A Tale of Two Scandals

Partisanship is undermining political accountability and constitutional checks and balances

This post is co-written with Mark Mancini

Here some harsh—yet entirely justified—words about unconstitutional actions of the executive branch of government:

[N]ot only were there no clear means of constitutional restraint, there was obvious intent to accomplish the scheme well outside the public eye. The scheme was blocked by the unlikely combination of whistleblowing and informal political pressure. Even worse, a defiant [executive] refuses to admit to any wrongdoing at all—even calling the key piece of evidence … a “perfect” call. It was essentially our good fortune (through the courage of the whistleblower) that the [voters] have access to partial information about the scandal so they can factor it into their electoral calculus. What’s the constitutional check for misconduct of that kind? Citizens can’t run to court to block this particular abuse of … power. We can’t even count on public knowledge for public accountability. The [executive] is still actively holding back material evidence. (Paragraph break omitted)

And here’s a trick question: what scandal is being described here? Is it Donald Trump’s attempt to use aid granted by Congress to suborn a Ukrainian announcement of an investigation into a political rival? Or is it Justin Trudeau’s attempt to have a prosecution of a corrupt engineering company stopped from going to trial to avoid financial difficulties for that company―and political embarrassment in Québec? The answer is, technically, that it’s former. The quotation is from the January 22 instalment of “French Press”, the thoughtful newsletter written by David French for The Dispatch. (While we’re at it, may we recommend Advisory Opinions, an equally thoughtful podcast Mr. French co-hosts with Sarah Isgur?) But, by our lights, Mr. French might as well have been writing about l’Affaire SNC Lavalin.

There too the effective head of the executive branch and his political henchmen sought to pervert the course of the execution of the law in their partisan interest. There too, they were discomfited by the unlikely decision of an official to blow the whistle instead of doing their bidding, and the resulting political pressure. There too, this political pressure was enough to arrest the illicit scheme itself, but not to bring about any real acknowledgement of wrongdoing; on the contrary, the master of the executive branch made a great show of having acted in the public interest. There too only partial information was allowed to filter out into the public domain through the medium of legislative hearings, and claims of executive privilege were raised to prevent key witnesses from speaking, or at least speaking fully. There too the courts would have been of no avail in any attempt to get to the bottom of what happened. The similarities between the two scandals are striking.

There are also some meaningful differences, to be sure. For one thing, the person who stood of in the way of the Trudeau government’s scheme to save SNC Lavalin was none other than the Attorney-General. No such high-ranking official has stood up to the Trump administration’s plans. For another, some heads have rolled as a consequence of l’Affaire SNC Lavalin: those of the Prime Minister’s principal secretary (albeit that he made a comeback only months later) and of the head of the civil service. Whether even such imperfect accountability is visited on the Trump administration is, at present, very doubtful. Another difference: obstructive as they have been, the members of Mr. Trudeau’s party in Parliament didn’t stonewall the investigation into his government’s misbehaviour to anything like the same degree as the members of Mr. Trump’s in Congress.

Still, this would be thin gruel for customary Canadian self-congratulation. In response to arguments to the effect that, since the executive’s shady plans were not allowed to come to pass, our constitutional system is working more or less as it should, we expressed here the

worry is that our constitutional set-up fails to adequately establish this connection; that it does not guarantee that ambition will counteract instead of abetting ambition; and it relies too much on human character being, if not angelic, then unusually virtuous.

Our constitutional system, we suggested, lacks the checks and balances that would ensure, or at least make it sufficiently likely, that a lawless executive could not get away with it. In particular, we were skeptical about the ability of the rules and conventions surrounding the accountability of the executive to Parliament to do this work.

Although we did not say much about this in that post, an important reason for this is partisanship, particularly the strong form of party discipline that characterizes the Canadian system. A majority party lines up behind the government formed by its leader, and has every incentive to close ranks, even at the cost of public-serving accountability. This is the inherent flaw of responsible government, which means that the ministry must have the support of a parliamentary majority (or at least an unchallenged plurality). In theory, this subordinates the executive to Parliament. In practice, the power dynamic is more often than not precisely the opposite. Of course, the obverse of this flaw is the executive’s ability to govern effectively and to implement its legislative agenda. All constitutional arrangements come with trade-offs. The question is not whether we can avoid trade-offs altogether, but whether we have made the right ones.

What is disheartening is that in the United States, whose constitutional framers made different trade-offs from ours, and where a different ― and seemingly more robust ― set of checks and balances was put in place to contain the executive, the same problem seems to have nullified those checks and balances. Mr. French writes that “[w]hen presidents work in secret to substitute their personal priorities for the public good … impeachment is the difference between punishment and permission when a president abuses his power while conducting affairs of state”. Yet if the president’s partisan allies refuse to even recognize the legitimacy of this procedure, they make him (or eventually her) just as unaccountable as a Canadian Prime Minister able to command a Parliamentary majority.   

This is not necessarily to disparage anything and everything about political partisanship. A case can be made for the proposition that Mr. Trump’s election to the presidency is the consequence of weak parties as much as of strong partisanship. But it should be clear by now that adjusting our constitutional systems to strong, and perhaps hypertrophied, partisanship is a challenge that a variety of democratic polities must face, and quickly. Our political scandals sound similar because our constitutional weaknesses are.

Author: Leonid Sirota

Law nerd. I teach public law and legal philosophy 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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