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No Referendum, No Legitimacy

Featured government Philosophy Policy Rantish

The Liberal Government have ruled out having a referendum on electoral reform prior to the election for the 44th Parliament.  This is a monumental mistake.

While the Liberals were still in third place, they made a great many promises that have come to be seen as inconvenient or unrealistically ambitious.  The RCAF may stay in Syria longer than the Parliamentary ambit approved during the 42nd Parliament, Canada saw fewer Syrian refugees accepted than had been planned by the previous Conservative Government despite a promise of 25,000 (later clawed back to 10,000 before the end of 2015 and 15,000 in the next couple of months), whether Trudeau’s cabinet is truly gender-equal is ambiguous (due to title-shenanigans, elevating Ministers of State to Minister and apparently giving a pay bump without them controlling a department).  Among these promises was that 2015 would be the last federal election under the current electoral system, First Past the Post (or “Single Member Plurality”).  The Liberals did not let slip which model they would prefer.  Few people expected their monumental victory on 19 October, but it catapulted them into office with a clear majority and thus the legitimacy to make national policy.

Except it’s not that simple.  During the election, the Liberals were purposefully vague on what their electoral reform policy would be.  “Not FPTP” is not much of an actual policy – it is not a plan for action, but rather an expression of preference.  “Consultations” are nice, but that can mean everything from chatting to some friends at Hy’s over steak to a national referendum.  Now we know that “consultations” is likely more like the former than the latter, with a referendum categorically ruled out.

The logic behind this is that, in granting such a stunning victory, Canadians gave the Liberals the right to change the electoral system as part of their mandate.  There’s some truth to this, but more dishonesty.  The Liberal Government have every right to change the Canada Elections Act with a simple majority.*  Just because they have the right to do so doesn’t give them the legitimacy to do so.  The Government can legitimately use their majority in Parliament to set common national policy without consultation with the public – their election gives them the mandate to carry out their Parliamentary term.  Parties run on certain policies as part of their quest for a mandate such that their victory gives them legitimacy to make hard choices quickly.  Liberal supporters of reform use this as a reason that their electoral reform policy could be legitimate without a referendum.  This argument carries odd internal logic.  FPTP is undemocratic and returns disproportionate results to Parliament, Parliament should have a more representative system, the Liberals campaigned on a more representative system and have power, thus the Liberals should change the electoral system.  The first two parts are correct.  FPTP has benefits, but proportionality isn’t really one of them.  However, they got their majority government on the backs of FPTP – they only got a shade more of the popular vote than the Tories did in 2011.  With less than 40% of the popular vote, their own logic would have them using an undemocratic majority to alter a fundamental part of electoral democracy.

Liberals and New Democrats howled with indignation when the Conservative Government changed voting ID requirements and reformed campaign finance on the strength of their majority.  The former now claims the power to make extraordinary changes without even saying what their preference is, much less asking voters.

Some arguments are even worse – so bad, that they’re appalling in their sheer brazenness.  Spencer McKay argues in the National Post that we shouldn’t have a referendum because it might fail.  We should not trust voters with deciding the electoral system because they might not agree with us.  This isn’t an isolated incident – it’s a common attitude amongst supporters of Proportional Representation.  The leading PR advocacy group, Fair Vote, does not believe there should be a referendum; that Parliament should just make it so.  This is a cowardly and arrogant way to approach reform to constitutive policy.  Liberals and New Democrats howled with indignation when the Conservative Government changed voting ID requirements (making it easier for people with irregular ID to vote but removing the very error-prone Voter ID cards) and reformed campaign finance on the strength of their majority.  The former now claims the power to make extraordinary changes without even saying what their preference is, much less asking voters.

Some things should not be subject to a referendum.  Ireland’s gay marriage referendum, though victorious, was categorically flawed in that fundamental rights should not be subject to referenda as a matter of course.**  Common policy does not need to be put to voters – that’s why they elect Parliamentarians.  Indeed, California’s experience with ballot initiatives show how dangerous allowing direct voter control over policy levers can be, creating a dog’s breakfast of unworkable policy that is slowly destroying the Golden State.  Changing the voting system, however, is neither of these.  It’s constitutive policy, closer to a constitutional change than altering the tax code.  Elections and the voting system are designed to hem in the power of political parties and the Government.  It would be perverse for a political party to change the electoral system without consulting Canadians.  Had the Liberals made electoral reform, including an actual plan, a key piece of their platform and received over 50% of the popular vote they might have an argument in favour of acting through Parliament.  The truth is that neither condition was met.

By being seen to ask enough of the right people and get enough of the right groups on side, they can credibly pretend that they’ve gained the legitimacy to change constitutive policy without a referendum.  They’ve consulted people, but not The People.

Right now it looks as if the Liberals will canvass Canadians through small-scale “consultations” at the regional level.  These are almost certainly a sham.  Focus group-style consultations can be made to return any result they like.  The people who show up for them are overwhelmingly more likely to have skin in the game for one system or another.  They give no voice to the voter who does not wish to invest time in electoral policy.  This style of consultation is an attempt to manufacture a kind of “Social License“, one of the most anti-democratic and corrosive concepts to enter public discourse in the last few decades.  By being seen to ask enough of the right people and get enough of the right groups on side, they can credibly pretend that they’ve gained the legitimacy to change constitutive policy without a referendum.  They’ve consulted people, but not The People.

It’s again worth noting that the Government have not proposed an actual plan.  There are essentially three alternatives we can expect them to choose from: Mixed Member Proportional (FPTP constituency elections remain but a certain number of seats is used to top up the results, making them proportional), STV (Single Transferable Vote, in which voters rank candidates and candidates are eliminated in successive rounds, redistributing their voters’ choices to their next choices), or straight up PR (Proportional Representation, which can be done in districts or nationwide).  People assume the Liberals are angling for STV, as they believe that waffling centristish parties would benefit most as the second choice for most voters.  This is debatable, as the system changes party coalitions and how parties behave and voters vote, but not implausible.  Others think the Liberals could go for PR because it would remove allegations that they would essentially be rigging future elections for themselves with STV.

With this current setup, no matter what they choose they will be accused of building the electoral system for their gain.  Their choice is necessarily hyperpartisan with no constraint from voters.  It’s an explicit rejection of the philosopher most at the heart of the modern Liberal Party (if you can say that it has a philosophical heart at all), John Rawls.  One of Rawls’ more notable contributions was the “veil of ignorance”, which can be distilled down to the idea that there are decisions (such as economic and political structure) that should be made as if one was ignorant of how the rules would affect them specifically.  Under their current plan, the Liberals can claim neither the veil of ignorance nor technocratic merit.  The Good Ship Voting Reform could sink and never be raised again.

Canada needs voting reform, but it needs it done right.  Voting reform requires a referendum to be legitimate.  The Liberals have long showed a particular brand of hubris that they were not merely a political party, but part of the Canadian state.  The CBC, the Supreme Court, the Liberal Party.  They are only a political party, and political parties need to consult the voting public to make constitutive changes.  It is their job to convince voters that these changes are worth leaving what Canadians have come to know, if not love.

Sign MP Scott Reid’s petition to the House of Commons that the Government pursue a referendum.

 

*Whether or not this would pass muster in the Tory-controlled Senate is unclear, but there are enough vacant seats that Trudeau could appoint a slew of Grits to Senate posts, with or without his nominations fig-leaf currently under development, without using the special appointments rule of Section 26 in the Constitution.
**As a strategic move, it obviously paid off.  I'm more worried about precedent.
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