As more government bills move to the Senate, the push for independent senators to sponsor them grows.  If things were normal in the Senate, it would be a member of the government's caucus who did this job but there are government caucus members.  And when it comes to bills introduced in the Senate by the government, it would normally be up to the Government Leader in the Senate to be their sponsor as a member of cabinet who could be the point person on accountability.  Well, that doesn't happen here either.

While on paper, Senator Peter Harder remains the Government Leader in the Senate (though he may style himself otherwise), he is not a member of Cabinet (despite still getting support from the Privy Council Office as a cabinet minister would, and despite attending Cabinet committee meetings "as required"), and he has eschewed the task of doing the sponsorship of government bills with the exception of the first couple.  It's a curious sort of legal fiction that is put into place in order to maintain the notion that the Senate is to be more independent, as though dismantling some of the structures around Responsible Government as it can be exercised in the chamber is the way to go about it.  What it ends up doing, however, is creating more confusion around how accountability is supposed to flow.

The notion that independent senators are supposed to sponsor government bills has immediately opened them up to criticism that they're not really independents that, as (largely) Trudeau appointees, they are just crypto-Liberals doing the bidding of the man who appointed them, much as was the accusation of nominally partisan senators for the bulk of our post-Confederation history.  Those independent senators have immediately responded by saying that just because they're sponsoring the bill it doesn't mean that they're wedded to it, that some of them come into it looking to amend it right away, and generally with the notion that they're just there to shepherd the bill though the process.  But it's a position that I find a little troubling because it doesn't sound a lot like actual sponsorship of a bill.  In some cases, the very sponsors sound more like chief critics of a bill, which really confuses the debate, but more than that, it confuses any sense of accountability.

Where does accountability flow for a bill in the Senate if not with the government?  There is nobody from Cabinet who can answer on behalf of the bill, which is a pretty important consideration.  Government bills come from Cabinet as a whole Cabinet solidarity is a Thing and an important Thing in our system.  As I have repeatedly pointed out with the current drama over Bill Morneau and the introduction of Bill C-27 on federally regulated pensions, sponsorship of a bill doesn't mean that the minister as an individual is doing it out of personal interest, but rather because they have to answer on behalf of the department that it affects, and if they were shuffled out and a new minister shuffled into that same portfolio, they would pick up where the previous minister left off, because the bill is reflective of the will of Cabinet as a whole, and the minister's job is to answer for the department.

When it comes to the Senate, there remains the important consideration that someone can answer on behalf of Cabinet on a bill to ensure there is a flow of accountability.  Harder is supposed to be that someone, but has eschewed that responsibility.  Ministers still appear before committee, but it's limited to an hour or two, and Cabinet otherwise remains outside of the debate, and this is especially the case for government bills that are introduced in the Upper Chamber.  With no one from Cabinet there to shepherd the bill, and leaving that instead to an independent senator who is supposed to be free of the influence of the government, it means that the accountability gap grows, and this should be concerning because the role of Parliament, of which the Senate is a component, is to hold government to account.  It could also be argued that budget bill should also be sponsored in the Senate by the Government Leader rather than just a member of the government caucus because it deals with the requests for funds, vital for the continued operation of government.  But that's not what happens anymore.

With this in mind, it bears asking why Harder and his office need their $1.5 million budget, and numerous staff, when they're neither managing a caucus, nor doing the legislative groundwork in the chamber things that previous Government Leaders would do on the same allocation, which Harder demanded.  Plenty of senators are asking what this money is for, and I find myself curious as well.  It also makes one wonder if Harder is shirking the duties that he should be fulfilling in the role as Government Leader, regardless of whether or not he styles himself that way.  But you can't both represent the government and be independent (or non-aligned, as he is listed on the Senate's standings) it's just like being half-pregnant.  And that's partly why the demand for independent senators to sponsor government bills is perverse.

There would be no actual conflict for Trudeau to give the Senate more independence while still maintaining the proper roles of having a Government Leader that is in Cabinet and which acts as the conduit for accountability in fact, it would mean more independence for those senators because they're not being co-opted to sponsor bills on behalf of the government.  The Leader of the Government in the Senate is not the leader of the Senate, and people shouldn't be confusing the two something that Trudeau gives the impression of with this particular fiction that is being perpetuated.  We can have both a more independent Senate and proper lines of accountability so what is keeping us from doing so?

For weeks, we've been enduring the constant faux-outrage over Bill Morneau's assets, and the escalating ridiculousness of the myriad of supposed offences that he has committed.  That the Conservatives escalated things to the point of demanding Morneau's resignation last week while not able to provide much in the way of concrete examples as to why he should shouldn't come as a surprise, because demands for resignations are rote and part of the outrage script.  And when pressed for a reason, any reason, why Morneau should exit cabinet, the excuses returned to his mandate letter.

You might recall that in his high-minded (and indeed, sanctimonious) manner, Trudeau declared that his ministers were going to ride that white horse of transparency and accountability, and they were going to mean it by observing the highest ethical standards in everything they did.

"As noted in the [Ethical] Guidelines, you must uphold the highest standards of honesty and impartiality, and both the performance of your official duties and the arrangement of your private affairs should bear the closest public scrutiny.  This is an obligation that is not fully discharged by simply acting within the law," Trudeau wrote.

In other words, you must not only be seen to be avoiding a conflict of interest, but you might also avoid the appearance of such a conflict.

As with so many of Trudeau's well-intentioned but ultimately foolish decisions, this one opened the door to the opposition and critics in the media to abuse the provision to attack them.  He handed the cudgel to his enemies and invited them to hit him about the face and neck with it.  It was, ultimately, a self-inflicted wound.

We saw it play out for months with the stories over supposed "cash-for-access" fundraisers, which, in truth, were not actually cash-for-access in the abusive way that we had seen in Ontario, where ministers went to people who were trying to get an audience with them and shook them down for tens of thousands of dollars at fundraisers.  None of that happened at the federal level, but a combination of mediocre reporting, combined with mendacious framing devices, gave this appearance that the government was for sale for $1500 increments.  It's laughable on the face of it, especially when compared to the free-for-all of political fundraising in most of the provinces, and even more so when compared to the United States, but damn it, the Globe and Mail needed a scandal to push.

And as with the requirement that even the appearance of impropriety be avoided, the Globe and the opposition each lined up weak evidence in such a manner as to make it look like there was some shady business going on.  And then, as with Morneau now, the allegations were all ridiculous on the face of it someone who wanted approval for a bank attended a fundraiser and it was approved!  (Never mind that it's a decision of the Superintendent of Financial Institutions, the timing was too suspicious).  Or how a Chinese businessman with canola interests attended a fundraiser, and lo and behold, when Trudeau went to China, he got the issue around canola imports resolved.  Obviously a quid pro quo err, except that it was the same position that every Canadian farmer was hoping for because the Chinese demands around restricting canola imports were bogus, and it would only have been a scandal if Trudeau had acceded to the Chinese demands.

But throughout that situation, as with Moreau now, we kept hearing the same thing that "this doesn't pass the smell test."  Never mind that in any of the cases, the facts couldn't even support the notion that it didn't pass the smell test, which is what Trudeau kept asserting when he answered questions about it.  Not that it mattered, because they kept insisting that it didn't avoid the "appearance" of a conflict, and hence, there was a problem.

And this notion of appearances is really where this all rests that Trudeau gave a direction like that was in hindsight fairly boneheaded because anyone can make anything up and say "smell test" or "appearance," and you have an attack that will get traction or print.  And it's so easy to do, as we've seen repeatedly with the current Morneau faux-outrages, where mind-numbing headlines would appear day after day, about how Morneau was somehow in a conflict with the Bombardier loan because Morneau Shepell had a contract with them, or how he was somehow in a conflict because the Bank of Canada contracted their services (never mind that the Bank is pretty fierce about protecting their independence), or any of the other departments or agencies.  Taking the cake was the manufactured notion that he needed to get the clearance of the Ethics Commissioner to table Bill C-27, never that doing so would violate both cabinet confidence and parliamentary privilege.  The fact that the accusations were utterly ridiculous didn't matter all they needed to was say that there was an "appearance" of conflict.

So this is where we are now, and we're likely to keep seeing these kinds of stories once the Morneau outrage finally dies down and we learn that the only actual sin that he committed was forgetting to mention that the villa he disclosed was in a holding company, for which he paid the $200 fine.  Trudeau has made a number of ill-thought-out promises, whether it was around electoral reform, making ministers' offices open to Access to Information requests, or these demands around ethical guidelines.  And because they're his own poor promises coming around to bite him, he's been especially inept at creating any kind of communications strategy to deal with them.  If anything, this may be his Achilles heel, more than any one action his government has taken.  But it also means that we'll be dealing with this same pattern of faux scandal, disingenuous examination, and certain media outlets playing along in order to try and score a hit, for the remaining years of this parliament.  And all the while, the practice of accountability remains occluded for the sake of "appearances."  What a way to run a parliament.

Photo Credit: J.J. McCullough Loonie Politics

Twice a year, shortly before Parliament rises for their summer or winter breaks, the push to pass as many bills as possible inevitably happens, and every single time, the crunch hits the Senate in a particularly hard way because the Commons tends to expect the Senate to pass those bills before they too rise, which is often a week or so later.  This year is no different.

What is different this time, however, is the way in which the legislative agenda is being managed in the Senate.  Over the past several weeks, the number of bills on the Senate's Order Paper has been piling up, in part because the Government Leader in the Senate err, "government representative," Senator Peter Harder, has by all accounts not been engaged in negotiation with the other Senate caucuses in order to work out timelines to get them passed.  This is going to be further complicated by the fact that one of these government bills is the bill to legalize recreational cannabis, and the bill's sponsor wants a special process to consider that bill, which could further slow it down if they get into a protracted debate around that very question.

What is particularly of concern, however, is the question of amendments in this time crunch.  The Commons is slated to rise on Friday, December 15^th, but as is custom, it will likely rise on the Wednesday, shortly after the last caucus meeting of the year (which also ensures that all MPs are in town for their caucus Christmas parties).  That means that if there are going to be any amendments to go back to the Commons, they need to be basically passed and back to the Commons within a week.  There are about eight or nine government bills currently on the Senate's Order Paper, but some of them still haven't passed second reading.  And if Harder thinks that he can get them all through the process with the requisite level of thoughtful scrutiny that he is confident that the Senate can provide, that's going to be a tough order even with the Senate sitting extra days.

There is the added wrench in the works in that the committees were all just reconstituted as well, which is a process that basically shut them down for a week, which further delayed things.  And while they're still getting back up and running with new chairs and new memberships, my sources have told me that Harder's office seemed to have been oblivious to this particular complication in their plans to move legislation forward, which once again gives rise to the question of what the staff that he's accumulated with his $1.5 million budget are actually doing.  Questions could be raised about the kind of procedural advice that they're offering him given that last week he attempted to move a pre-study motion on the budget implementation bill.  The problem?  That the point of pre-study in the Senate is to get amendments to the Commons while they are still engaged in their own committee study, so that those amendments can be incorporated at that stage.  When Harder moved for the Senate to engage in pre-study, the bill had already moved to report stage in the Commons, meaning that the time to introduce amendments had passed, making pre-study redundant.  Senate Liberal leader Joseph Day pointed this out, and Harder's motion was defeated, which points to the fact that there is a lack of understanding about how things are supposed to work.

And let's make no mistake there are some complications to these bills going to committee, such as the fact that it's been pointed out that the Statistics Act changes being put through never got the mandatory parliamentary review as to whether the 2005-era changes to consent around release of personal data in 92-years' time was still workable.  Or the fact that there are omnibus bills now in the Senate the budget implementation bill, the Transport Modernization Act and the cannabis bill all of which may have demands to be split apart.  Oh, and another complicating factor to the agenda is the fact that the newly nominated Lobbying and Official Languages Commissioners will need to also be vetted by the Senate next week, which will take up even more time.

And if there are amendments?  Well, then we can expect the usual song and dance about how nobody wants to inconvenience the Commons once they rise, and this happens as we approach every break.  Senators are threatened that if they send amendments back after the Commons has risen for the break, it will cost hundreds of thousands of dollars to recall the Commons to deal with them, and isn't it terrible that they would be so cavalier with taxpayers' money (as though MPs doing their jobs in Ottawa a little longer than they expected is some kind of a scandal).

But this is where the rhetoric around the new "independent" Senate starts to break down.  For as much as Justin Trudeau, and even Senator Harder, proclaim that they want to give the Senate the time and space to be thoughtful and deliberate in their study of legislation, when it comes close to the end of a sitting, suddenly that sentiment turns to the demand that the Senate become a rubber stamp, churning through bills as quickly as possible so that everything can get royal assent before the break.  We saw this with the budget implementation bill in June, where Trudeau and his House Leader, Bardish Chagger, suddenly decided that the Senate isn't allowed to amend money bills (which is false), and that doing so would violate the "rights and privileges" of the House of Commons (but they have thus far refused to spell out which rights or privileges they would be violating, even when directly asked).  The Senate is only thoughtful and independent until it becomes a problem, and then they are supposed to bow down to the will of the Commons unquestioningly.  We get that you want to go home for Christmas, but you did promise that the Senate was supposed to be more independent.  It's time to pick a lane.

Photo Credit: Ottawa Tourism