Thursday, June 28, 2007

Plan B: The best electoral reform for British Columbia may be the simplest

{ Here's a question: what would the results of the 1996 and 2001 BC provincial elections have been if between a quarter and a third of the seats up for election had been in the form of multi-member districts of say, 4 members each? (3 in the Lower Mainland 3 in the rest of the province, for a total of 24 seats?) Well, in 1996 chances are the Reform Party would have picked up a couple of seats , the Liberals would have wasted fewer votes in the South, the Greens might have picked up a couple. Certainly, a more proportional result, and almost certainly a minority government, although it is difficult to say whether Campbell or Clark would have become the premier. In 2001, a 57% vote for the Liberals in terms of first preferences still would have allowed at least 4 or 5 additional opposition MLAs under such a system. Another question: would the adoption of such multi-member districts be so radical a change that it would require another Citizens' Assembly or even a referendum? My learned friends Wilf Day and Raymond Lorenz--see their excellent comments below--remind me that the BC Citizens' Assembly did do its homework in considering my own preferred option--regional districts with open lists--before settling on BC-STV. But in the event that the BC-STV proposal again fails to reach the double threshold required in 2009, I propose a much simpler fall back position that anyone can understand. Just have 66 single-member constituencies, with 6 4-member regional districts. No preferential ballots, no fancy voting formulae. Just a lot of re-drawn constituency boundaries, for which a tolerably impartial mechanism already exists. --MC}

On October 10, 2007 Ontarians will follow British Columbia's lead and hold a referendum on a recommendation by its Citizens' Assembly for electoral reform. As in BC, the government has set a double threshold for approval of the proposal of at least 60% of the provincial vote, plus a majority of voters in at least 60% of electoral districts. I am betting , however, that unlike British Columbia in 2005, the Ontario proposal will succeed, for two reasons. First, the Mixed-Member Proportional ("MMP") system advocated for Ontario is much simpler and easier to understand that BC-STV is ("One Ballot, Two Votes" as its brochure says.) Second, the Ontario Assembly has strongly recommended that "a comprehensive, well-funded public education program, beginning in May and continuing through to the referendum, is vital." It would be difficult for the Ontario government to be as lax in educating the public as the BC government was in 2005.

But what if in 2009 a majority of British Columbians vote for BC-STV , but once again fail to meet the double threshold? Should this merely be the end of the matter? Electoral reform is a movement across this country, as evidenced by the spate of commissions, assemblies and even a Supreme Court case challenging the constitutionality of our present system. I suggest that a 50%+ vote for BC-STV should be taken as a mandate for more modest electoral reforms. These would take two forms.

Plan B: a la New Brunswick?

The best electoral reform for BC in this event would be similar to the one recommended for New Brunswick: that is, keep about 2/3 (i.e. 60-66 seats ) as single-member constituencies--so that the line of acountability with a single member would remain in place. Then distribute the other 24-30 seats between 4-6 multi-member districts--e.g. 3 in Lower mainland and 3 in the rest of the province. The BC Citizens' Assembly didn't go for this because they a) wanted high proportionality, which would not be possible under such a system; and b)were anti-party--i.e. didn't want a reform that could strengthen party organizations that would control the party lists, as in most forms of MMP, with their province-wide closed party lists.

I disagree with both of these positions. First, I don't necessarily want high proportionality, just a bit more proportionality, such that governments will be forced to be more representative and the bar for achieving a majority government will be raised (thereby avoiding the electoral disasters of 1996, when a party with fewer votes got a majority and of 2001, when a party with 57% of the vote received 77 out of 79 seats). Second, I don't necessarily want to weaken political parties or party discipline --I just wish to avoid making them stronger. The worry about giving too much power to central party organizations or party hacks can be addressed simply by making the multi-member ridings either "open-list" ( i.e. a form of MMP where voters do the ranking) or first-4-or-5-candidates past-the-post (which would not be MMP but which would still reduce the number of wasted votes). In this way, the effects on party strength and party organization would be comparatively neutral.

An End to Corporate and Union Financing of Parties

The federal government and Manitoba have ended corporate and union donations, increasing reliance upon both public funding and individual donations. This can only be salutary in a province where ideological polarization is regularly exacerbated by warring political elites backed by union and corporate treasuries.

Taken together, these two reforms will force all parties to work harder to appeal to a wider cross-section of British Columbians. Consensus-building and inclusiveness, rather than exploiting divisions and capitalizing on "split votes", would become relatively more important in electoral strategy. Something closer to real majorities, and not just artificial ones, would determine the ultimate parameters of political power. At least, to a greater degree than has typically been the case during much of BC's turbulent political history.

Saturday, June 09, 2007

Gordon Campbell and the Rule of Law

It is remarkable how chickens keep coming home to roost from Gordon Campbell's first two reckless, self-indulgent, ideologically-driven years in power. His assurances in the 2001 election that he would not privatize BC rail, and that there would be no need for drastic cuts in social services because his planned 20% tax cuts would "pay for themselves" (what planet was he living on when Reagan's supply side experiment yielded the biggest deficit in human history?) were plainly disingenuous.

These statements were not "Noble Lies" motivated by the need to "get BC moving again". They were simply a reflection of Campbell's determination to leave nothing to chance, and to not get burned again electorally--as he had been in the 1996 election, when he was probably more candid than his redoubtable opponent, Glen Clark. The deplorable paradox was that if in 1996 he was honest when he couldn't afford to be (i.e. about BC Rail and possible social services cuts), in 2001 he failed to be honest when he could afford to be, making a long list of unnecessary promises when none were needed to win. The Liberals later claimed that they had kept "over 90%" of those promises. If your spouse or employer said that about their contracts with you, wouldn't you be intensely curious about which 10% they didn't keep?

The simple truth is that ripping up collective agreements with health care workers in 2002 was not a "reasonable limit" on workers' legal rights necessitated by soaring health care costs or spiralling debt, except perhaps insofar as the government needed to pay for those ill-conceived tax cuts that were supposed to "pay for themselves". (Those cuts could have easily been phased in over a 4-or-5 year period, making it possible, or at least more possible, for the government to keep all of its promises.) And when BC's economy finally did turn around, it wasn't because of cuts to Health, Education, or 24% cuts to the budgets of Children and Families or other Ministries, but because of rising commodity prices. Even a utilitarian recognizes that when government inflicts unnecessary pain to achieve the common good, it is being a bad government.

Yesterday's Supreme Court ruling in '>Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27 makes essentially the same case, but from a "rights" perspective. It is significant because it makes crystal clear that section 2(d) of the Charter of Rights and Freedoms, which guarantees "freedom of association," includes a procedural right to collective bargaining. This effectively corrects the Court's early Charter labour jurisprudence, which contained no such recognition; the Court cited both pre-Charter common law rights going back centuries and Canada's international treaty commitments in their reasons for changing the law. This right cannot be "substantially interfered with" by a government measure, i.e. when that measure (1) affects the capacity of the union members to come together and pursue collective goals in concert; and (2) when the manner in which the measure impacts on the collective right to good faith negotiation and consultation. Needless to say, the Court found the Campbell government's draconian Part 2 of the Health and Social Services Delivery Improvement Act, S.B.C. 2002, c. 2 (“Act”), easily met this definition of substantial interference and was violative of the Canadian Charter of Rights and Freedoms guarantees of freedom of association (s. 2(d)) and equality (s. 15). In finding that the law could not be saved by the Charter's section 1 "reasonable limits" clause, the Court stressed the government's complete failure to undertake adequate consulation or to consider less restrictive means of obtaining their objectives:

" The evidence establishes that there was no meaningful consultation prior to passing the Act on the part of either the government or the HEABC (as employer). The HEABC neither attempted to renegotiate provisions of the collective agreements in force prior to the adoption of Bill 29, nor considered any other way to address the concerns noted by the government relating to labour costs and the lack of flexibility in administrating the health care sector. The government also failed to engage in meaningful bargaining or consultation prior to the adoption of Bill 29 or to provide the unions with any other means of exerting meaningful influence over the outcome of the process (for example, a satisfactory system of labour conciliation or arbitration). Union representatives had repeatedly expressed a desire to consult with government regarding specific aspects of the Act, and had conveyed to the government that the matters to be dealt with under the Act were of particular significance to them. Indeed, the government had indicated willingness to consult on prior occasions. Yet, in this case, consultation never took place. The only evidence of consultation is a brief telephone conversation between a member of the government and a union representative within the half hour before the Act (then Bill 29) went to the legislature floor and limited to informing the union of the actions that the government intended to take.

This was an important and significant piece of labour legislation. It had the potential to affect the rights of employees dramatically and unusually. Yet it was adopted with full knowledge that the unions were strongly opposed to many of the provisions, and without consideration of alternative ways to achieve the government objective, and without explanation of the government’s choices. "
('>Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27 , paragraphs 159-160).

It is also important for British Columbians to note the many strong parallels between this run-in with the law and that other major legal contest that the government has been embroiled in during this past week, the long-simmering Basi-Virk trial. Both cases (1) start with Campbell government rushing to break a central campaign promise; (2) the government getting into legal trouble because of its inattention to procedural values; and (3) the government probably making matters worse by trying to spin, manage, control and otherwise drag the resulting legal conflict out as long as possible.

In terms of centralization of power, obsession with information control and communications, secrecy, and hostility to procedural norms, this government rivals and in some ways exceeds the Clark government that it so self-righteously condemned while in Opposition. And it is reasonable to ask whether Gordon Campbell can help himself. He is determined to leave nothing to chance; he is a control freak with the most centralized party and administration since W.A.C. Bennett. While those traits can sometimes help to avoid trouble and yield political benefits (look how quickly the government was able to change direction on land claims and climate change), they can also land people in some very hot water, as political leaders from Richard Nixon to Glen Clark have learned to their sorrow.

This, surely, must count as the Campbell government's Achilles heel.