On practical changes

One of the main attacks on the NDP's election platform has been the question of what support there is for the constitutional change required to abolish the Senate. But it's worth distinguishing between the relatively limited constitutional role actually mandated for the Senate which requires following the constitutional amendment formula, and other past practices and historical expenses which should be subject to change in relatively short order based on existing Senate precedents.

On that front, let's take a closer look at Kady O'Malley's criticism of Thomas Mulcair:

(F)or the time being – and, most likely, at least, the short to medium-term political future – the Senate will continue to exist. As the Supreme Court has made supremely clear, changing that reality via abolition would require the unanimous consent of the provinces, which has thus far appeared elusive
That means it will continue to have a role in the legislative process, no matter how many baleful glances an incoming NDP government might aim in its general direction.

Contrary to Mulcair’s comments this week, that role is not, in fact, to simply sit quietly and wait for the House of Commons to send over a stack of bills for automatic approval, but to review – and, if it should see fit, amend, and in some instances, vote down – legislation, including, but not limited to, proposals put forward under the aegis of a duly elected government.

On the most basic level, that necessitates, at the very least, the designation by the government of a senator to do precisely that: introduce bills that have been passed by the House of Commons — a role traditionally undertaken by the Leader of the Government in the Senate, the post that Mulcair has now pledged not to fill.

Without at least one sitting senator — newly appointed, or recruited from the current selection — to serve the emissary of the executive, bills duly passed by the House of Commons would simply pile up outside the Chamber like so much undeliverable mail.

Once those bills were added to the Senate to-do list, of course, it would be left to the occupants to decide how – and when – to proceed with government business, which is typically shepherded through the pipeline by the Senate government leader.

In the absence of such a taskmaster, it’s not clear who, precisely, would set the daily schedule.

It's true that the post of Leader of the Government has historically existed and has been incorporated into current Senate rules and practices, with one of the responsibilities including the management of the government's agenda. But unlike the bare existence of the Senate, those rules and practices are subject to change without any necessity of getting into discussion of the constitution.

Moreover, there's ample precedent for legislation being considered by the Senate in the absence of a formal connection (partisan or otherwise) between the bill's sponsors in the House of Commons and the Senate. Bills introduced by NDP, Green, Bloc or independent MPs who lack a partisan link to the Senate which pass in the House are already regularly brought before the upper chamber and dealt with in accordance with its standard legislative review process.

To date, that's generally been the result of senators agreeing to sponsor individual bills on a one-off basis. But when the track record suggests that the Senate customarily doesn't stand in the way of at least reviewing legislation duly passed by the House, there's no reason to think the upper chamber will suddenly see itself as having the right to systematically ignore legislation passed by elected representatives when it reflects a government's agenda rather than private members' bills.

It could be that a process to ensure that an NDP government's bills proceed will be the result of one Senator volunteering to serve as a primary liaison for the executive without seeking the title (and added pay/expense) that comes with the formal Leader of the Government post. Or it could be that government bills would be introduced and managed through some other system - which could involve agreement between the NDP and one or more Senators, or simply an institutional choice among Senators themselves. But the most likely outcome of the NDP's plan would be for the Senate to recognize its responsibility to facilitate the passage of government legislation - as has happened in the past when an opposition party has retained a majority in the Senate, and thus the theoretical ability to obstruct the elected government's agenda.

That said, it's fair enough to note that if all of the current Senators adopt the position that they're unwilling to work with the NDP (or indeed any government), then something would need to be done to move government legislation through the upper chamber. At that point, Mulcair would have two key options.

First, he could break at least part of the logjam with his own appointments in response to that radical change from the Senate itself. But note that any plan to appoint new senators in the near future would itself fall short of giving the NDP enough votes to actually pass legislation if the remaining Cons and Libs insist on obstructing.

Alternatively, he could highlight the obstruction of unelected Senators to rally support for abolition. And if unelected Con and Lib Senators alike consider themselves entitled to prevent an elected government from doing its job in numbers sufficient to prevent Mulcair from passing any legislation, then the case for constitutional change will become much more compelling even to the premiers who might have their own political reasons to reject it when that conflict doesn't yet exist.