Where to Stand

I wrote last week about Bill C-559, the proposed “Reform Act” that would, if enacted by Parliament, shift some power from party leaders to parliamentary caucuses and maybe individual MPs. It would do so by making it impossible for a leader to deny a candidate chosen by a local party association the ability to run for the party at an election, by making expulsions from (and re-admissions to) a party caucus subject to the caucus’ members’ secret vote, and giving a caucus the ability to dismiss a party leader, also in a secret vote, which can be instigated by 15% of its members. These changes, I wrote, raise two sorts of questions. First, would our political system be better if they were implemented? And, second, is legislation the right way to implement such changes? In this post, I will address the first of these questions.

I need to emphasize, however, that my thinking here is quite tentative, and that I do not claim any particular expertise in political matters. Nonetheless, legislation that affects the workings of Parliament is obviously a matter if constitutional significance, in a substantive sense at least, and thus of interest to me. Another important caveat is that, in reality, nobody seems to have a clear idea of what the effects of Bill C-559’s coming into force would be. Both supporters and opponents of the bill seem to be suggesting that these effects would be at once very limited (and hence the bill is either innocuous or useless) and far-reaching (and hence it is either very important or very dangerous). I think that, as a matter of precaution, we should assess the bill on the assumption that it will have a real impact ― but that is only an assumption, not even an educated guess.

Bill C-559 is described and defended as a means to give powers to MPs, at the expense of party leaders. However, it is important to make a distinction, between the powers of individual MPs and those of MPs as members of party caucuses. Of the three changes reforms of Bill C-559, only that which would make local party associations rather than party leaders responsible for endorsing party candidates will really make individual MPs more independent. Preventing a leader from unilaterally expelling an MP from caucus will do nothing for a real gadfly who breaks with the party line and thereby angers not only the leader, but also his or her caucus colleagues (who, in any case, even with C-559, would remain under a considerable influence from the leadership). As Dan Arnold notes in an op-ed in the National Post, it is scandal or rejection by colleagues, not “excessive” independence from leadership that tend to bring about MPs’ expulsions.

What is more, the independence from the leadership which C-559 would grant an MP would have a flip side: dependence on the local party association. I am not sure that an MP so dependent would be in a better position than one beholden to the party leadership to exercise independent will and judgment. Perhaps ― but I would like the supporters of this change address this issue, which I have not seen done so far. A further problem, raised by Alison Loat in an op-ed in the Globe, is that, at present, riding associations often lack the transparency and organization necessary for them to handle even their current responsibilities, never mind the increased ones that Bill C-559 would grant them. In its present form, the bill would at best do little more than shift power from one set of actors of dubious legitimacy to another.

Legitimacy is also key to assessing the proposal of giving caucuses the power to remove party leaders. The supporters of Bill C-559 argue that this power already exists as a matter of “convention.” And as a practical matter, it would probably be most difficult for a leader who lost the support of his or her caucus to cling on to leadership. However, it remains the cases that ― unlike in other Commonwealth jurisdictions to which the supporters of C-559 compare its proposals ― the ultimate source of a party leader’s legitimacy in Canada is the support not of his or her caucus, but of a much larger constituency. At the very least, it is a fairly broad set of delegates at a leadership convention; but, increasingly, it is all the members of a party (if the party uses a one-member-one-vote system for leadership contests), or an even larger number of people (for the Liberal Party, which opened its most recent leadership contest to non-member “supporters”). It is at least conceivable that a leader would lose the support of the caucus while retaining the support of the party as a whole; perhaps more realistically, a party may elect a new leader who does not enjoy the support of the caucus (Stéphane Dion may have been in that situation in 2006, though I am not sure). In such cases, how would it be legitimate for the members of the caucus to dismiss the leader and, in effect, impose their views to the party members? Bill C-559 acknowledges something like this concern by providing that, upon dismissing a leader, the caucus only has the power to appoint an interim replacement, not a permanent one. But, given the practices of Canadian political parties, even giving a caucus veto power over the members’ choice (which is what C-559 amounts to) seems a decrease, rather than an increase, in democracy.

More generally, one must ask whether Bill C-559 makes sense in light of the reality of politics in the 21st century. Democracy today does not look the same as it did in the days of James Madison or Edmund Burke, or even those of John Diefenbaker. In other Commonwealth jurisdictions, which the supporters of C-559 cite as models, and even in continental Europe, where political parties are much more regulated than in the Commonwealth, the role of legislators and legislatures has been changing. As Bernard Manin’s excellent book on The Principles of Representative Government explains, politics throughout the Western world are more leader-centric than they used to be, largely because of the leaders’ ability to use the media to connect with the electorate, and because the the complexity and challenges of today’s world favour executive decision-making. Standing athwart history and yelling ‘stop’ might be noble and even necessary, but one needs to be intelligent in picking the place where to make one’s stand.

It seems to me that Bill C-559 does not make the best choice. As Dan Arnold points out,

all that is being transferred are punitive powers – the opportunity to boot a leader, or a caucus member. This act would do nothing to give them a greater say in passing laws or having their opinions heard.

If one really wants to challenge the seemingly inexorable course of the centralization of political power in the hands of party leaders and their coteries of spin-masters, one should find ways to actually involve legislators in debate and legislation. Having more free, or at least freer, votes, as Colin Horgan suggests, would be a good start. The difficulty with this approach is that it is probably not amenable to legislation. But, of course, it is not clear that legislation is an appropriate tool to implement even the changes that Bill C-559 would make.

To Be Something

Speaking of our lawmakers, Pierre Trudeau (in)famously remarked that “when they are 50 yards from Parliament Hill, they are no longer honourable members, they are just nobodies.” Not that the honourable members fared any better on Parliament Hill ― over there they were, as he apparently also said, just “trained seals,” performing whatever tricks their party leadership wanted them to perform. Things have not changed ― certainly not in the direction of MPs becoming human beings ― since Trudeau’s times. But they will now, if one of them, the Conservative Michael Chong has his way, and Bill C-559, grandly entitled the Reform Act, which he introduced this week, is enacted.

Although its name appeals to a long tradition of legislation making the British parliamentary system more democratic, expanding the franchise from a small fraction of men to, eventually, the entire adult population, Mr. Chong’s bill would, of course, do nothing of the sort. It would, rather, shift (some) power from party leaders to MPs ― for those political parties, that is, which have any. At present, as Lori Turnbull explains in an op-ed supporting the bill,

[p]arty leaders have many tools at their disposal through which to maintain this discipline within their caucuses … Leaders decide on cabinet positions when the party holds government and shadow cabinet posts when the party sits in opposition. If a leader were really ticked off, she could refuse to sign an MP’s nomination papers when the next election comes around, thereby preventing the MP from reoffering [sic; perhaps re-offending?]. It’s a simple carrot and stick approach: leaders can reward those who are loyal and punish those who are not.

Bill C-559 would limit the leaders’ power over their MPs, and give the MPs a countervailing power over their leaders. More specifically, it would do three things. First, it would give local party organizations control over candidate nominations, removing a party leader’s ability to reject a candidate by refusing to sign onto his or her nomination. Second, it would prevent a leader from expelling an MP from his party’s caucus. An expulsion (or a readmission ― though not, perhaps interestingly, the admission of a floor-crossing member) could only take place upon the written request of 15% of the members of the caucus, approved by a majority vote on a secret ballot. And third, a written request by 15% of the members of a caucus would trigger a “leadership review”; if a majority of the members of the caucus voted against their leader on a secret ballot, the leader would be dismissed, and the caucus would elect an interim leader, pending the election of a new permanent one by the party.

Supporters of Bill C-559 might be tempted to paraphrase the Abbé Siyès: “What are ordinary MPs? Everything. What have they been hitherto in the political order? Nothing. What do they desire to be? Something.” However, before we agree that this desire ought to be gratified, we must ask two questions. One is whether the changes proposed by Bill C-559 are, substantively, a good idea. In other words, would our democracy be better if party leaders could not prevent the nomination of a candidate or expel a member of their party’s caucus, and/or if they could be removed by a vote of their caucus? The other question is whether, even if these changes would be for the better, legislation is the right way to implement them. Why not, rather, leave the parties themselves to make changes which could be implemented through their own internal rules? I will address these questions in separate posts.

Not Private Parties

The development and use of massive voter databases and sophisticated “micro-targeting” techniques by political parties are raising concerns about the privacy rights of the people targeted by these efforts. When I wrote about the use of these techniques by the Obama campaign in the last presidential election in the United States, I suggested that “the future is creepy.” I am not the only one to think about this stuff, of course. The CBC had a story about the use of databases by Canadian parties, not only to identify and turn out their own supporters, but also to discourage opponents’ supporters from voting, though it did not specifically discuss privacy issues. Radio-Canada’s internet blogger, Vincent Grou, raises them in a recent post, and points to a report on the topic prepared last year for the Office of the Privacy Commissioner of Canada by Colin J. Bennett and Robin M. Bayley.

The main takeaway from this report is that, although parties now collect and use large amounts of information about voters, members, donors, activists, and candidates, they are not subject to the existing privacy legislation in Canada, which typically only applies to governments and to commercial enterprises, except for British Columbia’s Personal Information Protection Act, S.B.C. 2003 c. 63. (Readers with good memories may remember me saying the contrary in the post linked to above. I was wrong. Mea culpa.) This is troubling, because parties do not respect the rules that other organizations are subject to, and put Canadians’ personal information at risk. At the same time, parties are very important in the Canadian democratic process, in particular in organizing and promoting political participation. Thus, “in general terms, the debate centers on the balance between the two values of  personal privacy and political participation” (3).

There report also notes a number of background factors which this debate must take into account. One is the continuing decline of the importance of parties for mobilizing the electorate, and loss of public trust in parties. In this context, the report argues, one party’s sins of commission (such as an abuse of information on voters) or omission (such as a failure to protect information) might prove very harmful for the democratic system as a whole. A second is that the technologies which parties use directly (their databases and data-mining software) or indirectly (for example social networks on which they can gather information) are developing very quickly, and thus the parties’ behaviour is difficult to regulate in ways that will make sense not only at present, but also in the future. Yet another point to keep in mind is that in many ways, the new data-mining and micro-targeting methods are developments of existing practices rather than completely new phenomena. Parties have long made efforts to identify their likely voters ― but the new technologies allow them to take these programmes to a much higher level.

Another interesting part of the report is its survey of practices in other democratic countries. They vary widely. In continental Europe, parties are subject to privacy regulations, and micro-targeting is apparently not developed. By contrast, in the United States, privacy rules are much less extensive and do not apply to political parties (which indeed are shielded from much regulation by the constitutional protection of freedom of speech).

Although prof. Bennett and Mr. Bailey do not say so in the report’s conclusion, they seem to favour at least some form of regulation of the political parties’ behaviour with respect to privacy. They acknowledge the difficulty of striking the right balance between what they consider to be the parties’ special role in our democracy and the citizens’ privacy concerns. But they are unimpressed with the parties’ purported attempts at self-regulation in this respect ― their privacy policies, when they exist at all, are hard to find, vague, or incomplete. And they worry not only about the privacy interests of citizens but also about the risks for the political system as a whole if one or more parties fail, or are regarded as having failed, to protect the privacy of the millions of people about whom they collect information.

This is all very interesting and worth thinking about. But I would like to suggest a few other factors to add to our reflection.

One is the possibility, which I raised in my previous post, that constitutional law has something to say on the subject of the permissibility of regulating the gathering and use of data by political parties. As I noted then, the Supreme Court is now considering a case in which a union argues that its constitutionally protected activities should be exempt from the application of provincial privacy legislation. The activities of political parties too enjoy some constitutional protection, the Supreme Court having recognized their special role in the electoral process. Depending on the outcome of that case, political parties might be able to challenge any extension of the privacy legislation to cover their activities.

In this connection, another point to keep in mind is the difference between rules that limit the parties ability to gather information about voters and those that would attempt to make them better custodians of the information they collect, for example by requiring better security measures or training for the party workers and volunteers who handle personal information. The former sort of regulations, I should think, would be more problematic than the latter.

Another concern when thinking about possible regulation is the congruence of the proposed rules with the expectations and practices of the people being burdened, and those purportedly being protected, by the regulation ― here, respectively, the parties and the citizens. On the side of the parties, it is worth noting that Canadian political parties are actively trying to learn from their American counterparts. They are thus taking on board the practices and expectations of what might be the world’s least regulated environment from a privacy standpoint. The more they do so, the more difficult and intrusive forcing them to change their ways is going to be. As for the citizens, the report notes that Canadians say they are very concerned about their privacy. But deeds do not necessarily match words, and it is not clear that regulations should protect people in accordance with their stated wishes when they themselves seem not to act on them.

A final point I will make here is that we might want to question one of the report’s important assumptions ― the special role of political parties. I have written a good deal about why should be skeptical of campaign spending rules that favour political parties (here, here, and here). As the report notes, parties are losing the importance they once had ― but that is not necessarily a bad thing. It is not so obvious that they ought to benefit from special rules with respect to privacy, though I am not saying that they ought not to ― it’s a difficult question.

As it stands, Canadian political parties are not very respectful of our privacy. Whether to try to make them more so, and how, are difficult questions. They are bound to become more pressing as the parties’ gathering and use of data on voters continues and increases, and we would do well to start thinking about them now.