Cabinet ministers’ “systematic lobbying” of Senators on government legislation could undermine the independence of the Red Chamber and it’s up to each Senator to ensure they maintain independence in their voting decisions, says a Liberal Senator from Quebec.
“You have to use that vote for the purpose for which you’re called in the Senate, which is to exercise, advise, and consent on the basis of an independent point of view and examination of the bills or measures that are put to debate,” Sen. Serge Joyal (Kennebec, Que.) told The Hill Times last week.
“We’re not [lobbied] because, as my mother would say, we’re blond, have curly hair, and blue eyes. … We’re there because we have a vote. That’s it. All the rest are secondary considerations.”
Sen. Joyal defined “systematic lobbying” by cabinet ministers as “a minister getting in touch in-person, in his or her office, or over the phone, with all Senators who sit on a committee studying a bill or debating an issue, where the minister does not satisfy himself or herself with her or his testimony at committee, but wants to persuade Senators on a one-on-one basis.”
He excluded from this definition briefings provided to Senators who agree to sponsor government legislation or provided to official opposition Senators—which are the Conservatives, who generally oppose the Liberal government’s legislation.
Sen. Joyal said if a Senator is a forceful opponent of a particular piece of legislation, and the minister behind the bill lobbies the same Senator to get his or her vote, that Senator could get into a “give and take” discussion and be “in a negotiating position.” He said this situation could affect how the Senator in question casts his or her vote.
“In my opinion, it might jeopardize the independence of the Senator,” said Sen. Joyal, a renowned constitutional expert. “It puts the Senators in a position of vulnerable influence because the ministers hold the purse and the decisions of the cabinet.”
Sen. Joyal said it’s not unusual for cabinet ministers to use all parliamentary tools at their disposal, including lobbying individual Senators, to get their legislation passed in the Senate. He said it’s up to each Senator to ensure their independence isn’t compromised.
“It’s for everybody to determine the line that has to be maintained to make sure the independence of the two institutions is preserved,” said Sen. Joyal. “Each and every Senator should be very conscious of that.”
The issue of Senate independence became a matter of public debate recently after Government House Leader Bardish Chagger (Waterloo, Ont.), Finance Minister Bill Morneau (Toronto Centre, Ont.), and several Liberal MPs went to the Upper Chamber and talked to some Senators right before the vote on the government’s budget bill, C-44, on the evening of Tuesday, June 20. In the vote, Senators amended the budget bill by approving a Conservative amendment to disallow automatic increases to the excise duties on alcohol every year.
The two cabinet ministers and Liberal MPs Wayne Easter (Malpeque, P.E.I.), Alexandra Mendès (Brossard-Saint-Lambert, Que.), and Rob Oliphant (Don Valley West, Ont.) lobbied Senators not to vote in support of this amendment, but were unsuccessful. The amendment was passed by a vote of 46-32. In addition to all Conservative Senators present in the Chamber, nine Liberal and three Independent Senators voted in favour of this amendment.
Prime Minister Justin Trudeau (Papineau, Que.) said in a press conference before the Senate vote that unelected Senators do not have the authority to amend budget bills. Senators disagreed with the prime minister and the House of Commons’ position that they can’t amend money bills, and sent a message to the House saying that the Constitution allows the Red Chamber to do that.
Later that week, after the House refused to accept the Senate’s amendments to the budget bill, the Senate ended up passing Bill C-44 without them.
Sen. Joyal declined to say if he would describe the lobbying efforts by the government and prime minister’s public statement on the budget bill as “systematic lobbying.”
“I cannot answer yes or no to that question,” said Sen. Joyal, though he said it’s clear the government exerted all of the pressure it could to influence the Senate on the budget bill.
Meanwhile, Conservative Sen. Leo Housakos (Wellington, Que.), in an interview with The Hill Times, raised questions on whether it was appropriate for cabinet ministers and Liberal MPs to lobby Senators inside and outside the Chamber before the vote. He said in his eight and a half years in the Senate, he had not seen anything like that.
“I saw at least two cabinet ministers and at least two or three MPs that I recognize that were there talking, and obviously I have never seen them showing up before,” said Sen. Housakos. “So, I suspect they weren’t there asking what time they’ll meet for dinner, given the importance of that vote.”
He jokingly asked Mr. Easter if he was interested in applying to become a Senator.
“I was just surprised to see him there. I expressed my surprise and [asked him] why he has this profound interest? Maybe a lot of these MPs want to send in their applications in the new round of applications [to become Senators],” said Sen. Housakos.
In the interview, he wondered how serious Mr. Trudeau was in his public statements that he wants to make the Senate an independent, non-partisan Chamber.
“This is a government that promised a new era and new age of openness and parliamentary freedom,” Sen. Housakos said. “Clearly, if this is Mr. Trudeau’s definition of giving parliamentarians freedom, boy, he’s misguided.”
In response to a question from The Hill Times, Daniel Lauzon, director of communications to Mr. Morneau, said his boss spent a lot of time talking to Senators on the phone, in person, and in committee hearings in an effort to answer their questions and to get the budget bill passed. He accused critics of this interaction of “playing games,” and added that getting Bill C-44 passed is the next step for the government “to help the middle class and grow the economy.”
“The minister and the department did everything we could to answer them,” Mr. Lauzon wrote in an email. “Others may have been more interested in playing games. If anyone is trying to make hay of the fact that the minister was reaching out to people, I suspect they fall squarely in the ‘games’ category.”
Independent Senator Stephen Greene (Halifax-The Citadel, N.S.) told The Hill Times he saw some Liberal MPs in the Senate but nobody lobbied him. He also said he also saw some Conservative MPs in the Chamber before the June 20 vote, but did not remember any names.
Ms. Mendès, one of the Liberal MPs seen in the Senate that day, tweeted the day after that there were Conservative MPs present as well, including Conservative MP Gerard Deltell (Louis-Saint-Laurent, Que.).
As for Sen. Joyal’s point about Senators’ independence when cabinet ministers lobby the Senate, Sen. Greene said he doesn’t mind being lobbied by the private sector or cabinet ministers, and doesn’t find anything unusual about it. He added that parliamentarians should be able to maintain their independence no matter who lobbies them.
“That’s part of politics,” said Sen. Greene, who was ejected from the Conservative caucus recently for sponsoring a government bill and for having dinner with Mr. Trudeau along with a group of other Senators. “I would look at it one issue at a time and I would cast my vote according to the issue at hand. I wouldn’t worry about a future relationship I might have with a cabinet minister.”
Prince Edward Island Ind. Sen. Diane Griffin agreed.
“It’s my responsibility to weigh in all input, to try to get as much information as I can on an issue, and then I make up my mind on it, and that’s how I vote,” said Sen. Griffin.
Toronto Liberal Sen. Art Eggleton (Toronto, Ont.) chalked up the presence of Liberal MPs and ministers in the Senate to “curiosity.”
“I think they were there to see what was going to happen,” and how Senators would respond to the public messages from Mr. Morneau and Mr. Trudeau discouraging the Senate from amending the budget bill, said Sen. Eggleton.
“They certainly didn’t seem to be there to lobby. They weren’t lobbying me,” said Sen. Eggleton.
Sen. Eggleton said he spoke to some House Liberals on the Wednesday, June 21 to “let them know that we weren’t happy” with the message sent to the Senate by the House, challenging their right to amend government legislation. He said he could not recall whether he spoke to one of the ministers or MPs who came to the Senate before the vote on the amendment on Tuesday.
Sen. Eggleton said he supported the amendment to the budget bill because, without it, the bill allows for automatic tax increases on alcohol each year, departing from the custom of the government seeking parliamentary approval for each and every tax increase.
He said he did not feel this was the right circumstance for the Senate to insist upon its amendment and push it back to the House a second time, but he warned that time could come.
“We’re not going to automatically back off every time that we have a disagreement with them,” he said.
“Before we get into that kind of a standoff, we need to be on very solid ground in terms of the reasoning for doing it. Is it a constitutional matter, for example? Is it a matter of considerable principle, the Charter of Rights and Freedoms, for example?”
Sen. Eggleton also said it was important for the Senate to respond to the House’s challenge to its authority—the House’s message rejecting the Senate amendments to the budget bill included a line that said they “infringe upon the rights and privileges of the House”—so as not to leave the “impression” on the House that the Senate agreed.
The Senate sent a message back to the House to confirm “its privileges, immunities, and powers as provided under the Constitution to amend legislation, whatever its nature or source.”
“It’s important that we do that,” said Sen. Eggleton. “They got it wrong. We have every right to amend the legislation.”
Sen. Joseph Day (Saint John-Kennebecasis, N.B.) echoed the same view.
“We went back to remind them and said we have every right to amend under the Constitution,” said Sen. Day.
Liberal Sen. Jim Munson (Ottawa/Rideau Canal, Ont.) also said it might have been “curiosity” that brought House Liberals to watch the Senate vote.
“It was unusual, but I wasn’t offended by it the way some other Senators felt, that it infringed upon their work as Senators. I looked as it more, ‘Where were you? Nice to see you paying attention to the Senate,’” he said.
“I certainly did not find it intimidating.”
Sen. Munson said Senators didn’t want to play “ping pong” with the House in the dying days of the session over a disagreement that wasn’t related to constitutional issues.
“We put up a good fight, and we can expect many more of these in the fall. It’s going to be increasingly difficult, from my perspective, to predict what the vote will be,” he said.
“At one point, the Senate may not back down on a significant issue.”
Sen. Munson compared the current situation in Parliament, with a Senate split between several groups, to a minority government in the House, in which governments must craft legislation in such a way as to win support from other parties.
It would be “strategically beneficial” for the current government to look how legislation will “play in the Senate” as it is drafting it, he said.
“If the Senate is going to work the way Mr. Trudeau wants it to work, there has to be give and take.”
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