In his latest column, appearing in the Ottawa Citizen, Calgary Herald and other Postmedia papers, Mr. Crowley writes that "every serious federation in the world has an upper chamber, but I have not seen anyone in the current debate explain why that is and why it matters." Mr. Crowley says recent scandals are unacceptable and the Senate does its job of regional representation poorly, but this makes the case for reform, not abolishing the institution.
Brian Lee Crowley, Ottawa Citizen, August 2, 2013
If abolishing the Senate is the answer, we are asking the wrong question.
Yes, the current shenanigans of a few senators are unacceptable and worthy of censure. Yes, the way people get to be senators is outdated, unacceptable and prevents the upper house from playing its proper constitutional role. But abolition would also prevent that crucial role from being played and its disappearance would be a grievous blow to our constitutional order.
Every serious federation in the world has an upper chamber, but I have not seen anyone in the current debate explain why that is and why it matters.
Democratic federations seek to balance two kinds of representation: individuals and communities. The lower house (in our case the Commons) represents individuals and hence is universally based on representation by population. Legislation cannot pass parliament unless it has the consent of MPs representing a majority of Canadians.
But Canada, like all federations, is also composed of constitutionally-recognized communities, in our case, the provinces. For national decision-making to be legitimate in a federation, the virtually universal rule is that you need something more than the assent of the majority of individuals; you also need the assent of some important share of the communities that make up the country. The interests of the people who inhabit the provinces or states cannot be fully represented by rep by pop alone.
Why? Just think about Canada: for a long time Ontario and Quebec have had enough inhabitants that they could impose their will on the rest of the country if they so wished. Ditto in the U.S. for a handful of big states. That is the vital role played by upper chambers: they confer greater democratic legitimacy on national decisions by ensuring that a double majority is needed, one majority of individuals in the lower house, a majority of communities in the upper house.
Because rep by pop is the bedrock principle of democracy, the lower house is always the more powerful of the two. But in a federation it is also important that regionally concentrated majorities cannot run roughshod over the interests of smaller communities. Upper houses play that role. Coalitions of small communities cannot rule over the majority of the population, because law-making also requires the agreement of the lower house. But in federations, agreement of the majority is not enough to achieve democratic legitimacy.
Perfect equality of provincial representation is not required, but the unavoidable goal is to give smaller communities some counterweight to a population's political power, ensuring that their interests are also taken into account. Thus Quebec and Ontario, despite having two thirds of the population, have fewer than half the seats in our Senate.
One of Canada's great political and constitutional weaknesses has been the inability of the Canadian Senate to play this vital role of providing a credible community counterweight to the rep by pop-based power of the Commons. Appointed senators simply can never have the democratic horsepower to be a real counterweight to the Commons. The federal government's legislation therefore lacks the legitimacy of the double-majority system that other federations have found so indispensable, and this is at the root of many of the problems of regional alienation and suspicion of the national government that has plagued this country since 1867.
Saskatchewan's Brad Wall, arguably the best premier in the country, thinks that the way around this is to abolish the Senate and rely on the premiers to represent community interests in national decisions. No federation in the world has found this a satisfactory solution, for a variety of reasons. The most important is that premiers are elected to run their provinces. That is not the same thing as being chosen to be a national legislator, someone whose constitutional job it is to represent a provincial constituency while thinking about what is good for Canada.
There is a reason why governors are minor political players in Washington, while senators are second only to presidents. American states are well-represented within federal decision-making by senators who, while always attentive to the views of their constituents, understand they are there to be national policy-makers. We have only to look at the laughable efforts of our premiers to act as national decision-makers (think about removing internal barriers to trade, or cross-province collaboration on energy) to see that they are slaves to their parochial interests.
That is not a criticism; it's their job. But it is also why their job cannot be to confer that vital missing element of regionally-representative legitimacy the federal government lacks and needs. Abolishing the Senate would get rid of the institution that should be playing that role, no matter how badly its current version falls short. It would diminish the federal government and empower provincial parochialism. Reform may be hard, but it is the only way. Canada deserves the effort.
Brian Lee Crowley (twitter.com/brianleecrowley) is the Managing Director of the Macdonald-Laurier Institute, an independent non-partisan public policy think tank in Ottawa: www.macdonaldlaurier.ca.