Why Maher is wrong on Senate Reform

A recent column by Postmedia’s Stephen Maher argues that recent scandals involving senators might spur forward attempts to reform the Upper Chamber. Unfortunately, the arguments he makes rather miss the point.

Maher acknowledges that the Senate does good and important work, and that their committee work in particular is often better than the work of the House of Commons’ committees. He then goes on to say that this doesn’t change the fact that the Senate is an anachronism, unrepresentative and lacks legitimacy “to fulfill their proper functions, as a check on the government of the day” because they are appointed.

The Senate and senators do not lack legitimacy because they are appointed – their legitimacy stems from the Constitution. Judges are also appointed and act as checks on the government of the day, and no one questions their legitimacy. One might prefer that senators (and perhaps even judges) be elected, but that won’t make them more legitimate. It is the Constitution that establishes the legitimacy of the Upper House.

Maher points out that there are no NDP or Bloc Quebecois senators, and therefore that isn’t democratic. True – but that reality is largely because both the NDP and BQ would like to see the Senate abolished and have no interest in having senators appointed from their ranks. Because they oppose the very existence of the Senate, one would have to ask if they’d even bother running candidates if we ever moved to an elected Senate. If the NDP opted to not run candidates in Senate elections because it would rather see the Upper House abolished, wouldn’t that make an elected Senate equally undemocratic?

Maher then writes:

Electing senators to a single nine-year term — as the government has proposed — would give them democratic legitimacy and some degree of independence from the party machine.

I have written previously about my objections to limiting senators (and in the UK, Lords) to serving a single term in office if elected. This may perhaps make them more “legitimate” in the eyes of some, but it certainly does not make them more accountable, which is a big part of democratic legitimacy. It is one thing to elect someone to office, but without the possibility of judging how that person performed by having the opportunity to either re-elect them or kick them out, how is that any better than having them appointed? I think Maher confuses the concepts of “accountability” and “legitimacy” – as I’ve stated at the outset, the Senate’s legitimacy stems from the Constitution. Electing senators doesn’t make them more legitimate. It could, however, make them more accountable – but only if they are allowed to seek re-election. Limiting them to a single term in office fails on that front.

I also don’t understand how Maher can think that elected senators would somehow be more independent of the party machine. They would be running as representatives of a given political party. They, like MPs, would depend on the party for their nomination. They would be, if anything, more beholden to toeing the party line.

Maher then suggests that:

And the prospect of elections might prevent embarrassments, in part because only professional politicians would get elected.

Conservative Patrick Brazeau, who called a reporter a bitch on Twitter, would never get elected.

Neither would Liberal Rod Zimmer, and his odd marriage would have remained a private matter.

Again, these arguments are somewhat baffling. Is Maher suggesting that no embarrassing MP has ever been elected? I certainly can think of a few. And do we really need more professional politicians? Maher suggests that Senator Brazeau would never get elected – I think there are very good chances that Senator Brazeau would indeed do quite well at the polls. He’s young, attractive, and the party could always stick him in a very safe riding, which would guarantee his election. Maher then uses the example of Senator Zimmer and his much younger wife, suggesting that voters would never elect a man married to a much younger woman. My reply to that is: Pierre Elliot Trudeau.

All of the problems Maher mentions could be eliminated simply by changing how senators are appointed. The logical solution is simply to remove the power to appoint senators from the hands of the Prime Minister and turn that over to an independent Selection Commission. Criteria could be drawn up as to what background and characteristics senators should have. Anyone could submit names of persons they would like to nominate as a potential senator. This would have the added benefit of ensuring that people from specific professional backgrounds which are currently under-represented in the House of Commons – such as experts in certain fields such as finance, all things digital, medicine, etc., were appointed.

A Senate filled with persons appointed by an independent commission would also avoid the other problem Maher identifies – that of the regional imbalance. Maher is right to note that this would be far more problematic if we moved to electing Senators. He is also right to point out that it would be virtually impossible to get the Constitutional change necessary to remedy that imbalance. In short, we are pretty much stuck with that regional representation, which only strengthens the argument for the creation of an independent selection committee to deal with appointments to the Senate.

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    Re: the Senate’s legitimacy (or lack of it), if you’re saying that the Senate is legally entitled to fulfill its constitutional functions, then I can’t see how anyone could disagree. But as I understand it, when people like Maher say the unelected Senate lacks legitimacy they mean that Canadians generally don’t accept that an unelected Senate should have the powers and privileges the constitution confers on it. Your reply that the Senate has legitimacy because the constitution has legitimacy seems circular, because to say that the Senate lacks legitimacy is simply to say that the features of the constitution concerned with the Senate lack legitimacy.

    I take Maher to be saying that he wants a bigger role for the Senate, but if the appointed Senate were to step into this role by routinely using the full extent of its constitutional power, most people would probably demand hasty changes to limit its power. In other words, it lacks the legitimacy to fulfill what Maher believes to be its proper functions. Unfortunately, he doesn’t go into any detail about what these might be (beyond the extremely vague: “check the government of the day” and “representing the regions”), something that IMO really has to be set out before any productive debate about elections vs. appointments can take place.