Writing in the Ottawa Citizen and Calgary Herald, MLI managing director Brian Lee Crowley takes issue with the notion that the Senate would be fine if we could somehow refine the appointments process to ensure only great senators are appointed. “The reality is that no matter how senators are chosen, be it appointment, election or lottery, the resulting body will be composed of fallible human beings”, writes Crowley.
Brian Lee Crowley, Nov. 8, 2013
The current expenses and ethics scandal buffeting the Senate and prime minister’s office has inspired all manner of “solutions” for Canada’s upper chamber, from abolition to reform, depending on the predilections of the author.
One idea in particular, however, is in vogue right now and it is worth taking a moment to see why this popularity is quite undeserved. This is the notion of continuing with an appointed Senate, but one where a better and non-partisan appointment process would result in a higher calibre of senator.
This approach appeals particularly to people who are rightly completely disgusted by both the behaviour of some of the senators currently in the news and by the behaviour of political parties more generally. There is a palpable yearning in the land for a body of virtuous Platonic guardians, above the political fray, interested only in the good of the country. There is much discussion of arm’s length appointment processes, like those for Supreme Court judges and governors general, that would “get the politics out” of who makes it into the red chamber.
But as James Madison, one of the American founding fathers, once wisely remarked: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” A Senate of disinterested angels is thus perhaps a delightful fantasy, but a fantasy nonetheless.
The reality is that no matter how senators are chosen, be it appointment, election or lottery, the resulting body will be composed of fallible human beings. If, therefore, we were to follow Madison’s sound advice we would focus on crafting an institution that does not assume senators are improbably virtuous.
Instead it would aim to reduce the scope for bad behaviour while ensuring the transparency and democratic accountability that help keep people honest and focused on the good of the country, rather than their individual advantage.
Indeed while everyone’s attention has been focused recently on the bad behaviour of a small minority of senators, the fact is that the Senate has been graced over the years with many members of the highest ethical, moral and intellectual achievements including distinguished scientists, surgeons, athletes, public servants and business leaders.
Yes, there has been dross as well, but I think it is fair to say that the large majority of senators are distinguished people who take their job seriously, behave honourably and try to do the best they can for the country.
An improved appointments process is, therefore, only likely to change the composition of the Senate on the margins. A few more good people and a few less scoundrels won’t overcome the serious flaws that disfigure the institution today.
An improved appointments process would not overcome, for example, the absence of a democratic mandate for senators, who would still find themselves plunged into a legislative backwater. How could a chamber of appointed individuals, no matter how illustrious and distinguished, hope to resist successfully the will of the Commons based on the popular mandate? Any attempt to do so would quickly give rise to charges of a nascent and unaccountable aristocracy running roughshod over the popular will. And why would the best and the brightest respond to the call to serve the nation in the Senate unless they were to be given the power and authority to do the job?
We must not forget, moreover, that unless the Supreme Court of Canada gives an unexpected ruling on the federal government’s reference on Senate reform, new appointees will continue to be named until age 75 and will never have to account to anyone for their use of the power granted them under the Constitution.
I, at any rate, have concluded that there is no appointment process that could rescue the Senate from its current disgrace and impotence. We are a modern 21st century democracy. Political institutions draw their power and authority from democratic mandates and parties are an indispensable instrument of democracy. A non-partisan appointed Senate, no matter how angelic its members, could never hope to be anything but an impotent anachronism. Appointing higher calibre individuals is a non-solution to the Senate’s shortcomings.
Creating an accountable democratically-elected institution with appropriate checks and balances ensures that when fallible people are given power, the chances of their abusing it are much reduced. That is the best we can hope for in a reformed Senate and it would be an achievement not to be belittled.