Electoral Reform and Party Financing
Bill C-16, An Act to Amend the Canada Elections Act: Brief to the Senate Committee on Legal and Constitutional Affairs
Sandra L. Smith and Anna Di Carlo, February 14, 2007

Donald H. Oliver, Chair
Senate Committee on Legal and Constitutional Affairs

The Marxist-Leninist Party of Canada is on record as supporting fixed-date elections to curb the power of the party-in-power to hi-jack the right of Canadians to determine their own fate. However, when the MLPC presented its views on Bill C-16 to the Standing Committee on Procedure and House Affairs on October 3, 2006, we recommended its rejection. In that submission, we argued that one of the key aspects of the reforms being carried out by the 39th Parliament of Canada is that they have nothing to do with providing Canadians with the mechanisms they require to exercise their right to elect and to be elected and their right to participate in arriving at the decisions which set the direction of the society and affect their lives.

It is said that by setting fixed dates for elections, Bill C-16 will help restore the confidence of Canadians in the system and that it will make the system fairer for all Canadians, whether as candidates of political parties, as independent candidates, or as electors. The argument is that while Bill C-16 does not provide for fixed election dates in the strict sense, it introduces an expectation that the governing party will no longer use the Royal Prerogative for self-serving purposes. Because the law does not touch the Royal Prerogative and enshrines it in the Canada Elections Act, it is said that the confidence convention at the foundation of responsible government remains intact. Thus, Bill C-16 provides a win-win situation.

In our opinion, this justification for the acceptance of Bill C-16 is very unsound. We believe that time will bear out the fact that the exercise of the Royal Prerogative for power-grabbing purposes will continue. Canadians hate the practice now and it has not stopped and legislation that creates an expectation will certainly not stop it.

We welcome this opportunity to further elaborate central points of concern.

Bill C-16 and Political and Constitutional Theory

In our submission to the Parliamentary Committee on Procedure and House Affairs we expressed concern about the apparent disregard shown for the impact of Bill C-16 on the existing political system and the political theory upon which it is based. At the heart of this theory, as it was envisaged, was the need to curb the use of the Royal Prerogative so as to put an end to absolutism. The system of representative democracy solved the problem of how to empower elected representatives to parliament on the basis of a first-past-the-post electoral system and the winning party governing so long as it maintained the confidence of the majority of the members of the House of Commons. One of the central aims was to curb the use of the Royal Prerogative against the popular will.

The theory of responsible government has been articulated and elaborated in the more comprehensive studies and reviews once conducted in Canada, such as through the work of the 1984 Special Committee on the Reform of the House of Commons. At that time, Eugene A. Forsey and G.C. Eglington were commissioned to produce a study on the issue of "the question of confidence in responsible government."

Underscoring the need to assess changes in the light of the system’s political theory, Forsey and Eglington wrote:

It is important to understand how things are supposed to operate in theory so that one can tell what can and cannot be done when the smooth running of the political machine breaks down. It may also be useful to know what can happen in constitutional theory in case we wish to alter or to improve the way we are governed now.[1]

Unfortunately, the advice embodied in this quote was, and continues to be, ignored. It is not even acknowledged. Why is this the case? A warranted conclusion to be drawn from all the reforms to the democratic institutions that have been introduced through the years is that the aim of the reforms has not been to improve the way we are governed, but to serve the partisan interests of the ruling elite. Thus, today, at a time when the demand of Canadians is to further democratize the system to empower all members of the polity to exercise their right to elect and to be elected, we are seeing a reversion to the concentration of power the system was meant to curb. The reforms that have been introduced since 1970-74 to legalize the domination of the system by political parties have all moved in a direction diametrically opposed to that of empowering the members of the polity.

By 1984, when Forsey and Eglington carried out their study within the context of addressing what reforms could be enacted to strengthen the role of members of the House of Commons, the system was already in crisis. The situation was such that they highlighted the divide that had emerged between the way the political theory of the parliamentary system is supposed to work in practice, that is, a Cabinet government responsible to the elected Members of Parliament and, in turn, to the electors, and the way it was working in reality with the consolidation of party-dominated government, with the Cabinet and the Prime Minister in particular having virtually "untrammelled powers."[2] The study argued that, "Our constitutional order is one organic whole and we graft alien features onto it at considerable peril to ourselves and our freedoms."[3]

As an example of this peril for the organic whole, Forsey and Eglington referred to the negative impact of the introduction of the selection of party leaders through party conventions on the powers of members of parliament. The selection of party leaders through party conventions was introduced in the name of democratizing the functioning of political parties, but by giving the power of selection to the mass membership of the political party, rather than to the elected members of the party as was previously the practice, a measure of control by the party caucus and the cabinet over the prime minister was lost. The answerability of the prime minister to the party caucus and the cabinet was transferred to "the party." The prime minister, faced with dissent, could lord his election by the members of the party over the members of the party caucus. Forsey and Eglington pointed out that this led to "reduction of the significance, status and power" of Members of the House of Commons.

As is known, Forsey and Eglington specifically rejected the idea of introducing fixed election dates, arguing in part that it would lead to a further concentration of power in the hands of the executive. Within this context they argued that the problem was the perversion of the confidence convention. The study reviewed the confidence convention extensively and revealed how it had come to be used not as a mechanism through which the members of the House of Commons could exercise their control over the executive, but the means through which the political parties and particularly the cabinet and prime minister, could beat the members of the House of Commons into submission. They argued that the misuse of the confidence convention was a perversion of the political theory of responsible government.

The perversion of the confidence convention has been addressed in the deliberations on Bill C-16 by proposals that the law should include the specific conditions under which a motion could be deemed to be one of confidence. This shows how far the system has strayed from its theoretical framework, where even the essential logic of the confidence convention as a means of preventing the abuse of power and curbing the ability of a government to act against the popular will has been lost.

The disregard for the political theory upon which the existing system is based throughout the series of self-serving political and electoral reforms over the past four decades has led to a concentration of power unseen even by the 19th century political theorists. The political parties of the establishment rejected the call of history brought forth by the expansion of the franchise which should have led to the further empowerment of the electors and the perfection of mechanisms through which the governed and the governors could share power. Instead, every reform has further concentrated power in the hands of the Cabinet and in the hands of the political parties of the establishment. These developments have been such that today the position of Canadian Prime Minister is recognized internationally as one which entitles the holder to virtually unlimited powers, while the Canadian party system is increasingly becoming a cartel system in which it can be foreseen that parties will no longer need members. They will function just fine with marketing and polling agencies financed through state funds, while their "members" will be trotted out for policy and leadership conventions for the sole purpose of giving them legitimacy.

Problems Foreseen by Forsey and Eglington

The conclusions drawn by Forsey and Eglington are worth revisiting on this matter especially in light of the possibilities they envisioned and the fact that several of these possibilities have become the reality of today. Long before the development of parliaments characterized by Stronach's, Emerson's and Turner's, not to mention Rae's and Charest's changing parties for "expedient" reasons, they wrote:

The fixed term concept necessarily entails acceptance of the idea of a change of Ministry during the life of a Parliament should one Ministry lose its majority, by revolt or by attrition from by-election losses or by defeat going to the essentials of the ministry. This may cause considerable difficulties even now with our three party structure. Consider what might happen if we return to Houses with multiple parties or with a body of Members with unstable political allegiances (the 'loose fish' of Sir John A. Macdonald's time.)[4]

Forsey and Eglington's possibilities also considered fixed election dates in the eventuality of minority governments. They wrote:

The problem of minority governments can arise now, and the solution is usually an early election. And what is this solution designed to solve? The weakness and instability and bargaining and manoeuvring and trimming which necessarily goes on in order to secure the moneys to the Crown and the carriage of the Queen's business. This situation is not highly regarded by many even now.[5]

They argued that such a situation might be regarded more favourably if it could be shown that the power of the individual members of parliament would be enhanced, but concluded this would probably not be the case because we are no longer living in the era of independent members of parliament. "This is the age of the political party," they wrote and they went on to paint this picture of minority governments with fixed election dates:

As for the ordinary member of parliament he will be marshalled by his whip to go over the top to support the attacks or the commitments of the party Leader. The ordinary Members of Parliament will be voted as blocs and counted on and committed as blocs to sustain the Leaders in the negotiating, bargaining, dealing and pressuring that will go on. This will not be an enhancement of the role of the Member of Parliament; it will be degradation, a reduction to the level of conscript in the battle of seedy dealings in which only those who follow the leader slavishly can hope to enjoy the fruits of office the hung nature of the fixed Parliament can provide.[6]

Fixed Elections Dates in the Age of the Cartel Party System

The equilibrium of the Canadian parliamentary system with a party-in-power and a party-in-opposition both claiming national representation collapsed in 1993. The coherence of the three-party system to which Forsey and Eglington refer, as well as the coherence of the parties comprising it, collapsed with it. Notwithstanding, the deliberation on fixed election dates is being conducted as though this were not the case. Furthermore, the deliberation completely ignores the development of the cartel party system in Canada and the dangers this poses to the democratic institutions.

The era of the cartel party system is marked by the increased public subsidization of political parties, introduced by political parties that had already entrenched themselves through previously legislated privileges. These parties are marked by their increasing dependence on state subsidies and their decreasing reliance on members and supporters for both financial support and volunteerism. This has developed in Canada to such an extent that Canada's political parties are increasingly described as "empty vessels" without members.

The pillar of the functioning of the party-dominated system of representative democracy -- political parties as primary organizations -- is corrupted. Political parties are supposed to provide the link between the electors and the government, providing the organizational structures for popular involvement in the political process. During elections, they are supposed to serve as the means through which the political will of the people is expressed, with the expectation that it will be turned into the legal will. Those who are not represented by the party-in-power are supposed to be represented by the party-in-opposition. So long as political parties representing less than 2 per cent of the electors selected the candidates, and riding associations had some semblance of being political organizations, so long as the system of a party-in-power and a party-in-opposition was in place, this seemed to function, albeit poorly. Now with the rise of the cartel party system which protects absolutism, the system is corrupted.

In this light, the claim that fixed elections will restore credibility, create a more equal footing for all political parties and for independent candidates, and increase voter participation are laughable to say the least.

Despite the passage of Bill C-16 in the House of Commons and the "fixed date" of October 2009, there is speculation that the Conservative government is trying to engineer a situation in which it can maintain itself in power come what may. Media reports are rife with speculation that the Conservatives are organizing to bring about their own downfall precisely to hold an election at a time when it believes it will be advantaged, speculatively as early as April or May. Such opportunism underscores the aim of concentrating power for interests that are alien to the good of the public and the polity.

The Conservative Party also insists that Canadians should not be worried that fixed-date elections will introduce American-style non-stop election campaigning. This, at a time when before our very eyes the election campaigning of the Conservative Party has hit the airwaves.

Since October, there have been further developments which represent a significant restructuring of the political institutions of Canada and further concentrate power in the hands of the Cabinet, eroding the duties, responsibilities, and rights of the members of parliament, not to mention those of the Canadian people, to participate in the decision-making process. On Tuesday, January 9, via the website of Public Works and Government Services Canada a tender was posted for "Public Consultations on Canada's Democratic Institutions and Practices." The contract is open to polling companies and think-tanks who can make a joint bid to perform the required services. This appears to be the second time that a private contractor has been used for "public consultations," the first being as part of the Romanow Commission on Health Care.

The solicitation for bids refers to the April 4, 2006 Speech from the Throne and states that "the government intended to fulfil its commitment to involve citizens by holding public consultations to examine the challenges facing Canada's democratic institutions and identify the priority, values and principles, which Canadians believe should inform changes that might be made to these institutions so as to improve how they work. Citizens will be asked to provide their views on various options for change."

Serious questions arise as to what the Conservatives are planning to do with this information, especially given all the changes they have introduced already without public consultation. The purpose is certainly not to base legislative changes on the results of the "polling." The party-in-power will not have to reveal the findings of these polls until six months after their completion. Is the same Harper Government that is talking about introducing fixed election dates to allegedly make the playing field more even planning to use this information, gathered at public expense, for its election campaign?

This announcement that polling has become an entrenched practice is an alarming development in the further erosion of the democratic institutions. It replaces duly constituted public consultations with a network of extra-parliamentary private sector organizations serving as advisory bodies to Cabinet. Such mechanisms have one intention and one intention only: the concentration of power in the Cabinet. The important role of members of parliament as representatives of their constituents, the role of Parliament and the Senate and their committees to deliberate on the problems facing the polity and the legislation required to address these problems will be further undermined. Political parties which are supposed to serve as primary organizations within the system have become and are seen to be the courtiers declaring that the Emperor is wearing a fine suit of clothes.

Further witness to the hypocrisy and duplicity of Bill C-16 is the fact that the same government that says it wants to make the situation more equal and fair, is currently challenging the ruling of the Ontario Court that found it unconstitutional that political parties garnering less than 2 per cent of the national vote or 5 per cent of the vote in the ridings in which they field candidates are not entitled to the per-vote-financial-subsidy to which the political parties that have entrenched themselves into the state are entitled. Not only has the Attorney-General challenged the Ontario Court's ruling, but at the beginning of the year, when the public subsidies were issued to registered political parties, and the law of the land as it stood required the subsidies to be paid to all political parties, the Ontario Court ruling was simply ignored.

Conclusion

What we conclude is that in this era of the cartel party system, the practice of the party-in-power using the threat of an election to the detriment of other parties and independent candidates and the entire polity as a whole will continue and further exacerbate the crisis of the system. When it suits the party-in-power, especially in a majority situation where it can do as it wishes, fixed-date elections will be a concession at best since nothing prevents it from dissolving Parliament under one self-serving hoax or another. In minority government cases, as we are seeing today, the practice will be finessed, becoming part of the closed-door negotiations and seedy dealings. The electors and the ordinary members of parliament will be left as marginalized as ever.

What emerges is that the Royal Prerogative itself needs to be eliminated, along with the failed mechanisms that are supposed to curb it and that have been turned into their opposite. What is required is a system that transfers power to the hands of the Canadian people. This is where sovereignty should be vested, not in the elites who wield the Royal Prerogative.

The proposal for fixed election dates is one more bitty reform in an unfolding process of changes to the electoral and political process which disregards:

1) the demands and concerns of Canadians for empowerment;

2) the political theory upon which the parliamentary system is based, the impact of changes in light of that theory, and the further undermining of the system of representative democracy based upon it;

3) the increasing concentration of power in the hands of the executive;

4) the need to involve the polity in full debate on these matters so that the deliberations can be brought into the realm of public opinion rather than marginalized partisan parliamentary exchanges and committee reviews;

5) the need to involve Canadians in deciding for themselves what kind of changes should be enacted to the political and electoral process.

The Marxist-Leninist Party of Canada believes that these developments are fraught with danger. While we are raising matters beyond the scope of Bill C-16 itself, we do not see how a conclusion can be drawn on the matter of fixed elections without taking into account all of the other factors vis-a-vis the incoherent state of Canada's electoral and political system. We strongly believe that a time must come when it is recognized that there are profound problems with the system which must be addressed by putting the need to empower Canadians in the first place and by putting their role in deciding how this should be done at the centre stage. The tinkering with the system fails to address this need and exacerbates the crisis of a system that has lost all coherence and may well become even more dysfunctional than it is now.

Bill C-16 will further concentrate power in the hands of the upper echelons of the political parties. It will give rise to further absolutism. It will further exclude and marginalize Canadians from the political process and further erode the role of Parliament in deliberating on legislation. It will obliterate the building of public opinion for changes that are required to move the society forward.

All the evidence indicates that the bitty approach to electoral and political reform has no other aim than hiding the overall impact of these changes on the concentration of power in fewer and fewer hands. Canadians need the Honourable Members of the Senate Committee on Legal and Constitutional Affairs to take an historic stand and reject Bill C-16. It is clear that Humpty Dumpty has had a great fall and all the king's horses and all the king's men cannot put Humpty Dumpty together again. What goes around comes around and the acceptance of changes that are presented as seemingly harmless adjustments to "make the system work better" could very well be the wind that sows the whirlwind.

Notes
1. Forsey, A. Eugene and Eglington, G.C. The Question of Confidence in Responsible Government, Study Commissioned by the 1984 Special Committee on the Reform of the House of Commons, p 3.
2. Ibid p. 5.
3. Ibid p. 2.
4. Ibid p. 224.
5. Ibid p. 231.
6. Ibid p. 231.