(This may or may not turn out to be a regular series, depending on how long the current infatuation with Senate ponderings lasts.)
So Canadians are talking about reforming or even (gasp!) abolishing the Senate. Abolishing the Senate is constitutionally difficult, but analytically pretty simple: we wouldn’t have a Senate anymore, and the House of Commons and Crown would constitute the Canadian Parliament.
With either abolition or reform, we have to ask what the effects would be, and whether the means would serve the intended ends.
So in that spirit (and because I just read an interesting paper about it) let’s all agree that as bad as having the Prime Minister appoint Senators is, having the provinces appoint them would be worse.
“What the eff?” you say. “Who’s even advocating that?” Well, nobody important that I can see at the moment. (Though parts of this Tom Flanagan piece could be read that way.) But this was a common argument by provinces in the 1970s, and god knows bad ideas never really go away.
And it’s a bad idea not because I don’t like it, but because it fails to achieve its stated goal: increasing sub-national control over the national government. In fact, history shows it does the opposite.
Before 1913, the US Senate was appointed by state legislatures. This was explicitly intended to give the states control over the President, and not incidentally the Supreme Court. Then, after decades of campaigning, in just 11 months the Congress and two-thirds of the states passed the 17th amendment to require directly elected Senators.
A new paper from David Schleicher of George Mason University explains why states voted to disempower themselves. Schleicher argues that the role of national political parties in the US made the Framers’ conception of federalism unworkable, and in fact put state politics at the mercy of national politics–the exact opposite of what the founders intended.
Why? It’s pretty simple: state elections became “nationalized”, with voters expected to elect state representatives based on which party’s senators they would send to Washington. This had already begun before the Civil War, but by the 1870s through the 1900s it became more and more intense. Schleicher cites an 1894 editorial in the Chicago Tribune which explicitly argued that it was wrong for the state’s voters to make their decision based on state issues–national politics was what mattered:
Do these Democratic State Senators think the voters can be called off from the national issues involved in the direct election of Representatives and the indirect election of a Senator to consider only local questions. That they will drop the Wilson bill and devote their attention to the establishment of a Police Board in Chicago? That they will lose their interest in the currency — in the silver question and the taxation of State bank notes–and become wrapped up in the question whether the Chicago park boards shall be elective or appointed?
The 13th amendment, then, was a way of restoring the spirit of the federalist constitution by abandoning the letter.
The same issue faces other appointed upper houses. The German Bundesrat is an extreme example of this, where the German states (Lands) send delegates who have to strictly follow their government’s instructions. The intention was to decentralize the German government after World War II. The result has been to “nationalize” Land elections, as it was in the US senate. From Bruce Ackerman, 2001 (PDF):
The voters do not independently elect members of the Bundesrat. Its members are representatives of each Land government and strictly follow its instructions. This means that voters in Land elections cannot concern themselves only with the competing parties’ performance at the Land level. They must also bear in mind that their votes in Land elections can shift the balance of national power by changing the party balance in the Bundesrat…
The result has been the nationalization of state politics. National politicians and parties cannot look upon the fate of state elections with relative indifference. They make them part of the national political game, seeking to transform state elections into votes of confidence on the Chancellor and his initiatives. Voters in state elections do not focus only on the promises and performance of their state governments. They tend to use their votes to send a message to Berlin about their satisfaction with the ruling coali-tion on the national level.
There’s some important broader lessons about reform here. The biggest would be that the law of unintended consequences still applies: structures that are nominally intended to preserve local political importance can, in fact, diminish it.
But I want to rest on one point from Schleicher that I think is broadly relevant: the need to understand how we structure institutions with an understanding of how actors will work within them. The lessons of both the US Senate and Bundesrat suggest, for example, that an effort to de-politicize the Canadian Senate by appointing “non-partisan” technocrats will be short-lived at best. It’s a legislature: it’s politics all the way down. National political parties are here to stay, and thinking that they’ll somehow stay out of the Senate if we tinker with some rules is just juvenile.
 Fixed from an earlier version where I erroneously wrote that the Commons would be the Parliament alone.