Thursday, 21 June 2012

CONspiracy Theorists: Politics, Patronage and Partisanship

Mel Gibson in Conspiracy Theory (1997)
There are some people - let's call them non-Conservatives - who look at everything the government of Stephen Harper does with suspicion and, not surprisingly, see conspiracy around every bend. There is much in this current government to dislike. It is authoritarian, smug, secretive, dishonest, corrupt (to degrees) and, in many regards, undemocratic. Acknowledgement of this fact, however, often leads many casual observers down a spiral of idiocy.

It is one thing to condemn a government. It is quite another to condemn entire institutions as faulty or, worse yet, corrupt, simply because of the behaviour of one government. A government is not a reflection of an institution. Governments are transient. Their actions and policies can be reversed. Conversely, institutions are more permanent, yet not unalterable, but require a substantial degree of time to manipulate and change by a single regime. Stephen Harper, even with an majority, will be unable to fundamentally change our institutions. His impact, even if it is is detrimental, is reversible. The Parliament of today, after all, cannot bind future Parliaments.

Wednesday, 20 June 2012

Time for Liberals to Forget Jean Chrétien

In an interesting, although not unproblematic commentary, former Liberal leader Michael Ignatieff lays out a rudimentary vision of a reinvigorated party. The key to success is to reach out to younger generations of Canadians in ways it and the other major parties haven't. This, of course, represents a daunting challenge in an age where young people are often disengaged with party and electoral politics, favouring instead participation in broader social movements if indeed they choose to participate at all. It's an idea with potential, but remains far from fleshed out.

Ignatieff's piece can also be read is a subtle broadside against the entrenched party establishment, both within the Parliamentary and pure party wings of the Liberals. Of course, it doesn't name names or directly call out individuals within that leadership. It should.

Tuesday, 19 June 2012

The Democratic Bypass

Recently there have been a spate of troubling suggestions by a number of groups - left, right and centre - advocating for a complete bypass of proper democratic mechanisms in order to achieve certain policy goals. What has spurred these moves has been the rejection of these groups and their desired outcomes by duly appointed representatives in each of their various constituencies. This trend is alarming as it signals, at least in part, that individuals and organisations no longer regard elected assemblies as being repositories of legal or moral authority. If an outcome flies in the face of one's expectations, the defeat is seen as inconvenient but not final. It amounts to a collective bypassing of the democratic process. In essence, these groups are attempting to go over the heads of the people.

Of course, not all attempts at circumventing assemblies are illegitimate. Their are times when there are just grounds for seeking remedy. Governments that overstep their bounds and violate constitutional principles or rights laid out in the Charter should be brought to account by courts. Such instances, however, remain exceptional and should not be used to override basic pieces of legislation or public policy. To do so cheapens rights and abuses a remedy that is already subject to much criticism. Additionally, public pressure may be brought by protest to focus attention on abuses, but ultimately, regardless of the outcry, the elected assembly remains the final arbiter of public policy, unless an abuse can be proven in court.

Toronto's boisterous mayor, Rob Ford, has publicly (and woefully) stated that decisions of Toronto's city council - the amalgamation of its peoples' collective political will - is 'irrelevant' and should be ignored by the province and its arms-length transit agency, Metrolinx. As is often the case, however, Ford contradicted his own claim, demanding that the province respect the will of council and allow the sale of surplus TCHC houses. Ford's contradictory claims can easily be attributed to his bravado and the brashness of his approach. As foolish as his claim to irrelevance was, there were few, apart from his supporters and right-wingers, who truly took his statement as fact. 

Two recent instances have been more troubling. In both, groups marginalized to various degrees by the government of the day have attempted to vent their frustration to a higher order. Toronto Cycle - formerly Toronto Bike Union - has sought to remedy what it sees as the inadequacy of  policy made in Toronto regarding cycling infrastructure by taking its complaint to the province of Ontario. The complaint stems from the rejection of biking as a legitimate means of transit by the Mayor - indeed, Ford sees bikes as mere leisure - and the removal of existing bike lanes on Jarvis Street and alterations on other thoroughfares. The policy may be wrongheaded, based on anecdotal evidence and may do little to enhance the roads for drivers as claimed, yet however ill-thought the policy itself, the legitimate means to fight it or have it overturned is at council.

Certainly these advocates are correct: municipalities are creatures of the provinces. This is a constitutional fact. However, what is clear from the spirit of the text and subsequent practice is that it was never intended for the provinces to directly administer cities from the centre. Ontario, through a host of legislation and the establishment of numerous agencies, boards, and commissions (the Ontario Municipal Board for instance), essentially allows local administrations to govern local affairs. Indeed, it establishes in legislation the principle of local democracy by mandating the establishment of council and an executive. Moreover, it includes means of challenging the decisions of council through the aforementioned agencies, boards and commissions. In short, appealing to Cabinet to challenge policy runs counter to democratic practice and attempts to imprint onto the province a role as direct administrator it never intended for itself. Constitutionally Ontario has the power to intervene in any aspect of a city's affairs, this does not, however, mean that doing so is justified.

Another group dissatisfied with recent public policy is the Ontario Medical Association (OMA). In an attempt to bring the deficit somewhat closer to balance, Ontario's premier, Dalton McGuinty, enacted a series of cuts to  to fee rates for the province's doctors. In fairness, it did in a less than consultative manner. Nevertheless, it remains wholly within the purview of the province to legislate in this way. Predictably, the OMA immediately launched a 'Charter challenge', claiming that doctors' rights had been violated due to the dearth of consultation. As with bike advocates, this attempt to go over the head of the peoples' elected representatives is wrongheaded. There is no Charter right to consultation in the formation and implementation of public policy.  The move shows incredible disrespect for the democratic process.

The two examples are merely formal manifestations of this phenomena as instigated by two highly organized lobby groups. Ironically, individuals and groups advocating for democracy have consistently advocated an approach which is antithetical to democratic practice. Take for example interim Liberal leader Bob Rae, who in November called on the Governor General of Canada to withhold royal assent to the Conservative bill that ultimately killed the Wheat Board. Apparently, in order to strengthen the democratic process and uphold the law, it was necessary to ask an unelected figurehead with no precedent to resort to an act that would have no legitimacy to override the collective will of the Canada in the form of the elected House of Commons and abort a bill desired by an executive with the confidence of the house. Indeed, a Quebec woman became something of a folk hero by writing the Queen to request that she fire her Prime Minister. One wonders what is more troubling: the utter lack of understanding of the functioning of this country's institutions or the widespread support for a course of action so contrary to practice and democratic principles.

At its core democracy is about making decisions. It begins with an electorate choosing those who will govern on their behalf. Choices must also be made in the realm of public policy. By the very nature of this enterprise, no legislative agenda will please everyone. There will be, to put it bluntly, winners and losers. Popularly elected bodies, be it local council or the provincial legislature, have institutional, democratic and moral legitimacy to make decisions. When groups - be it cycling advocates or doctors - find themselves facing the blunt end of policy decisions, the rhetoric shifts from democratic to technocratic. The democratic avenues having been foreclosed, the battle is fought on the value of the policy, whether a policy is 'good' or 'bad'. Cyclists are essentially arguing that the policy is bad policy and should thus be overturned. The OMA is making a similar case, but taking its battle in another direction. Both forget that these are normative decisions.  

There are no neutral statistics, no political facts waiting unblemished to be picked up and converted into 'good' public policy. All require mediation and all are subjected to normative frames of reference. The Left should be particularly careful when advocating for policy on such technocratic grounds given that the Right can and is making the same arguments in Europe. One need look only to Italy - where an installed technocrat is implementing policy on such grounds - to see the danger. At some point groups need to respect the will of elected representatives, and thus the electorate, whether they agree or not. This does not mean ceasing to agitate or rallying civil society. This can be done without negating electoral democracy.

These attempts at a democratic bypass are symptoms of a larger malaise, but they are also product a mistaken conceptualization of what democracy itself means. At the risk of invoking 'the silent majority' - the tired, largely fictitious multitude used, often effectively, by the Right - minorities, albeit vocal ones, must resist the urge to imprint their own views onto the public by using their own enthusiasm and extrapolating from that the larger public sentiment. Moreover, there needs be a balance between two extremes, between those who see the ballot box as the sole measure of democracy and those that see civil society movements (of varying popularity and membership) as the singular expression of democracy. The reality is that both are required for a healthy democracy. One side cannot sustain a democracy by negating one to bolster the other. To borrow a tired analogy, they are two sides of the same coin. Civil society should not be marginalized, yet it has a reciprocal obligation to respect democratic outcomes unless there is a constitutional question at stake. Faith in our institutions - from city councils to provincial legislatures - cannot be restored by undermining their authority or legitimacy in the name of democracy. That way lies ruin. 

Friday, 15 June 2012

Opposition, Omnibus & the Hyperbole of Democracy

As with any show of political theatre - which at its core was what was on display in Ottawa over the past few days - some performances tend toward excess in form and prose. While some MPs are to be commended, particularly those from the 'minor' parties, the rhetoric eschewing from the Official Opposition once again illustrated a profound misunderstanding of the very system of government of which it wishes to assume the reins of power. One would assume that a prerequisite for governance - beyond, of course, an electoral mandate - is an understanding of the institutions and conventions which underpin that system. The conceptualization of Canadian Parliamentary politics as espoused by the NDP is fundamentally and irrevocably at odds with the working and historical reality of Westminster institutions.

Most strikingly, the Loyal Opposition seems intent on implanting onto that role something which is entirely antithetical to it. Chiefly, it seems intent on conceptualization opposition as if its role is legislative and governmental. Contrary to the rhetoric and some intimations, the 'Official Opposition' is not a part of the government. The government - that is, the political executive - is comprised of members of Parliament chosen by the Crown as representatives by virtue of commanding the confidence of the House. It is the government that presents a legislative agenda to the elected assembly for its approval.

Yes, the Opposition has ample opportunity to participate in the legislative process, most directly through committee amendments or private member's bills. It is, however, important to make an important distinction here. It is not by virtue of being the Opposition that this is possible, rather it is by virtue of each individual as elected representatives - Parliamentarians - and not by party standing. What is often lost in the din of party politics - coupled with a severe public misunderstanding of how Parliaments form - is that the Commons is made of up of individuals and not parties. It is the collective will of individuals - although often bound by party loyalty (or discipline) - that results in the formation of this collective.

The role of the opposition is primarily to do just that: to oppose. It exists to hold the government to account for the actions it undertakes, including its legislative agenda. It does this primarily through Question Period - although the utility of that exchange is now entirely doubtful - and committee work, but also by engaging with the Canadian people, often through soundbites delivered by the media. Yet the current Opposition seems intent on inflating and conflating the role beyond its current limits. One need only look to the use of backdrops and signage in the wake of the ascension of of the New Democrats to that role - role, not office - largely to enhance its own standing. It is intent on creating an office that existed only loosely before.

Part of this inflation of the role has been buttressed by the conflation of the Opposition with a legislative role. As successive leaders beginning with Jack Layton and continuing with Thomas Mulcair have spuriously claimed, the role is not simply one of opposing, but of proposing. As Mulcair articulated recently, "We're there of course as the Official Opposition, sometimes to call the government to account, to oppose, but more and more you're going to hear us propose". The claim is that Canadians want Parliament to work together and, as such, that this somehow obligates the government not only to entertain ideas from opposition parties, but also to incorporate them into the agenda.

This is a phenomena that I've coined the 'Laytonian Fallacy' and it is entirely at odds with basic operating principles of Westminster Parliamentary politics. The fallacy assumes that the desire of many Canadians for Parliament to 'work together' elevates the opposition's role - without constitutional (written or conventional), legal or institutional justification or legitimacy - and, strangely, somehow supersedes electoral results! It is a troubling theory - especially for a party with 'democratic' in its name - to willingly disregard the sole mechanism for choosing the composition of our Parliament (and thus the government) for some strange cooperative principle which is entirely absent and, it must be reiterated, antithetical to the system of governance itself. Canadian government is, by nature of its history and institutions, adversarial. [It is also worth noting that the claim that this must be the only legitimate course of action because '60% of the country voted against Harper' strains logic given that a greater number (70%) voted against the Official Opposition).]

The basic working principles of Canadian democracy are quite simple. A government must command the confidence of the House. This means that a simple majority of individual MPs must side with the government on any given matter of confidence. The basic working principle of Canadian government does not entertain the notion that all parties must contribute to the legislative process. Parties have little in the way of official standing beyond what is granted to individual members - places on committee, opportunities to ask questions - by their party's standing in the House. The majority principle is quite clear. To insist on some inflated degree of consensus - a mythical supermajority - is foreign and should be dismissed. Canadians may desire 'greater cooperation', but this cannot and should not mean that elected representatives ignore the rules of the game.

Turning briefly to recent events, much has been made of the 'anti-democratic' nature of the budget omnibus bill. This is, to a substantial degree, little more than hyperbole. Two points need to be addressed. First, the notion that the bill represented a 'Trojan Horse' is not only an inapt allusion, but a partisan delusion. Something can only be considered a Trojan Horse when the contents are unknown and have an effect running contrary to what was expected. Had the budget bill been filled with Conservative soldiers ready to slaughter an unsuspected opposition, then and only then could it be considered a Trojan horse. Additionally, had the Conservatives been trying to hide these elements, it runs contrary to common sense that they would, whilst concealing them, tout them openly as having benefits for 'jobs and prosperity'. In this sense, the omnibus was more or a Pythonian Wooden Rabbit than a Trojan Horse.

Indeed, the real motivation for the omnibus, in my estimation, is far more deleterious and portends much worse than a simple attempt to sneak changes through. The omnibus was chosen, not because it was a convenient mechanism for obfuscation but rather because it provided a convenient means to avoid altogether the proper oversight mechanisms of Parliament. In essence, the omnibus was not an attempt to deceive but rather a heavy handed ramrod aimed at bypassing scrutiny. By attaching a host of clauses to the budget bill the government was, simply put, able to considerably reduce the amount of time any item would have spent before Parliament. It is indicative of a government averse to oversight and accountability.

The claim that the sheer volume (400 or so pages) of the omnibus makes it likely that clauses could slip through unnoticed also fails to hold water. The collective breadth of the legislative agenda would still amount to some 400 pages (perhaps more) if the omnibus had been broken down into smaller pieces. The same volume would have to have been perused by MPs regardless. 400 pages in twenty 20 page chunks is still 400 pages. Splitting the bill into smaller sections may have increased the amount of specific attention each item received and delayed passage by a few months, but the net effect would be roughly the same.

Second, the notion that an omnibus is somehow an affront to democracy is an unhelpful feat of hyperbole.
While distasteful and, as indicated above, obviously designed to avoid sustained scrutiny, the bill was, in essence, procedurally sound. Again, it is helpful to remember that Parliament sets its own rules and, in this case, these are rules that have long been in effect and could have been changed by previous Parliaments. Indeed, it is a difficult stretch to claim that an act lacks democratic legitimacy when it has the confidence of the House. It is the job of the government to propose, while it is the job of the opposition to oppose. The Commons demonstrated that it was prepared to hold the government to account - even if it was met with legislative failure. It is again important to remember that Parliament is made up of individuals and it is the collective will of these individuals that shape political outcomes. Ratcheting up the hyperbole merely serves to undermine the legitimacy of the very institutions many have set out to save. Parliament cannot be salvaged by disregarding what is intrinsic to it. Between elections, governments propose and oppositions oppose. Success for the opposition is not and should not be measured by its ability to ground the government's agenda to a halt - indeed such obstructionism would be undemocratic - but rather by its ability to shine a light on process. By this measure - the proper measure of our parliamentary and democratic heritage - the opposition, Official and not, admirably fulfilled its proper, democratic role.