A Bad Fit

I blogged about Michael Chong’s proposed “Reform Act” back when it was first tabled as Bill C-559, criticizing both the substance of the changes it sought to introduce into the Canadian democracy, and the choice of legislation as the vehicle for effecting these changes. The bill (now C-586) has been much amended, and passed by the House of Commons recently. It now heads to the Senate. The original C-559 would, among other things, have forced federal political parties to give their caucuses the power to expel members (taking it away from the party leader) and to dismiss the leader him- or herself upon a secret vote of more than 50% of the caucus members. C-586, as it now stands, requires the caucus of each recognized party in the House of Commons to choose, after each general election, whether to grant itself these powers.

This change does not really address my criticisms of the original project’s substance. Among other things, I didn’t like the fact that, by allowing causes to remove the party leader, the Reform Act would in effect allow them to veto the choice of a different, and much broader, constituency ― whether the delegates at a leadership convention, or a party’s entire membership, or even its members and “supporters.” To me, this seemed, and still “seems a decrease, rather than an increase, in democracy.” At a minimum, this shows that the Reform Act is not a well-thought out intervention in our political arrangements. It changes some elements of the system without touching other, directly related ones. From their diametrically opposed perspectives, two op-eds published by the National Post this week confirm this.

One is by John Pepall, who argues that the Reform Act will fail to address the problem of the concentration of power in the hands of party leaders, because

[t]he authority the leaders exercise comes from their having been elected by the party — that is, the extra-parliamentary party, rather than the caucus — by virtue of which they are invested with indefinite power for an indefinite term.

As Mr. Pepall notes,

[t]he idea that parties should choose their leaders has become so entrenched in our political culture that Chong didn’t dare propose that MPs choose their leader.

The other op-ed is by the Liberal MP (and former leader who might know a thing or two about occupying that position without much support from his caucus), Stéphane Dion. Mr. Dion was one of only 17 MPs who voted against C-586, and has taken to the Post’s op-ed page to explain his vote. He notes that, unlike in the countries from which Mr. Chong found his inspiration, “in Canadian democracy, it is a longstanding tradition that the leader is elected by the party membership,” whose will would thus be undermined by a vote of the caucus. He adds that a caucus can be “regionally unbalanced,” presumably making it even less representative of the party membership.

Messrs. Pepall and Dion thus point to the disconnect between the “entrenched” “tradition” of party membership choosing its leader, and the Reform Act giving caucuses the ability to grant themselves the power to kick out the leaders. However, they draw radically different conclusions from their observations. Mr. Pepall is hoping for a “Super Chong” who would have the courage to go against the tradition and “get people to understand what needs to be done to make party leaders MPs’ leaders instead of their parties’ chosen commanders.” In other words, go further in the direction of other commonwealth countries where the caucuses not only fire, but also choose their parties’ leaders. Mr. Dion, by contrast, wants the party memberships to remain in control.  “[I]n a sound democracy,” he writes, “MPs need to secure approval of their respective party memberships before giving themselves such a power [to fire their leaders].”

My own sympathies lie with Mr. Dion. There is something perverse in wanting to improve our democracy by severing the link between party leadership and membership. However much contempt Mr. Pepall can have for what he describes as

a mish-mash of political enthusiasts who enjoy working in elections, long-time loyalists who dutifully serve from election to election, birds of passage swept in by an issue or a fetching new leader and instant members bussed in for a nomination or leadership contest and never seen again,

they are a broader and more representative constituency than a few dozen, or even a couple hundred, members of a caucus (which can indeed be unbalanced in any number of ways, as Mr. Dion points out). Party memberships are declining, as Mr. Pepall points out, but some parties are responding by opening leadership selection to non-members as well. Even those that are not seem to be moving towards one-member-one-vote arrangements, which give more people a direct say in the choice of a leader than the delegated conventions of yore.

Be that as it may, it remains the case that the Reform Act is a bad fit with the Canadian political system. It’s not that that system is particularly good. There is indeed a good case to be made for the proposition that it is broken. But if that is so, then fiddling with one particular element of it, while ignoring the way in which that element interacts with others can hardly be the solution.

Intelligent Life on Parliament Hill

In an interesting recent blog post, Brent Rathgeber, an independent MP, discusses the Supreme Court’s decision in Canada (Attorney General) v. Bedford, 2013 SCC 72, and Parliament’s eventual response to it. Mr. Rathgeber’s post deserves attention for a number of reasons. Beyond its immediate subject, which is of course interesting in itself, it is relevant to the debate about the role of MPs that has been rekindled by the proposed “Reform Act” (my posts on the topic are here). In addition, Mr. Rathgeber has an interesting, albeit in my view unpersuasive, theory of the proper role of courts and of judicial review, which I will address in a separate post.

Mr. Rathgeber agrees with the Supreme Court’s decision, writing that

Sadly, there is no shortage of evidence to support [the] proposition [that these three Criminal Code Prohibitions made practising a legal trade unsafe and that is in violation to the Canadian Charter’s protection of security of the person].  Serial killer Robert Picton and Edmonton’s Project KARE’s Task Force on nearly a dozen murdered or missing women from “at risk” lifestyles are only a couple of the examples of how streetwalking is a dangerous, sometimes lethal, vocation.

As for what Parliament should do now, he notes that the government, which in his view is “[n]ot the least bit interested in harm reduction,” will be tempted by the “Nordic model” of criminalizing the purchase (though not the sale) of sex. In his view, however, doing so would be a mistake. Most importantly, as the Bedford respondents say, this approach still drives prostitution underground and thus makes it dangerous in much the same way the Supreme Court found to be unconstitutional. For another,

the liberty of purchasers also attracts Charter protection; if one could be jailed for purchasing sex, the Nordic Model becomes constitutionally suspect. I am searching for a product that is legal to sell in Canada but illegal to purchase.  I cannot come up with an example.

Better to rely on “the approach Canada takes with respect to other morally challenging products such as tobacco, alcohol, and even exotic dancing”: licensing, regulation, and prohibition only where those involved are there as a result of coercion or are minors. This “approach is imperfect in all instances, but is likely preferable to an attempt to  prohibit prostitution or unregulated anarchy.”

We can agree or disagree, of course. But what is certain is that this is a well thought-out position. Furthermore, Mr. Rathgeber is the rare politician who acknowledges that the politicians’ ability to shape the world is not unlimited. But of course his ability to think and, especially, to speak, so freely is a consequence of his being an independent MP, not beholden to ― and also, therefore, unable to influence ― any party. Were he still a member of the Conservative caucus, it is more than doubtful that he would have been able to express the same views in the same public way.

Which is a shame.  Mr. Rathgeber is, one hopes, not the only thoughtful MP; one hopes that he was not the only one among his former party colleagues. It would surely be better if the intelligent and thinking MPs were able to speak their minds and deliberate about legislation which Parliament enacts. And it is important that such deliberation happen not only behind the closed doors of a party caucus, but also in public. 

Conservative MP Michael Chong’s  Bill C-559, the “Reform Act,” intended to increase the independence of individual members of Parliament from their resepctive parties’ leaders, might seem like a way to make this more likely. But there seems to be little reason to believe that it would have allowed Mr. Rathgeber to express himself publicly while remaining a member of the Conservative caucus. Bill C-559 would make an MP’s caucus membership subject to the will of his or her riding association, which would need to approve his nomination as the party’s candidate, and caucus colleagues, who would have the power to expel him or her, taking these powers away from party leadership. But party instances (whether leadership or riding association) did not force  Mr. Rathgeber to leave the Conservative caucus. He chose to leave, citing his “comfort level in caucus,” policy disagreements, and the fact that the legislative process is subject to control by “unelected staffers” within an “opaque” Prime Minister’s Office. With Bill C-559, a conflict with caucus colleagues could lead to an MP’s expulsion ― indeed, the will of a party leader who, for whatever reason, chose to tolerate an unpopular gadfly MP might be overridden. And Bill C-559 does nothing to address the MPs’ lack of control of, or even involvement in, the legislative process.

Mr. Rathgeber’s story certainly suggests that something is rotten in our Parliament ― but also that the “Reform Act” would not stop this rot. It would be better, it seems to me, to try to take advantage of the intelligence and intellectual curiosity which, though it often seems otherwise, still exist on Parliament Hill, by involving members in the legislative process ― which, after all, is what their job description calls for. No legislation is necessary to make this happen ― only a change of attitude of party leaders who would let their colleagues be more than cogs in an electoral machine, and arguably also of the media who would not make any attempt at thinking out loud and deliberation as an opportunity for creating “gotcha” scandals and questioning the strength of a party leader. The trouble is that minds are much harder to change than laws.

Damn Your Party?

In my post last week assessing the merits of Bill C-559 (a.k.a. the “Reform Act“), I pointed out that it risked creating or embittering conflicts between the caucuses and members of political parties. In particular, I wrote that

[i]t 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 … 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 [and potentially supporters]? 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.

In a recent op-ed in the Globe, Doug Saunders notes this potential conflict too ― but on his reading of the political situation, it party members rather than MPs who are the potential bad guys, and the MPs the saviours of democracy who need more power and freedom. Mr. Saunders worries about “dues-paying members of [the] politicians’ parties, gathered in a fluorescent-lit hotel ballroom and predetermining the identities and actions of those supposed representatives,” “the most mysterious and unregulated force in politics.” The members, he claims, have too much power; so much that party leaders choose to act in their interests rather than in those of the country. Parties run on a set of widely discussed policies, but they also have obscure manifestos that only their members care about. Political leaders must have the courage to ditch these partisan commitments  in the name of the general good, but subjecting them to the membership’s control makes that less likely. Perhaps this was tolerable back when party membership was widespread, but it is no more: “somewhere between 1 and 2 per cent of Canadians are members of political parties,” which is as well, because this means that “[p]eople would rather vote for influence than buy it with a membership card.”  Mr. Saunders concludes that “[m]embers no longer matter, and we need to update the system to reduce their influence.” He recommends “[e]liminating the influence of riding committees over MP selection … empowering MPs to select the prime minister [and] making the caucus, not the convention, the policy seat,” as well as, most of all, having leaders “go against their own parties.”

This agenda, of course, is more, not less, elitist than the status quo, or at least it aspires to be so. Yet it seems rather divorced from reality. I wonder whether the members of Canadian political parties would recognize themselves in the picture that Mr. Saunders paints. For most members, the “sinister” influence they wield on Canadian politics is limited to voting for a leadership candidate once every five or ten years. The policy resolutions they occasionally adopt are routinely ignored by party leadership. It takes no courage, contrary to what Mr. Saunders asserts, to do that ― only habit. Whether or not it is a good thing, there is no problem in Canada with party leaders kowtowing to their members ― and this is the truer the closer a party is to power. Do party members “buy influence with a membership card”? Well, maybe, but they get about what they pay for ― a membership costs next to nothing, something like 5 or 10$ a year, and it yields next to nothing too.

If Mr. Saunders’ recommendations were adopted, the members of political parties would have no substantive role at all ― they would select neither their local candidates nor their leaders nor their parties’ policies. It is not clear, indeed, why anyone would become a member in such a system. Parties would be reduced to MPs and their surrounding political operatives, reinforcing the disconnect between the political class and the electorate it is supposed to represent. Mr. Saunders presumably thinks this would be no great loss.

I am not so sure. Of course, party members are not fully representative of the broader electorate. But they are more so than the MPs, staffers, and PR people gravitating around the MPs in Ottawa. A leadership election is the one moment when a would-be Prime Minister leader is forced to engage in retail politics and talk, at a fairly close distance, to lots of different people without many filters. He or she has to meet ordinary party members and ask them for their votes, in person, face-to-face even ― rather from a television screen. Mr. Saunders is right that leadership sometimes demands going against the wishes of one’s party, just it sometimes demands going against the wishes or preferences of the electorate, but leadership does not mean simply ignoring these wishes as if they did not exist. A leader must be able to engage with those who disagree with him or her; maybe to persuade some of them, and at least to let the others know that they have been heard. Arguably, the lack of these qualities is a problem for a number of political leaders in Canada now. Mr. Saunders’ proposals would make this problem worse, not better.

“Damn your principles,” demanded Benjamin Disraeli, “stick to your party.” Mr. Saunders would have politicians do the other way, sacrificing party to principle. This certainly sounds more high-minded, but in reality, we probably need both parties and principles. A single-minded devotion to anything runs the danger of fanaticism ― and fanatics of principle are no better than the partisan kind.

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.

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.