don't know. I don't think it's necessary, but I'd be open to a debate. Assuming it would require constitutional change though, I'd rather we just abolish (or fully reform) the damned thing while we're in there.

Vancouverois said...

I agree that some of your criticisms of the criticisms are valid. But...

"However, you don’t punt 32 senators from your caucus and promise no more partisan appointments as a mere damage control measure – that’d be crazy. Such a move has to come from a place of firm belief." No, it can also come from a place of poor judgement.

According to the Liberal party constitution, any Senator who is a Liberal party member is a member of the Caucus. It seems to me that JT's action does not strip away their right to be delegates at Liberal conventions, for example. Did he consider the party constitution at all when he decided on this course of action? What does it say about him if he didn't?

The Liberal Senators have already stated very clearly that they are still Liberals, and will have a caucus - from which recalcitrant members can still be expelled. And the Speaker has ruled that's valid. So what's really changed?

It seems that JT made this decision without even consulting the Senators who would be directly affected by this - without consulting anyone outside his innermost circle. How does that fit with his supposed commitment to openness and transparency?

Jeff said...

If I'd heard the constitutional argument before I'd written the post, I've had included that one too. Essentially, it's based on a less than fullsome read of our entirely too long 80+ page constitution.

The section being quoted on Twitter needs to be read in context with this a few sections later, at 59.3:

“The Caucus is not subject to the jurisdiction of any convention or general meeting of the Party, the Council of Presidents, the National Board of Directors or the Permanent Appeal Committee.”

Which basically means the Parliamentary caucus governs itself, and the party wing can't tell it what to do. So Section 57, which says...

“In this Constitution, the “Caucus” means those members of the Party who are members of the House of Commons or the Senate of Canada.”

... it is purely definitional for terms of the constitution -- when we say caucus, we mean the parlaimentary caucus with the MPs and Senators, as opposed to some other caucus. It's not seeking to define who can and cannot be in the Parliamentary caucus -- as 59.3 says, it lacks the authority to do so.

I will grant the language should probably be cleaned up, but the leader has always been able to kick people, be they an MP or a Senator, from caucus.

As for their current status, as I said they can call themselves whatever they want. How they govern themselves is also their business.

As for the decision-making process, sometimes leaders need to lead and take action. He certainly did here.

Vancouverois said...

I understand and agree that the Liberal Senators can skip the MPs caucus meeting and have their own weekly caucus meeting instead.

However, for the purposes of the Liberal party constitution, they still have the right to be automatic delegates to any convention, to vote for the interim leader, and so on. Mr Trudeau does not have the right to strip them of those perogatives without a constitutional amendment; he can only ask them not to exercise these rights. If a Senator refuses, what can he do?

As far as leadership is concerned, sometimes a leader does need to take bold action. But not for its own sake.

What was the pressing reason here? There was no immediate crisis - unless the suggestions that he was afraid of the upcoming AG report are true. If they are, this move may ultimately look worse than if he'd waited for the results, and expelled Senators whose finances were questionable.

It seems to me that the most charitable interpretation of this hurry is that JT wanted to do something dramatic to get attention. He's succeeded as far as that goes; but at what long-term cost?

And why not consult with the Senators themselves? Does he think they would have advised against it? If not, why the secrecy? And if so, why did he go ahead and do it anyway?

It isn't enough for a leader to take action for its own sake. He or she has to take the *correct* action, and when it's needed.

To me, this is looking more and more botched. Time will tell, but I'm not at all sure this risk will pay of as JT evidently hoped it would.