Is American Democracy Fucked ?

So is the American political system completely dysfunctional.

I suppose the easy answer is to say they elected Trump so case closed, but of course it is much more complicated than that.

What advanced developed democracy cannot manage to keep it's government functioning.

The obvious answer should be “none” but of course we know that is incorrect.

Even countries that require months of negotiations after elections to form a coalition government do not let their governments shut down. They understand that government is more than just politics, that government is a good thing that provides vital services to the people. They have processes to allow the everyday work of government to continue while the politics is sorted out.

Take Canada for example. If a government cannot get its spending plan (in the form of an Appropriation Act) approved it is considered a loss of confidence in the government by the legislature and an election is called. However the Prime Minister and Cabinet (whom are all Members of the legislature) retain their positions and what are referred to as Governor Generals' Warrants are issued to fund the day to day operations of government. Government continues in a caretaker mode with no new policy initiatives undertaken until a new government is formed.

However the American system seems designed for deadlock with no confidence mechanism to break deadlocks by electing a new government. They have an executive with a Cabinet appointed and led by a President that is not responsible to the legislature and a bicameral legislative process, requiring the two legislative bodies and the President to agree for legislation, including government funding bills, to become law.

Currently the two legislative bodies are controlled by two opposing parties and the President who, while nominally the leader of one of the two main parties, is in reality a rogue actor with no political allegiance except to himself and no discernible political philosophy except for his own incoherent version of populism. This is a recipe for the chaos that is the current American political situation.

I can only suppose that when the founding fathers drafted the American Constitution they put a great deal of faith in the good will of the political participants to put the good of the American people ahead of petty politics.

Now let us look at the American electoral system.

We will start with Election Day when most (but not all as there are variations between states) Americans vote for federal, state and local officials. They could not design a better way to overwhelm voters leading them to take the path of least resistance and vote a “straight party ticket”. Just the mechanics of voting for that many officials (including many positions that should be public servants), without even considering the time and effort to consider local, state and federal issues and make meaningful voting decisions, must be completely overwhelming to voters.

Americans also elect prosecutors and judges. This raises the whole other issue of the politicization of the justice and judicial systems all the way up to a very politicized Supreme Court. This could be the subject of a treatise all by itself.

Looking at elections for federal office we have the absurd situation where the states set the rules and procedures for federal elections and these vary from state to state. So a federal election is not a consistent process with consistent rules for all Americans.

But the most egregious fact is that it is state politicians from the state's governing party that control the federal election process in that state, including the drawing of the electoral map with that infamous American institution of gerrymandering (to manipulate the boundaries of an electoral constituency so as to favour one party). This also includes the use of various voter suppression methods to reduce voting, usually of black and other minority voters.

Then we have the electoral college system which routinely elects Presidents that are not the choice of the majority of American voters. The system is somewhat designed to do that by giving smaller states relatively more electoral college votes but is made worse by the fact that in most states all of a state's electoral college votes go to the candidate with the most votes in that state. So if a presidential candidate gets 60% of a states votes he gets 100% of the states electoral college votes further skewing the results away from the popular vote.

Another concern is the primary system used to select the individual parties candidates, including the presidential candidates. Again we have an inconsistent system of primaries and caucuses that are different for each state. But perhaps the biggest problem is the timing of these primaries at different dates for each state. It makes for great drama and entertainment but the results of earlier primaries cannot help but affect the results of later primaries. There is a reason election results are not released before all the polls are closed – so that earlier voters do not influence later voters. The primary system seems designed to do just that.

A consistent federal election process overseen by an independent non-partisan agency (similar to Elections Canada) would go a long way to solving the structural problems with the American electoral system. The cultural problems of political corruption are another matter.

And we have not even looked at the role money plays in American elections which is a huge subject all by itself, especially the role of wealthy donors, PACs (Political Action Committees) and SuperPACs. No one in American government can possibly govern without constantly thinking about where the money is coming from for their next campaign. It is very hard to argue that that will not affect their decision making.

And it is almost impossible to do anything in the form of political financing reform as the Supreme Court has ruled that money equals free speech, effectively ruling that the wealthy have a greater right to free speech than ordinary citizens and a greater ability to promote their preferred candidates for election.

So with all of these fundamental problems how can American elections be fair. If American elections are not fair, they are not democratic, and if the electoral process is not democratic then the whole governing structure is not democratic.

American democracy is fucked.

Beliefs That Will Destroy The World

Christmas – Whose Holiday is it Anyway

It is time for the annual discussions about the “War on Christmas” and putting “Christ Back in Christmas”, but whose holiday is it anyway.

The Christians claim it as theirs because, well, it has “Christ” in the name and celebrates the birth of Jesus Christ. But yet they chose the timing to coincide with existing Pagan celebrations of the Winter Solstice, basically because they did not have a clue as to when Christ was actually born.

The Christians only have one high holy day during the season, Christmas. However, the capitalists have several, seemingly celebrated, at least in North America, by many more people (or should we call them consumers as the capitalists consider them) than Christmas. They have Black Friday, Cyber Monday, and Boxing Day, not to Mention Black Friday Week and Boxing Week. And then there are the December 25^th celebrations of the Patron Saint of Consumers, Santa Claus.

In Canada, the Christmas holiday season, to many. is more a celebration in line with the original Winter Solstice celebrations, a celebration of winter and snow and ice and winter activities.

Of course there are other than just Christian religious celebrations at this time, including the secular Festivus celebrations for fans of a certain television show.

In reality these winter holiday celebrations belong to all of us to celebrate however we choose and to call whatever we want.

On the Justice System, Presumption of Innocence & the Me Too Movement

Me Too Movement

The Me Too movement (or #MeToo movement), with many local and international alternatives, is a movement against sexual harassment and sexual assault.[1][2][3] #MeToo spread virally in October 2017 as a hashtag used on social media in an attempt to demonstrate the widespread prevalence of sexual assault and harassment, especially in the workplace.[4][5][6] It followed soon after the sexual misconduct allegations against Harvey Weinstein.[7][8] Tarana Burke, an American social activist and community organizer, began using the phrase "Me Too" as early as 2006, and the phrase was later popularized by American actress Alyssa Milano, on Twitter in 2017. Milano and Michael Baker encouraged victims of sexual harassment to tweet about it and "give people a sense of the magnitude of the problem".[9][10] This was met with success that included but was not limited to high-profile posts from several American celebrities, including Gwyneth Paltrow,[11] Ashley Judd,[12] Jennifer Lawrence,[13] and Uma Thurman.[14]

Source: Me Too movement - Wikipedia

MeToo on Twitter

Believe Women

"Believe women" is an American political slogan arising out of the Me Too movement.[1] It refers to the perceived necessity of accepting women's allegations of sexual harassment or sexual assault at face value. Sady Doyle, writing for Elle, argues that the phrase means "don’t assume women as a gender are especially deceptive or vindictive, and recognize that false allegations are less common than real ones."[1]

The slogan has been criticised for encouraging a presumption of guilt. Michelle Malkin, writing for The Daily Signal, suggests that it is a form of virtue signalling.[3]

Source: Believe women - Wikipedia

BelieveWomen on Twitter

While much of this movement has focused on the entertainment industry it is for all women and particularly those exploited by men in positions of authority over them. While it goes beyond criminal activity and extends to inappropriate and socially unacceptable behaviour much of it is focused on how the justice women treats women who are victims of sexual assault and exploitation.

The Big Five Principles of Our Justice System

So we will start by looking at what I see as the big five principles of our Justice System.

 

Blackstone's Ratio

In criminal law, Blackstone's ratio (also known as the Blackstone ratio or Blackstone's formulation) is the idea that:

It is better that ten guilty persons escape than that one innocent suffer.[1]

As expressed by the English jurist William Blackstone in his seminal work, Commentaries on the Laws of England, published in the 1760s.

Other commentators have echoed the principle; Benjamin Franklin stated it as, "it is better 100 guilty Persons should escape than that one innocent Person should suffer".[4]

Source: Blackstone's ratio - Wikipedia

Presumption of Innocence

The presumption of innocence is the principle that one is considered innocent unless proven guilty. It was traditionally expressed by the Latin maxim ei incumbit probatio qui dicit, non qui negat (“the burden of proof is on the one who declares, not on one who denies”).

In many states, presumption of innocence is a legal right of the accused in a criminal trial, and it is an international human right under the UN's Universal Declaration of Human Rights, Article 11. Under the presumption of innocence, the legal burden of proof is thus on the prosecution.

Source: Presumption of innocence - Wikipedia

The principle, now protected by section 11(d) of the Charter, that everyone accused of a crime is presumed to be innocent until the Crown has proven the accused’s guilt beyond a reasonable doubt to the satisfaction of a judge or jury.

Source: Presumption of innocence - Irwin Law

Beyond Reasonable Doubt

Reasonable doubt is a term used in jurisdiction of common law countries. Evidence that is beyond reasonable doubt is the standard of evidence required to validate a criminal conviction in most adversarial legal systems.[1]

Generally, prosecutors bear the burden of proof and are required to prove their version of events to this standard. This means that the proposition being presented by the prosecution must be proven to the extent that there could be no "reasonable doubt" in the mind of a "reasonable person" that the defendant is guilty. There can still be a doubt, but only to the extent that it would not affect a reasonable person's belief regarding whether or not the defendant is guilty.

Source: Reasonable doubt - Wikipedia

The evidence here must be so complete and convincing that any reasonable doubts as to the guilt of the accused are erased from the minds of the judge or jury.

The evidence here must be so complete and convincing that any reasonable doubts as to the guilt of the accused are erased from the minds of the judge or jury. This is the rigorous standard of proof that the Crown prosecutor is required to meet for each element of the offence in a criminal case.

Source: Beyond a reasonable doubt - Irwin Law

Jury Trials

A jury trial, or trial by jury, is a lawful proceeding in which a jury makes a decision or findings of fact. It is distinguished from a bench trial in which a judge or panel of judges makes all decisions.

Jury trials are used in a significant share of serious criminal cases in almost all common law lawful systems (Singapore, for example, is an exception), and juries or lay judges have been incorporated into the legal systems of many civil law countries for criminal cases.

Source: Jury trial - Wikipedia

Adversarial Justice System

The adversarial system or adversary system is a legal system used in the common law countries where two advocates represent their parties' case or position before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth and pass judgment accordingly.[1][2][3] It is in contrast to the inquisitorial system used in some civil law systems (i.e. those deriving from Roman law or the Napoleonic code) where a judge investigates the case.

The adversarial system is the two-sided structure under which criminal trial courts operate that puts the prosecution against the defense.

Source: Adversarial system - Wikipedia

The Question of Consent and Credibility

The Law of Consent in Sexual Assault

Canada has a broad definition of sexual assault. It includes all unwanted sexual activity, such as unwanted sexual grabbing, kissing, and fondling as well as rape.

Sexual activity is only legal when both parties consent. Consent is defined in Canada’s Criminal Code in s. 273.1(1), as the voluntary agreement to engage in the sexual activity in question. The law focuses on what the person was actually thinking and feeling at the time of the sexual activity. Sexual touching is only lawful if the person affirmatively communicated their consent, whether through words or conduct. Silence or passivity does not equal consent.

Source: The Law of Consent in Sexual Assault - LEAF

Further information:

Brochure: Respect Sexual Consent - Royal Canadian Mounted Police

No Means No: Understanding Consent to Sexual Activity (Public Legal Education and Information Service of New Brunswick)

Let us start by rephrasing Benjamin Franklin's version of the Blackstone ratio with a more specific reference.

"it is better 100 rapists should escape than that one innocent man should suffer"

It does not sound quite so enlightened when made more specific. But that is close to reality due to the difficulty obtaining convictions in sexual assault cases. These are cases where there are often no witnesses except the victim and the accused and while there might be forensic evidence this can only prove whether a sexual act took place but not the key factor in guilt which is whether or not there is consent. So we are left with a “he said she said” scenario.

And in the “he said she said” scenario the truth become a matter of credibility and in our society one's credibility has been tied to one's social status – the ”he's a respected member of the community, he couldn't be lying” factor. Not to mention the reluctance to even report assaults committed by people in positions of power over others because of potential repercussions and the fact one won't be believed anyway. With the Me Too Movement we have seen that particularly in the entertainment industry.

But it is even more insidious (and evil) in regards to the exploitation and sexual assault of children. We have seen numerous cases of what can only be called sex assault rings comprised of so-called respectable members of the community targeting vulnerable at risk children with perceived low credibility simply because these “respected” people knew they could get away with it. And they did for too many years just because of the credibility attached to their social status.

The social standing and supposed moral credibility of religious leaders left them immune from suspicion for years and even when their institutions (one in particular) were made aware of numerous instances of assaults they was swept under the rug because protecting the reputation of the institution was more important than justice or protection for the victims.

So how do we deal with assessing credibility in sexual assault cases where it is a case of believing the victim or the accused.

Should we abandon the concept of proof beyond a reasonable doubt and adopt the preponderance of evidence/balance of probabilities concept used in civil cases.

Preponderance of the evidence

Preponderance of the evidence, also known as balance of probabilities, is the standard required in most civil cases and in family court determinations solely involving money, such as child support under the Child Support Standards Act. It is also the burden of proof of which the defendant must prove affirmative defenses or mitigating circumstances in civil or criminal court. In civil court, aggravating circumstances also only have to be proven by a preponderance of the evidence, as opposed to beyond reasonable doubt (as they do in criminal court).

The standard is met if the proposition is more likely to be true than not true. The standard is satisfied if there is greater than fifty percent chance that the proposition is true. Lord Denning, in Miller v. Minister of Pensions,[12] described it simply as "more probable than not." Until 1970, this was also the standard used in juvenile court in the United States.[13]

Source: Burden of proof - Preponderance of the evidence (law) - Wikipedia

Balance of Probabilities

A standard of proof satisfying a judge or jury that the facts at issue probably occurred as alleged. Sometimes referred to as a preponderance of the evidence or a 51 percent likelihood of occurrence.

Source: Balance of probabilities - Irwin Law

I would suggest we do not want to abandon the principle of proving guilt beyond a reasonable doubt and create a potential new problem of increased unwarranted convictions.

Rather I would suggest instead that judges instructions to juries make it clear that the standard for believing accusers and witnesses is not certainty, which is impossible to have, but rather reasonable belief in the credibility of the witness. In the words of the Me Too Movement judges must give jurors the right to Believe The Women if they reasonably believe them to be credible. The ultimate safeguard being that all 12 jurors must concur for a conviction to occur.

Broader Problems with the Justice System

There are are broader problems with our Justice System than how it deals with sexual offences.

The fist thing we should note is that we did not choose our Justice System. There was no process of examination of options or analysis undertaken . We simply inherited it, like our system of constitutional monarchy and parliamentary government, from the British. That is not necessarily a bad thing.

But our adversarial Justice System does have its problems.

It has been described as a matter of story telling with whoever tells the best story being the winner. In modern day story telling, which is done most often through TV and movies, the best story telling often involves who employs the best actors and the most effective special effects. In the case of the Justice System we are talking about the most expensive lawyers, investigators, and expert witnesses. No matter what the facts are the quality of the legal defence can be the biggest factor in a court's decision.

As well, all the facts are not necessarily available to the court for various legal reasons. If the state uses illegal means to gather evidence it is not available to the court. This is done to ensure the game is played fairly. This is, of course, a difficult matter and peoples' legal and constitutional rights are hardly “technicalities”. But would it not be better to punish those involved in illegal activity separately rather than having courts make decisions without all the facts.

Money can be the biggest factor in the outcome of a case. If you are poor, depending on legal aid or public defenders, you are at a disadvantage against the resources of the state. On the other hand if you are extremely wealthy your legal resources are much greater than those of the state.

There are other options than the adversarial system.

Inquisitorial system

An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defense. Inquisitorial systems are used primarily in countries with civil legal systems as opposed to common law systems. Countries using common law, including the United States, may use an inquisitorial system for summary hearings in the case of misdemeanors such as minor traffic violations. The distinction between an adversarial and inquisitorial system is theoretically unrelated to the distinction between a civil legal and common law system. Some legal scholars consider inquisitorial misleading, and prefer the word nonadversarial.[1] The function is often vested in the office of the public procurator, as in China, Japan, Germany, and Scotland.

Source: Inquisitorial system - Wikipedia

The main criticism of such system is that you have one institution, the court, acting as prosecutor, defence, judge and jury. It is a system that would require a huge degree of confidence in the impartiality of the state for it to have credibility with the public.

My own sense is that we would be better off reforming our current system and I would start by looking at sentencing.

Sentencing

The first thing we need to look at are minimum sentences. Zero tolerance and minimum sentences are both concepts based on the idea that circumstances do not matter and no one can be trusted to exercise discretion.

Background on Minimum Sentences

Cleaning up the mandatory minimums mess (Policy Options)

Mandatory-minimum sentencing rules unravelling into patchwork (The Globe and Mail)

Federal government urged to rein in mandatory minimum sentences (The Toronto Star)

Sentencing Based on Accountability, Restitution and Rehabilitation

When it comes to sentencing, one thing the adversarial nature of our Justice System does is create an inclination for sentencing based on punishment and revenge rather than accountability, restitution and rehabilitation.

But there is a sentencing model that does just that, Restorative Justice, using processes such as Sentencing Circles to bring offenders, victims and communities together.

Restorative Justice

Restorative justice is an approach to justice in which the response to a crime is to organize a mediation between the victim and the offender, and sometimes with representatives of a wider community as well. The goal is to negotiate for a resolution to the satisfaction of all participants. This may include a restitution to be given from the offender to the victim, or to take steps to prevent the offender from causing future harm.

A restorative justice program aims to get offenders to take responsibility for their actions, to understand the harm they have caused, to give them an opportunity to redeem themselves and to discourage them from causing further harm. For victims, its goal is to give them an active role in the process.[1] Restorative justice is founded on an alternative theory to the traditional methods of justice, which often focus on retribution. However, restorative justice programs can complement traditional methods.

Academic assessment of restorative justice is positive. Most studies suggest it makes offenders less likely to reoffend. A 2007 study also found that it had the highest rate of victim satisfaction and offender accountability of any method of justice.[2] Its use has seen worldwide growth since the 1990s.[3] Restorative justice inspired and is part of the wider study of restorative practices.

Source: Restorative justice - Wikipedia

Restorative justice

An approach to justice issues that focuses on reconciliation and repair of harm as opposed to conventional retributive approaches. In R. v. Gladue, [1999] 1 S.C.R. 688, Cory and Iacobucci JJ. wrote: “In general terms, restorative justice may be described as an approach to remedying crime in which it is understood that all things are interrelated and that crime disrupts the harmony which existed prior to its occurrence, or at least which it is felt should exist. The appropriateness of a particular sanction is largely determined by the needs of the victims, and the community, as well as the offender. The focus is on the human beings closely affected by the crime” (at 726).

Source: Restorative justice - Irwin Law

Sentencing circles

Sentencing circles (sometimes called peacemaking circles) use traditional circle ritual and structure to involve all interested parties. Sentencing circles typically employ a procedure that includes: (1) application by the offender; (2) a healing circle for the victim; (3) a healing circle for the offender; (4) a sentencing circle; and (5) follow-up circles to monitor progress.

Restorative justice - Sentencing circles - Wikipedia

Circle sentencing

A method of sentencing sometimes used with Aboriginal offenders (and occasionally with other offenders). Typically, the judge, lawyers, police, offender and parents, victim, and other community members and professionals sit in a circle. Everyone has an opportunity to express their feelings about the offence and offender, and their views about an appropriate sentence. If a consensus emerges about an appropriate sentence, the judge will usually impose this sentence, though the judge is not obliged to do so. A body of jurisprudence deals with the appropriateness of circle sentencing for adults, and section 41 of the YCJA recognizes the judicially convened “conference,” which includes the possibility of circle sentencing.

Source: Circle sentencing - Irwin Law

Postscript

Outside of the Justice System we can believe as we choose, no “beyond a reasonable doubt” is required for individuals to use their own judgment as to their own beliefs about individuals' guilt.

As well, individuals, employers, organizations, etc. are completely entitled to hold people to higher standards than whether they committed a crime or not. In fact they should. Criminal responsibility is a pretty low standard, especially for people in positions of public trust or control over others lives, whether it be in the workplace or elsewhere.

On Democracy

What a better way to restart The Fifth Column than by a treatise on how to make our democracy actually democratic. Hopefully this will be the first posting in a newly regenerated Fifth Column.

I write this at a time when there are so many examples of democracy failing us from the “republic” to the south to our own provincial government in Ontario. Much of the emphasis has been on our First Past The Post (aka Single Member Plurality) electoral system but the problem goes much deeper than that.

Democracy Defined

But what is “democracy”. Wikipedia actually has a pretty decent definition here:

Democracy - Wikipedia

Democracy (Greek: δημοκρατία dēmokratía, literally "rule by people"), in modern usage, has three senses—all for a system of government where the citizens exercise power by voting. In a direct democracy, the citizens as a whole form a governing body and vote directly on each issue. In a representative democracy the citizens elect representatives from among themselves. These representatives meet to form a governing body, such as a legislature. In a constitutional democracy the powers of the majority are exercised within the framework of a representative democracy, but the constitution limits the majority and protects the minority, usually through the enjoyment by all of certain individual rights, e.g. freedom of speech, or freedom of association.

Direct Democracy

Let us first dismiss the idea of a direct democracy, not just because it can too easily become the tyranny of the majority but because modern government is too complex for us to all have the expertise and knowledge required to govern our societies while maintaining our normal lives. That is to say governing has become a full time job if one wants to make rational informed decisions. Thus we have invented representative democracy where we chose from among ourselves those we trust to have the wisdom to make judgments in our best interests, usually those are people that share our philosophical approach to society. I fear, in this day and age direct democracy, such as a system of online voting on individual issues (similar to the “initiatives” used a great deal in the aforementioned republic to the south), would turn voting into shopping where the best marketing campaign wins.

Representative Democracy

Choosing representatives that are accountable to us and represent the views of all of the voters, not just the majority, to meet and debate and make laws is what distinguishes democracy from electing a dictator every four years, which is what the present state of our democracy appears to be moving towards.

Public Participation

So we have our first big problem. Democracy requires the participation of all the people to work. Just looking at voting statistics, never mind greater participation in the political process such as choosing candidates and influencing political parties policies. We have barely over a majority of citizens participating. Adding the fact that the wealthy and privileged have a greater participation rate, not to mention greater political influence, than the poor and vulnerable in our society and we can see that our democracy is not truly representative.

So how do we increase the participation of the public in the political process. We have to look first at what is suppressing it, and to that I see a conspiracy of sorts, not a conspiracy of secret meetings and plots but a conspiracy of shared interests on behalf of the ruling class that control our media that influences public opinion. There is a concerted effort to turn government and politicians into an evil them and taxes into our money that they take from us. There is a concerted effort to distance the people from their government and turn it into the enemy. Ironically that allows the “ruling classes” to take control of it and make that claim come true while discouraging the general population from becoming engaged and involved in evil politics.

Government is the People

The truth is quite simple. Government is how the people as a whole make collective decisions for the common good and taxes are how we spend our money collectively for the common good. It is your government and your money. Don't let them convince you there is something evil about it. It is your right and your responsibility to participate.

First Past The Post (aka Single Member Plurality) Electoral System

The other big factor discouraging public participation is that many feel that with our First Past The Post (aka Single Member Plurality) electoral system their votes do not count, that they do not help determine the composition of the legislature if they do not vote for the winning candidate, or they feel forced to vote strategically against the candidate (or party) they least favour rather than for the candidate (or party) they prefer.

Political Parties

So let us talk about political parties. Political parties have become the way that we elect our representatives, at least at the federal and provincial level. There have been exceptions of independent MPs or MPPs, but in most of those cases they have been individuals who were elected as a member of a party and then left it.

Political parties allow individuals with similar ideas to come together to select candidates to seek election on policies agreed to by the party members. They also allow elected members with similar ideas and policies to caucus and work together in the legislature. And not of least importance they finance election campaigns so candidates do not have to be wealthy in order to run for office.

Political parties are what makes modern democracy work but in many ways they are it's biggest problem.

Back in my day, when I was politically active, political parties were run by party activists, the ones who attended meetings, canvassed during elections, called voters and put up signs. These were the people that voted for the parties policies, chose the candidates and elected the leaders.

Nowadays political parties have decided that it is expedient to use nomination meetings and leadership votes as a way to recruit new members. Whoever can recruit the most new members tends to win nomination votes and leadership candidates that can sign up the most new members tend to win leadership contests. It is no longer long term members choosing party candidates and leaders but new members that tend to make the difference when it comes to these decisions. And during election campaigns the policy is not taken from the party policy book but dictated by the leader.

The Loss of Responsible Government and the Cult of the Leader

We are supposed to be a Westminster style Parliamentary government with responsible government. Our Prime Ministers and Cabinets are supposed to be responsible to and accountable to the elected legislatures and can only hold power when they retain the confidence of the elected MPs (or MPPs) and they must answer to them with in the legislature, through such means (but not exclusively) as a daily question period.

However the power of not only individual MPs but also of Cabinet has been decreasing ever since Prime Minister Pierre Trudeau called MPs nobodies off of Parliament Hill and started centralizing power in the Prime Minister's Office. This practice was extended by Prime Minister Stephen Harper and taken to new heights by Ontario Premier Doug Ford, whose caucus and Cabinet seems extremely reluctant to put any form of common sense restraint on his exercise of power.

So we have an Ontario Premier who is only in power because of the votes of new members signed up by the anti-abortion/anti-sex ed lobby to support their pet candidate who transferred her support to Ford which tipped the balance of support to him. He did not originally have the support of the majority of the Tory caucus or a majority of long term Ontario PC members. Yet now he seems to rule by decree with neither his cabinet nor caucus willing to exercise their constitutional role of actually governing.

The Effect of the First Past The Post (aka Single Member Plurality) Electoral System and The Power of Party Leaders

But this, of course is only an extreme case. The more routine situation is for a party to gain a majority of 60% of the seats of the legislature with 40% of the total votes. It needs to be noted these are votes cast for individual members in different constituencies. However most voters are voting for the party, if not the leader, rather than the individual MP or MPP.

This leads to one party with 100% of the power and with that 100% of the power more likely than not to be exercised by the leader, Prime Minister or Premier.

It is not only the sense of fealty that individual MPs (or MPPs) feel to the leader that gives him power but party leaders' powers start with a veto over who can be nominated as a candidate and extend to allotment of question period time and committee memberships and critics roles, and paid positions as Cabinet Ministers and Parliamentary Secretaries for Prime Ministers and Premiers, not to mention caucus membership. No wonder few MPs or MPPs go against the leader.

Electoral Reform, Mixed Member Proportional (MPP) and the Power of Parties and Leaders.

There is a way to eliminate the absolute power of parties elected with a minority of votes and

the absolute power of their leaders while electing a legislature that reflects the will of the voters. It is called Mixed Member Proportional or MMP.

Wikipedia actually has a pretty decent definition here:

Mixed-member proportional representation - Wikipedia

Mixed-member proportional (MMP) representation is a mixed electoral system in which voters get two votes: one to decide the representative for their single-seat constituency, and one for a political party. Seats in the legislature are filled firstly by the successful constituency candidates, and secondly, by party candidates based on the percentage of nationwide or region-wide votes that each party received.

Canada is not a two-party state. We have a wider variety of political views than that and a reasonable number of political parties expressing them. The main effect of a proportional representation system is that the make-up of the legislature actually reflects views of the voters and no party gains a majority of the seats with a minority of votes and and no leader has absolute power. The government must actually be responsible and accountable to the legislature. Critics say this is inefficient and a bad thing. But if efficiency was our goal for government we would not be looking at a democracy at all.

The fact that a government must be responsible to legislators from other parties means its own caucus members will expect the party and leader to be responsible to them also. Indeed there is not one governing party but a governing legislature as it should be in a democracy. Practice meets theory.

How would this work in practice. Federally I would propose a Parliament of 300 members elected as they are now from individual constituencies using the Single Member Plurality (SMP) system and 100 members allocated proportionally so the make-up of the legislature reflects the voters party vote preferences. Each voter would have a vote for an MP representing their constituency and a vote indicating their party preference.

The proportional representatives would come from party lists known to voters ahead of time. To ensure greater democratic representation voters could be given the option to rate the names on their party's list preferentially and that would be used to select the priority in which the proportional members are selected from the lists.

Both constituency candidates and party list candidates must be chosen by a democratic process and not just selected by the party leader, nor should the leader have an undemocratic veto over the candidates chosen by this democratic process.

To those concerned about the increased size of the House of Commons and greater number of politicians I would also eliminate the Senate so that overall their would be fewer federal politicians than there are now.

Fringe Parties and Proportional Representation

One of the criticisms of proportional representation is that it empowers fringe parties, either of the frivolous kind or more dangerously those espousing bigotry and hate, providing them with a voice in the House of Commons (or provincial legislatures).

The Canadian Charter of Rights and Freedoms provides that its provisions are not absolute

1.The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 

 

The same principle can be applied to the electoral system and the concept of proportional representation. We can build provisions into the system to prevent the empowerment of frivolous or hateful fringe parties. The most likely provision being a requirement that parties receive at least 5% of the popular vote before they receive representation under the proportional representation portion of Mixed Member Proportional (MMP).

Parliamentary Reforms

If we want to make party leaders, and Prime Ministers and Premiers, accountable to Parliament and the Legislature we have to decrease the powers party leaders have over individual MPs and MPPs. We can start with eliminating their control over question period access and committee appointments by making them based on seniority (but still distributed by party according to percentage of members that would now be based on popular vote) and having that administered by the Clerks at the Table. Party critics appointments should be determined by a democratic process within caucus, not simply by the leader.

Also only a vote of caucus should be able to expel members from a party caucus, not the dictatorial power of a party leader.

And most importantly party leaders (including Prime Ministers and Premiers) should not be determined in a dubious process by a small number of newly recruited party members but chosen by the people's elected representatives, the members of their Parliamentary or Legislative caucus and be accountable to them. With this process the Parliamentary and government leaders are not determined till after the election by the people's chosen representatives. This puts more emphasis on the people we actually vote for, no longer leaving them as a second thought as we vote according to party leaders. While this will perhaps require a great deal of political will it puts the representative and responsible back in our democratic system.

And of course Prime Ministers and Premiers (and their Cabinets) must also retain the confidence of a majority of members of The House of Commons or provincial legislature.

The House of Commons (and legislatures) should also establish a review of all parliamentary rules aimed at ensuring the role of the democratically elected members are strengthened and enhanced.

These proposed electoral and Parliamentary reforms are designed to ensure that we have a truly representative democracy and not simply a process to elect a dictator every four years.

Municipal Elections and Preferential (aka Ranked Ballot) Voting

Some may have noticed that I have not yet written about preferential or ranked ballot voting where voters list their choices in order of preference, 1st, 2nd, 3rd choice etc. The main advantage of such a system is that it prevents the election of the candidate disliked by the most voters from being elected, as often happens with the First Past The Post system. But it depends on voters second and third choices to elect the winner and can, and likely will, result in an even greater discrepancy between the number of MPs or MPPs elected per party and the popular vote (according to first choices) received by each party.

This of course is why it was Justin Trudeau's choice for electoral reform. Liberals see themselves as a centrist party and everybody's second choice. They believe preferential voting would likely ensure them easy victory in every election and even more dominance in the House of Commons and power for their leader. When it became clear that federal electoral reform was not likely to take that form they quickly abandoned their promise of a new electoral system for the next election.

But there is a place for preferential voting, and that is where parties are not involved, as in most municipal elections in this country.

Without parties competing municipal elections tend to be about the popularity of the incumbent. The other thing about municipal politics is that a large part of the job of a councillor is considered to be about participating in community events and being out and about in the community meeting constituents. In other words, incumbents are paid to campaign for the next election as part of their job.

Defeating an incumbent is very difficult. Even when most voters want to throw out the incumbent their votes are usually divided among several candidates. Preferential ballots allow in effect, holding simultaneous run-off elections until one challenger is left competing against the incumbent thus somewhat levelling the playing field where incumbents have so many advantages.

So I would certainly endorse preferential or ranked ballot voting for municipal elections.