The Ways of Change

I wrote last week about Bill C-559, the “Reform Act,” which if enacted would transfer some power from party leaders to MPs and caucuses in the House of Commons. Yesterday, I addressed the question whether the changes it would operate would be good for our democracy, and concluded that this is very doubtful. In this post, I want to consider the separate question whether, if I am wrong and the changes proposed by the supporters of Bill C-559 ought to be implemented, this implementation should be done through legislation. The way in which Bill C-559 would operate is to make the incorporation of the procedures it mandates into the internal rules (such constitutions and by-laws) of political parties a pre-condition of their registration with Elections Canada, which, in turn is required for a party to obtain important benefits (including the ability of its candidates to use its name on election ballots). In addition,  Bill C-559 explicitly says that it provisions would “prevail[] to the extent of the conflict or inconsistency” over those of the parties’ constitutions or by-laws (clauses 11 and 12).

This is quite unusual. As an interesting, eminently readable, and very timely paper by Gaeme D. Orr makes clear, political parties are subject to little (specific) regulation, except insofar as their financing is concerned, in the legal systems of the countries that have inherited the Westminster parliamentary model, including Canada. Parties have always been regarded as free to make their own internal rules. They can have the internal structure they wanted, their preferred way of choosing a leader, etc. The supporters of Bill C-559 like to say that it is not revolutionary, because the rules it would put in place exist in other Commonwealth jurisdictions. That may be so, but C-559 is revolutionary all the same, not because of its substance, but because it would be an unprecedented intrusion in the choices of previously autonomous organizations.

What warrants this intrusion? It is not the inability of political parties to implement the policies of C-559 on their own. Parties can now, if they so wish, give their caucus the right to boot out their leader. They can, if they so wish, give the caucus a say on the expulsion of caucus members. They could even implement rules practices that would deny the leader the ability to refuse to sign a candidate’s nomination papers, making the legal requirement that the leader do so a formality akin to the royal assent to legislation.

The supporters of Bill C-559 might believe that, although having the legal and practical ability to act, political parties are nevertheless prevented from doing so by a collective action problem. Perhaps a party which implemented the changes proposed by the bill unilaterally, without the others doing so, would suffer as a result, so that none has an incentive to act on its own even though they all would be better off if they acted together. I do not believe I have actually seen any such argument, though of course I might have missed something. But I am not sure how much force it would have. Perhaps there is a collective action problem of this sort with respect to candidate selection, insofar as giving a leader veto power over nominations allows a party to present a more unified team, and thus look better in the eyes of the media, which is all too eager to treat internal disagreement as a sign of a leader’s weakness and a party’s disorganization. A party which unilaterally curtails its leader’s power to cut questionable candidates loose might become vulnerable to criticism ― but it could also posture as more open and democratic than its rivals, so I am not sure where the cost/benefit calculus ends up. And certainly there is no collective action problem preventing parties from experimenting with rules on choosing and removing leaders ― there has, in fact, been considerable innovation in this area recently.

The real problem is not that political parties are somehow unable to act. It is that they do not want to. They choose to empower their leaders in ways which the supporters of Bill C-559 do not like. The question, then, is whether some over-riding consideration justifies over-riding their free choices. The answer, of course, will depend on just great the benefits one expects the implementation of C-559 to yield would be, which are the subject of much discussion. But it must also depend on the costs of this interference with the parties’ choices ― and I have the impression that these costs are not discussed at all. Yet there is always a cost in interfering with people’s choices; there is also, more specifically, a cost to telling party members ― people whose participation in the political system should, one might think, be saluted and respected ― that the choices which they make do not deserve to be respected. Bill C-559 does this generally, by over-riding party rules, and more particularly too, by making it possible for MPs to override the party members’ (or supporters’) choice of leader.

To me these costs seem pretty significant. Given that even many of those who support Bill C-559 seem uncertain about its benefits, I do not think that legislation interfering with the internal rules of political parties is the best way to change Canadian politics. Bill C-559 has the merit of having forced upon us a conversation that is well-worth having. But parties should be free to make their own responses to this conversation. And we can, then, judge them by these responses.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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