A Sober Second Thought

Canadian Senate Chamber

In the wake of the Canadian election, I hear many people calling for electoral reform. They want a move from the “first-past-the-post” system to some form of proportional representation. Andrew Coyne is a leading proponent. Trudeau promised it at the previous election.

I am not enthusiastic. People seem to want it because it would be a more accurate reflection of voter intentions. I do not see this as the primary goal of our electoral system. The main benefit of an electoral democracy is that it provides an orderly transition of governments. Most other systems regularly dissolve into bloodshed and chaos at regular intervals for the transfer of power.

An election also serves as an objective check, so that the nation can get rid of an incompetent, corrupt, or oppressive government. And knowing they can be voted out of power at the next election gives those in charge a reason not to steal everything in sight: once out of power, they might be prosecuted.

But having a government that reflects the popular will as closely as possible is not an important goal—so long as it does so in broad terms, there are other considerations that argue against too much democracy. Our system understands this, and has been designed accordingly.

The people, for one thing, have no special expertise in making laws, in managing foreign relations, in making a prosperous economy, and so forth. They are entirely liable to make bad decisions.

Further, democracy is dangerous to any minority. The majority can and naturally will gang up on and plunder the minority. Notice that Hitler was democratically elected.

As a result, our system, and other modern democratic systems, have features that limit the power of the people. First, obviously enough, everyone does not vote on every issue. Instead, we elect representatives, presumably people with some expertise, to decide for us. Second, election by riding instead of by proportional representation ensures that geographical minorities cannot be so steamrolled. The federal structure serves the same purpose: as much as possible, matters are decided at a more local level.

Then there is, in Canada, the Senate, an unelected body supposedly of eminent citizens, to give our legislation “sober second thought.” Because they stay until retirement, they necessarily develop expertise, and are presumed not influenced by every political wind.

Then, since 1982, there is the Constitution, limiting what the elected government is allowed to do. The Supreme Court has recently been given the power to disallow laws on the grounds that they go against the constitution, no matter how popular they might be.

You can get into a lot of trouble by tinkering with your electoral system; the current Brexit crisis in the UK is due to some tinkering done by the Cameron and the Blair governments over the last few years: introducing referenda on major issues, taking the power to dissolve parliament away from the Crown, separating the prime ministership from the support of the house, giving the Supreme Court the right to overrule parliament. It’s a mess.

The Westminster system has been tested repeatedly and on the whole served well, for centuries, in several countries. Proportional representation systems have tended to end in either revolutionary upheaval or collapse. They are less flexible.

Elizabeth May inadvertently explains why. She complains about the Westminster system because it causes “policy lurch”: successive government tends to change the national direction. Exactly: this is its flexibility. In a crisis, the Westminster system can switch course quickly and fairly dramatically. A proportional representation system, by contrast, has a huge problem in changing direction. It muddles on, incoherent in its policies, even if the roof is on fire. Nothing can ever substantially be improved.

Under the Westminster system, for example, the UK was able to switch smartly into warrior mode in the Second World War, bringing in Churchill. Under the Westminster system, the UK was able to transform itself under Margaret Thatcher when its economy was no longer working.

All that said, I do see a useful place for proportional representation in Canada: in the Senate.

Right now, the Senate is a useless appendage. Its traditional role, of “sober second thought,” has been stripped away. Let’s restore its relevance by electing it by proportional representation.

Here’s my idea: when the Crown dissolves parliament, it dissolves both houses: the Commons and the Senate. The people vote only once, just as they do now; but this vote is used to elect both chambers. Members of the House of Commons are elected directly. But then the national popular vote is tallied, as it is now, and Senate seats are assigned to the parties based on their share of the popular vote.

Assume a Senate of 100 seats, if only for ease of illustration; the Senate is currently 105 seats. Given the popular vote this election, the Conservatives would have 34 Senate seats, the Liberals 33, the NDP 16, the BQ 8, the Greens 7, and the PPC 2. If we want to keep the 105 figure, maybe we could add in automatic seats for the last five living prime ministers.

Notice that the PPC, Greens, and NDP get more representation in this Chamber than they do in the Commons; the BQ gets less. The Commons is set up to protect geographical minorities. The Senate, under proportional representation, would protect political minorities, minority opinions or perhaps ethnic minorities that do not have the good fortune to have a geographical base.

But this new Senate could also do something protect geographical minorities. Currently, the Liberal government will have no seats in Alberta or Saskatchewan. It will have no members of cabinet from those provinces, no one in government to speak for that regions interests.

Give the political parties the right to appoint their Senate quota after the election, and each party can use this quota, or some of it, to correct such regional deficits. The Liberals can appoint some Senators from Alberta and Saskatchewan, who could then serve in Cabinet; the Conservatives or NDP can similarly compensate for their regional deficits. And parties can, if they wish, use their Senate allotment to balance their caucus in other ways: for sex, or ethnicity, or whatever they think important. How each party actually chooses their senators could be left up to them: appointment by party leader, by vote of their membership, by committee, or whatever.

Such a system would also allow us to keep figures like Lisa Raitt or Ralph Goodale or Maxime Bernier in public life if they lost their Commons seats. Politics would become less bloody; and more attractive to good people.

What would the Senate do? It could, in effect, be given back its old position of sober second thought. All bills would have to be initiated in the Commons. The Senate could only repeal, or refuse a new bill. To avoid the gridlock usual to proportional representation systems, I suggest this power of refusal, as opposed to repeal, be limited: a bill newly passed could only be rejected by the Senate on constitutional grounds. Properly, the federal government has the legal right to reject laws passed by the provinces; let’s give this power, too, to the Senate, on the same condition: that any rejection or repeal of a provincial law be on constitutional grounds.

This power could then be taken away from the Supreme Court. I think this is a great advantage: the Supreme Court has become activist, and this is profoundly undemocratic. It amounts to government passing into the hands of a small unelected professional elite.

I propose that the Supreme Court could no longer rule on the constitutionality of any law until and unless it had first been ruled unconstitutional by the Senate. The Supreme Court could then overturn this decision in case it was too political, and not really defensible on constitutional grounds.

But note that any law could be repealed by the Senate on any grounds, whether or not it was constitutional, once it had been in force for a given period—say five years. This gives the Senate a role in keeping the government from becoming too large and too intrusive.

One nice feature of this particular electoral reform is that it would cost nothing. Any other imaginable switch to proportional representation is likely to cost a lot. It also keeps the system of casting and counting votes exactly as it is now, minimizing the risk of introducing new problems.

Because they are not reliant for their continuing political careers on pleasing one specific subgroup of Canadians—those in their riding—such a Senate might also become a force for national unity.