The Supreme Court of Canada did not kill the possibility of meaningful Senate reform with its recent ruling on term limits, elections and abolition. Don't let anyone tell you that it did.
1. Independence of the Senate: Release all Senators from their National Caucuses
One key thing that electing Senators would do would be to increase their independence from their party caucus and their leaders in the House of Commons. There is a lot of upside to that, in particular, that they could better fulfill their role of balancing the power of the executive (read Cabinet or more particularly, the Prime Minister), which is an explicit reason why the Senate was created.
There is also a lot of downside to electing Senators. Elected Senators would be much more inclined, and in fact obligated, to exercise their complete veto over House of Commons legislation, including budget bills, that unelected Senators are not. They could hamstring Parliament, particularly since there is no way in our constitution to break an impasse between the two Chambers. Regional imbalances would also be exacerbated for provinces like Alberta, which has a greater percentage of the seats in the House of Commons than it does in the Senate.
The good news that remains after the Supreme Court ruling is that greater independence for Senators can still be achieved in large measure without electing them. Mr. Trudeau has already demonstrated this with his decision on January 29, 2014 (Independence Day for Liberal Senators) to remove Liberal Senators from the National Liberal Caucus. This has already had a definable impact on the Liberal Senators. They have started holding caucus meetings open to the public; they have instituted a program of asking the government side in the Senate questions submitted by members of the public; and they are no longer "whipped" for votes. And, they do not ever hear arguments from the Liberal Leader or elected MPs that they should be voting one way or another.
Moreover, they have this independence without the downside of electing them before the problems of resolving impasses between the Chambers and seat distribution can be rectified; a situation which would require a constitutional amendment that it seems impossible to achieve and that no one wants to undertake.
The irony is that Mr. Harper, who wanted to give the Senators the ultimate means of gaining independence, electing them, seems not to want to release Conservative Senators from his national caucus. But it would be easy to do and it would be an effective way of reforming the Senate. If that were really his intention, then he would jump now to release his Senators from his caucus.
2. Selection Process
The effectiveness of the Senate and the reduction of suggestion of its being too partisan can be achieved by the kind of independent selection process envisioned by Mr. Trudeau. This is the kind of system that has served Canada very well in the selection of judges. A group of distinguished Canadians could be easily selected to review applicants/nominees for the Senate and propose a list of those who qualify to the Prime Minister for selection.
3. Televise the Senate
The Senate is the only legislative Chamber in the country that is not televised. Its committee proceedings are, but not the actual Chamber debates. This would allow Canadians to see the Senate Chamber in action and would elevate their appreciation of the Senate and the Parliamentary process generally, when they would see what is a remarkable level of respectful debate in the Senate. It is also consistent with the government's continuous claims that it wants to increase the transparency of the Senate. What better way than to televise it and let Canadians actually see what it does?
4. Arrange the Seating in the Senate Chamber by Province and Region
Currently, seating is arranged by party affiliation. So, the Conservatives sit with Conservatives, Liberals with Liberals and independents with independents. While it might seem cosmetic, seating Senators by province would engender relationships and discussion that would inevitably change perspectives and diminish the presence of partisanship. What Senators hold in common would get more emphasis than the partisan divide that is now entrenched by the partisan seating model. If you need proof of this, consider how effectively the committees function in the Senate, where Senators work very closely and almost always produce consensus reports.
5. Electing the Leadership
The Senate Liberal Caucus has begun electing its three critical leadership positions, Leader, Deputy Leader and Whip (no longer whipping votes but still having certain management functions that need to be fulfilled, like allocating Senators to committee membership) since Mr. Trudeau has forfeited that role along with removing Senators from his caucus. So, why does Mr. Harper not do the same thing? There is no need for him to continue to appoint these positions in his Senate caucus unless he really continues to want to control it. And, of course, the one thing he would have done with electing would have been to reduce his control of his Senators. So, why not do what he can to give them their independence?
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