The ever brilliant and ever productive Jeremy Waldron has posted three new papers on SSRN this week: one on “The Principle of Loyal Opposition,” one on separation of powers, and one on bicameralism. They all look very interesting, and also very relevant to the current Canadian events. I hope to blog on all of them, but I will start with the one on bicameralism, which of course is most relevant given the Harper government’s interest in Senate Reform.
I encourage you to have a look at the paper itself; I cannot hope to do justice to it in a blog post. In addition to being very intelligent, it is also quite funny. I won’t retell the jokes here, but suffice it to say that it starts off “with some observations about alcohol and sex.” Still, if that’s not incentive enough, here’s a summary of Waldron’s argument.
Waldron defends bicameralism against arguments by Bentham (and to some extent, Bagehot) to the effect that a second chamber of a legislature must be “mischievous or superfluous,” and that provided we could make the first chamber of the legislature perfectly representative, and effective, there is no need for a second. Waldron claims that “there is no such thing as perfect representation of the people.” Indeed, he adds, he suspects that “there is no such thing as the people. There is just a large array of individual persons, millions of them, related to one another in various ways, with various interests, desires, and views. And there are innumerable ways of mapping onto that array another array, namely, the five or six hundred seats that there are in a given legislative assembly.” The idea of having one perfectly representative chamber, dispensing with the need for a second one, is an illusion. A second chamber enriches the legislature by adding a different mode of representing citizens.
In addition, or apart from that, a second chamber provides a second opportunity to debate proposed legislation, which is good both epistemically and also because it reduces the sense of absolute power of the legislators. Epistemic benefits can result not just from additional debate, but also, as Waldron points out in a later part of the essay, from a certain separation of functions between the chambers (one proposing, the other disposing, or something like that). As for the the disciplining effect of bicameralism, legislators will behave differently if they know that an independent power might oppose their self-interested, power-grabbing, or even plain stupid decisions. (Lord Acton’s dictum comes to mind, although Waldron does not quote it.) However, bicameralism will only have these benefits if the two chambers are genuinely independent of each other. This they will not be if the same people (which, in a Westminster system, means the cabinet and the Prime Minister) can control both. In order to do any good, a second chamber in a Westminster legislature must stand in “a different relation to the executive” than the House of Commons which the Prime Minister controls.
The trouble is that party politics makes this exceedingly difficult. If a majority of both Chambers belongs to the same political party, that party’s leadership in the Cabinet will be able to control both. Waldron makes only one suggestion on how to avoid this result: to institute a rule requiring that cabinet ministers only come from the House of Commons. If members of the second chamber know in advance that they are not eligible for Cabinet membership, they cannot be cajoled or bullied as effectively as members of the House of Commons whose constant preoccupation if to reach or to remain on the front bench.
Waldron recognizes that reform creating an effective, independent Upper House is a remote prospect. Why would a government set up a genuine counterweight to its own power? Still, we can hope (or Waldron can, anyway). What might a good Waldronian second chamber look like? It would not be appointed, like the Canadian Senate. (Early on in the essay he speaks of “the creaky and decrepit appointments-based system for the Senate of Canada.”) Always the optimistic democrat, Waldron is hopeful that voters can be induced, if the second chamber is appropriately designed (with well-defined oversight and deliberation functions, long office terms, etc.) to choose their representatives there on a different basis than those in the House of Commons; that they can vote, not for the best potential government, but for the best potential overseer of legislation.
I thought I would add my own two cents, both as to the merits of Waldron’s argument in the abstract and as to its relevance to the Canadian conversation, but this post is too long already. I will conclude for now, and try to have my own thoughts tomorrow.