Saturday, May 03, 2014

The Supreme Court Senate decision: Was it a blow to Harper?

I have noted that many commentators have somehow managed to construe the federal government's loss on Senate reform in the Supreme Court as simply a crafty way for our clever prime minister to dispose of a long unwanted campaign promise. For example here is Campbell Clark in the Globe and Mail:
The Supreme Court said no to the Prime Minister’s Senate-reform plans, and his democratic-reform minister has backtracked, under fire, on his elections bill. All is proceeding according to plan for Stephen Harper.
More accurately, these two events on Friday were not body blows to the Prime Minister. They were tactical manoeuvres executed without suffering political damage.
I read various other commentaries in this vein. One honourable exception was Andrew Coyne who said the following, which TC thinks is dead on:
After the wreck of the Harper government’s Senate reform ambitions, it was patiently explained in various media that this was not the debacle it seemed. Yes, eight years of legislative effort had come to a crashing halt, and yes, the whole thing was eminently foreseeable, and yes, the government was made to look awfully foolish, but if you glanced at it sideways and squinted a little you could see this was actually the best thing for Stephen Harper, a neat way of getting him off the hook for a promise he couldn’t possibly deliver and probably wasn’t all that interested in anyway and certainly he can’t have been surprised and maybe he’s even secretly delighted and possibly this was what he intended all along.
When it comes to Senate reform the analysis that Harper was just not that interested in Senate reform does not withstand scrutiny of the issue's history. The modern movement for Senate reform dates to the Triple E movement that came out of Alberta in the mid-1980s. Its most prominent proponent, Bert Brown, was appointed to the Senate in 2007 by Stephen Harper after an Alberta Senate "election" held in 2004.

Many pundits have referred to Senate reform as a commitment that came from the Reform Party. What is less well known is that the person Preston Manning entrusted with putting together the first Reform election platform in 1988 was none other than Stephen Harper. He made sure that Senate reform was a Reform platform priority. The famously controlling Mr. Harper also ensured that the promise made its way into the 2006 Conservative Party election platform.

And while the Harper government took its time to act on many issues they proceeded quickly on Senate reform, introducing Bill S-4, which would have limited the terms of Senators to eight years, on May 30, 2006, less than four months after taking office.

Harper demonstrated the personal importance he attached to Senate reform when he appeared before the Senate Special Committee on Senate Reform on September 7, 2006. He started off saying the following:
Good afternoon everyone. First, I want to thank the honourable senators, for this opportunity to speak today on the issue of Senate reform. I understand that, as you just said, this is the first time that a sitting Prime Minister has appeared before a Senate committee. This underlines my interest in Senate reform. As we have little time and our subject matter is important, I will stick to the essentials.
As everyone in this room knows, it has become a right of passage for aspiring leaders and prime ministers to promise Senate reform on their way to the top. The promises are usually made in Western Canada. These statements of intent are usually warmly received by party activists, editorial writers and ordinary people but, once elected, Senate reform quickly falls to the bottom of the government's agenda, nothing ever gets done and the status quo goes on....
Honourable senators, years of delay on Senate reform must come to an end, and it will. The Senate must change and we intend to make it happen. The government is not looking for another report — it is seeking action that responds to the commitments we made to Canadians during the recent federal election.
As you all know, we made a commitment during last election campaign that, if we were elected, we would proceed with a Senate reform. I came here today to reiterate personally my commitment to reform this institution.
Harper described his approach as 'step-by-step' but later made it clear he hoped it would lead to comprehensive constitutional reform:
I can just say that my frank hope is that that process would force the provinces and others to, at some point in the future, seriously address other questions of Senate reform. There are questions such as the distribution of seats and the powers that we are all clear must be addressed through a general amending formula, constitutional amendment. I welcome the day when there is a public appetite for that discussion because I think the country needs it at some point.
These are not the words of someone paying lip service to Senate reform. They are the words of a true believer. However, this all came early in the government's hopeful, idealistic phase.

He hoped that he could get legislation on limits on Senate terms and "consultative" elections through Parliament quickly. He then hoped that he could repeat the American experience where individual states beginning with Oregon held direct elections to select their senators. The original U.S. Constitution required state legislatures to elect Senators. The state initiatives eventually led to the 17th amendment of the U.S. Constitution, which requires all states to elect their senators.

So how did it unravel? While no doubt Harper kept his hopes alive for awhile, it was really the actions of Liberal Senator Serge Joyal that undermined the step-by-step strategy. Joyal was chair of the Senate Standing Committee on Legal and Constitutional Affairs. He managed to get Bill S-4 before his committee in the spring of 2007. This allowed him to hold hearings where various experts cast doubt on the legislation's constitutionality. In the end he persuaded the Liberal Senate majority to suspend consideration of the bill until it had been referred to the Supreme Court for an opinion on its constitutionality. This was likely when Harper learned that the road ahead would be more difficult then he initially thought. He persisted but he would not get that Senate majority until the end of 2010.

Less than two years later Quebec would be on its way (after many threats and much delay) to initiating its own Senate reference. Harper held off a federal reference until it was clear that the issue was going to make it to the Supreme Court regardless of his wishes.

No doubt it was somewhere between 2008 and 2012 he figured out that he was likely to fail to accomplish a reform he had had his heart set on since the eighties. Only then did he begin to distance himself from the project by slowing down the legislative pace of his reforms. However, his early devotion to the cause as Prime Minister is clear and on the public record, including being the first PM since 1867 to appear before a Senate committee. I saw none of this in the media coverage. There are times when the inside the Queensway pundit class seems guilty of gross negligence in not telling us the full context of key political developments. This is one of those occasions.

Historical Irony
The modern push for Senate reform started in Alberta in the 1980s (as a response to Pierre Trudeau's National Energy Plan) and with the judgment from the Supreme Court on April 25th it has effectively been brought to an end.

There is an irony here because just before the push for Senate reform got off the ground in 1983, Canada adopted a new constitutional amending formula as part of the Constitution Act, 1982. That amending formula originated in Alberta.

When the logjam was broken at the constitutional negotiations in Ottawa in 1981 the bargain effectively was Trudeau's Charter of Rights in exchange for the Alberta amending formula supported by the provincial coalition that was resisting Trudeau's initiative (Quebec was part of that coalition but its support was contingent on getting opting out with compensation, something dropped in the final negotiations). The English-speaking provinces that first pushed it forward including Alberta had as a principal concern that Quebec not have a veto in the amending formula. Alberta got what they wanted. Quebec does not have a special veto in the amending formula. However, the history of failed constitutional amendments post-1982 (the Aboriginal round, Meech, Charlottetown and now unilateral Senate reform) illustrates that one should be careful what one wishes for.

For Alberta during the 1980-81 constitutional negotiations nothing was more important than getting its preferred amending formula.  It is that formula in the context of our current politics that killed our Albertan Prime Minister's effort to alter the Canadian Senate's constitutional architecture.