Bluffer’s guide: What did Justin Trudeau do to the Senate?

This changes everything. Or nothing. Or something.

Let’s attempt to parse this week’s dramatic announcement from the Liberal leader, keeping in mind that much remains to be settled over the coming weeks and months (and perhaps years and decades).

So what the heck did Justin Trudeau do on Wednesday?

Essentially, Mr. Trudeau told the 32 senators who had previously been members of the Liberal parliamentary caucus that they were no longer welcome in said caucus. He also announced that, if he becomes prime minister, he will pursue a non-partisan appointment process for the selection of senators. Here is the prepared text of his remarks to reporters, in which he posits that the Senate has two problems: partisanship and patronage.

So those 32 senators are no longer Liberals?

Well, sort of, kinda, but not really, depending on how you look at it. Those senators who, as individuals, hold memberships with the Liberal Party of Canada are still members of the Liberal Party of Canada. But they are no longer members of the Liberal parliamentary caucus. And, according to Mr. Trudeau, “as far as political operatives, these senators will no longer be Liberal organizers, fundraisers, activists in any form.”

So what does that mean?

Essentially, or at least in theory, Mr. Trudeau has drawn a line between himself (and the caucus he leads) and any senators who might happen to be members of the Liberal party. In theory, he is no longer accountable for those senators and they are no longer beholden to him. In practice, senators won’t attend the weekly meetings of the Liberal parliamentary caucus and I’m told there will be no more consultation with or co-ordination between the Liberal caucus and senators. The senators and their staff also won’t have access to Liberal party resources such as the party’s research bureau. Senator Terry Mercer has some desire to remain active in Nova Scotia, but, according to Mr. Trudeau’s office, while senators will remain party members, they won’t hold any official capacities with the national party and won’t be permitted to headline fundraising events as guest speakers. Does a ban on fundraising for the national party include a ban on fundraising for federal candidates? Such details will have to be worked out.

So the 32 senators are now independents?

Not quite. They might have chosen to go their separate ways, but instead they’ve decided to stick together as a Senate caucus and will be considered a “recognized party” in the Senate. The rules of the upper chamber define a “recognized party” as “a caucus consisting of at least five Senators who are members of the same political party. The party must have initially been registered under the Canada Elections Act to qualify for this status and have never fallen subsequently below five Senators. Each recognized party has a leader in the Senate.” In addition to sticking together, the senators have also re-affirmed the leadership of Senator James Cowan and so he remains the leader of the opposition in the Senate. The Speaker of the Senate seems basically satisfied with this arrangement.

So can they still call themselves Liberals?

Yes. Officially, the 32 senators will be known as the Senate Liberal Caucus.

Doesn’t the Liberal party constitution define the “caucus” as “those members of the Party who are members of the House of Commons or the Senate of Canada”?

It does. An amendment will have to be made. Here, in that regard, is a letter from the Liberal House leadership to Liberal party president Mike Crawley.

Didn’t the NDP suggest that senators be prevented from sitting in party caucuses?

They did. And they tabled a motion to that effect in the House.

But didn’t the Liberals vote against that motion?

They did. But the Liberal argument then was that it would be unconstitutional for the House of Commons to tell the members of the Senate what to do.

But it was still the NDP’s idea first?

I confess I don’t have the time to review the complete history of Senate reform proposals to determine the precise origins of this one, but here, circa last May, is Greg Sorbara, a former Liberal cabinet minister in Ontario, proposing an independent appointment process and a Senate composed of independents.

I’m generally confused.

Look at it this way: there are now three distinct proposals on Senate reform on offer. The Conservatives would like to see the Senate be an elected chamber (which might require at least some agreement from the provinces to amend the constitution). The New Democrats would like to see the Senate abolished (which would almost surely require some agreement from the provinces to amend the constitution). And the Liberals would like to see the appointments process reformed and the Senate composed of relatively independent senators (which the Liberals seem to think can be done without amending the constitution).

What would the Liberal proposal mean for the future of the Senate?

This requires some speculation.

Here is Emmett Macfarlane’s take (note: he was consulted by the Liberals during the formulation of their plan). The Liberals still have to explain their proposal for a new appointment process. And, of course, it remains to be seen what kind of individuals would be appointed by such a process (if the Liberals form government and if the new appointment process is implemented). Even if the individuals appointed are relatively free of any partisan allegiance, they might still join established parties or groups in the Senate or form new alliances. “It’s useful for the Senate to function that way. There’s a lot of path dependency in there: it’s simply that if you’ve always functioned along partisan lines and you organize yourself along those lines and it simplifies committees and debates and so on, then I expect they’d still be tempted to organize themselves in that way,” says says Philippe Lagasse, a professor at the University of Ottawa. “Now the question becomes if, over the years, you keep naming a successive number of independents, what does it end up looking like? Well, maybe it ends up looking like a little like what the House of Commons looked like in the early decades of Confederation where you had loosely knit factions and we sit that in the British House of Commons and the Lords really as of the 18th century. There tends to be a natural gravitation towards certain types of units, certain types of factions.”

Would such a Senate be more likely to assert itself and obstruct legislation passed by the House? Lagasse argues no: that a chamber which has tended to defer to the democratically elected House would likely continue to do so (and that, if need be, the Prime Minister could use his or her power to appoint more senators to break any gridlock). A future prime minister could also, he notes, scrap whatever appointment process Mr. Trudeau might institute.

Eight years ago, Stephane Dion suggested that an independent appointment process might complicate the prime minister’s accountability for the appointments that he makes (via the Governor General). But it might also be worth noting, in the current context, that Mr. Trudeau’s move was preceded by Stephen Harper’s decision to put the Government Leader in the Senate outside the cabinet.

In the short term, the 32 senators will have to decide how they make decisions and handle votes. As noted above, there is now a line between Justin Trudeau and the senators. But the senators are members of the Liberal party and they’re associating themselves with the Liberal party, a party which has Justin Trudeau as its leader. Will the public assign less responsibility than it might have before to Mr. Trudeau for what those senators say and do? “I don’t speak for the Liberal party,” says Senate opposition leader James Cowan. “I’m a Liberal and I share Liberal values, but I don’t speak for the Liberal party, I don’t intend to speak for the Liberal party and nobody would interpret how I vote or anything I say to represent the Liberal party.”

Mr. Trudeau has, in perception or practice, surrendered some of his power to control those senators—something that might matter more if he becomes prime minister. “They’re still associated with the Liberals, they still call themselves Liberals, but Trudeau has lost the lever to some degree to reign them in on the parliamentary side and it does become an issue when you want to get things through the Senate,” says Lagasse. That might ultimately strengthen the idea that the Senate is an independent institution.

Of his Senate caucus, Mr. Cowan sees both opportunity and challenge. “We don’t have all the answers yet, we probably don’t even know what all the problems are, but there’s an optimism and there really is a willingness to say, all right, we’re going to make the best of this and we’re going to succeed,” he says. “We recognize where we are and we’re going to do our job.”