Conservative Senator Linda Frum has decided to take on the topic of the current batch of Senate reforms, and I can’t even. And yet, I must. So here we go. Her two main points are about the institution’s lack of accountability and lack of legitimacy, and while she notes all of the changes with the former, she is way off base with the latter – but more on that in a moment. Much of the problem with Frum’s whole thesis is that it ignores historical context and perspective. With the lack of accountability, she correctly laments that the Duffy incident highlighted poor financial controls, but this is not unique to the Senate – most elected legislatures also lacked adequate controls until very recently, hence we had the moat cleaning imbroglio in the UK, or the Nova Scotia MLAs who bought flat screen TVs and generators as office expenses, or federal MPs improperly claiming their own housing allowances just a few years ago. It’s a process and the Senate was actually ahead of the curve of the Commons for much of the last number of years. And good for her for denouncing the “everybody does it” excuse. But her analysis of the Senate’s legitimacy issue is, frankly, jejune. The Senate does not need to derive its legitimacy from popular elections because it comes from the constitution and from Responsible Government – as with all Governor-in-Council appointments, the Prime Minister is empowered to make them so long as he or she maintains the confidence of the Commons, and he or she is accountable for making them. That is where the Senate’s legitimacy is drawn from, and people who insist otherwise tend to be more enamoured with Americana rather than the actual function of our own Senate – a body geared toward more deliberation than as a competing legislative body. Popular election would make the Senate just that – a competing chamber more inclined to gridlock if it is controlled by an opposing party to the government in the Commons, and otherwise full of 105 backbenchers for the Commons parties to boss around, seeing the great expense and organisation that would go along with Senate elections (even more than MP elections given that senators represent a whole province and not a small riding). Leaving aside Frum’s conspiracy theory that all of the new independent appointments are just closet Liberals (and I will give her the point that Peter Harder’s insistence on styling himself an independent is deeply problematic), Frum is boggled by the notion that a body that is not a confidence chamber can operate without defined government and opposition sides, and that Senators could weigh legislation on its merits rather than on the basis of the whip. In fact, Frum goes so far as to posit this baffling gem:
So long as we senators are not elected, our democratic legitimacy depends on government-appointed Senators following the leadership of a government that is elected – and that government, in turn, must honestly acknowledge its responsibility for the actions of the senators it appoints.
I barely even know where to start with this, other than to say “Nope. Nope, nope, nope. So much nope.” You see, the Senate has institutional independence under the constitution. The whole point of the Senate is that it’s supposed to push back against a prime minister when that prime minister tries to ram through dubious legislation through a majority Commons that they control. If said PM also has senators under their thumb, then it kind of defeats the purpose of it, no? And no, as I explained in my column this week, the PM doesn’t have the responsibility to police the Senate because of that institutional independence. And I get that Frum is doing yeoman’s work in trying to defend her partisan affiliations, which are totally legitimate. I too don’t think that a Senate full of independents is the best thing for our system, but that doesn’t mean that a greater presence of independent senators – enough to ensure the balance of power is no longer weighed in the favour of any one party – is illegitimate or unconstitutional. Frum is wrong on that point, and it needs to be said.