Howard Anglin: Let the people get what they want, good and hard
Recall legislation is a bad, bad idea.
By: Howard Anglin
You might think that the current populist moment in western Canada is an odd time for a government to hand voters a new stick with which to beat them. On the other hand, the Alberta government’s decision to bring into force a law passed last summer that allows voters to recall elected officials is very much in tune with the ructious mood in the province.
As a tactical decision, time will tell whether it proves to be masochistic or Machiavellian. As a political development, however, it is an unnecessary subversion of our constitutional system. The best that we can hope for is that Alberta’s new law, which comes into force on Wednesday, proves as futile as the B.C. law on which it is based. I suspect that more than a few of the politicians who voted for it quietly agree.
The Recall Act, which was part of a 2019 UCP platform pledge to “strengthen democracy and accountability in Alberta” mirrors the terms of the recall law enacted in B.C. after the 1991 election that swept a scandal-plagued Social Credit party out of power (and, a few years later, out of existence). Like Alberta’s law, the B.C. law requires the signatures of 40 per cent of eligible voters in a constituency gathered within a 60-day period to trigger a by-election. In B.C., this barrier has not yet been cleared despite 26 recall initiatives (although, in a few cases, politicians have resigned rather than fight).
Recall laws are not unique to Canada. The United Kingdom has had recall legislation since 2015, but it differs from the Alberta and B.C. laws in that it is triggered not by disgruntled voters but by MP wrongdoing, including being convicted of expense fraud, suspended from the House of Commons or sentenced to prison. Despite this extra requirement, the apparent criminal propensity of U.K. politicians plus a low threshold of 10 per cent of voters to trigger a by-election mean that the law has already been used successfully twice.
You may also remember the California vote last summer, in which the oleaginous Governor Gavin Newsom comfortably survived a state-wide recall. After some early uncertainty, California’s fit of popular pique ended in exactly the same place as the gubernatorial election three years earlier — literally, to the decimal place — with 61.9 per cent support for Newsom. After 18 months and half a billion dollars, all the process proved was that the period of appointed military governors from 1847-1850 remains the high-water mark for good governance in California.
The argument against recalls starts with the fact that they bear the same relationship to democracy that a mulligan does to the rules of golf. We already have regular elections to vote out unpopular politicians. A recall is for people who can’t wait four years to admit their own mistake. It is an impetuous power for impatient people. Besides, voting the bums out is the chief joy of democracy — surely we can wait a few years to savour the moment.
Some elected politicians are unworthy of the trust placed in them. But that is our fault as voters. Venting our frustrations at the people we elected is a cop out. Mencken infamously wrote that “Democracy is the theory that the common people know what they want, and deserve to get it good and hard.” He was right. In an hereditary aristocracy, you can blame the bad luck of the genetic lottery, and in an autocracy you can fume about the injustice of might making right. But in a democracy, we have no one to blame but ourselves. We voted ‘em in, and now we deserve to get it good and hard ... for four years at least.
Recall elections could, in theory, be used to punish politicians who commit gross offences while in office. But we already have a mechanism for that. In Canada, a politician who commits a serious offence can be expelled by the legislature as part of parliament’s privilege to define its membership. At the federal level, this power has been exercised thrice: once to expel the Labor-Progressive Party MP Fred Rose, who was the first member of parliament to propose Medicare legislation and anti-hate speech laws, and happened to be a Soviet spy; twice to expel the irrepressible Louis Riel.
The criminal law also applies to elected politicians and serious violations of the Canada Elections Act carry an electoral bar against standing for office of five or seven years. So, we don’t need a recall power for the worst offenders. This leaves as the most likely targets for recall those politicians who commit the gross democratic offence of supporting unpopular legislation, which is another way of saying that recall exists to fetter a politician’s judgement.
This brings us to the central problem with recall laws: they are unconstitutional, not in the sense in which that word is usually used in Canada, but in the traditional sense of being contrary to the assumptions of our constitutional order. Specifically, they confuse our system of representative government with a system of mandates, which we rejected more than 200 years ago.
When the radical Jean-Jacques Rousseau argued in Considerations on the Government of Poland that elected officials should be sent to the legislature with binding instructions on how to vote, cooler heads, like that of the Rev. Anthony Ellys, pointed out the obvious flaw in the proposal: the voters wouldn’t be privy to the facts about what was being voted on when they drafted the instructions.
In a representative democracy, elections are not a popular straw poll and our legislatures are not designed to be a sample in a continuous national plebiscite. The process of legislating is supposed to be a deliberative process in which we trust our representatives to form their judgment on a question after they have debated it, not before.
The Jacobin impulse to turf our representatives when they don’t give us exactly what we want assumes that we know better than the people we elected to represent us, even though we have not had the benefit, as they have, of reviewing the evidence, hearing multiple viewpoints, and debating the matter with the representatives of all the other communities. If, after participating in this process, our representatives don’t vote the way we want, it is at least as likely that we, and not they, are mistaken.
If you still like the idea of recalls, then fine, in Alberta you can now recall away. But as you do, I would urge you to ask yourself one question: if a plurality of voters screwed up the choice the first time, what makes you so sure that a smaller number of the most excitable of those voters will do better the next?
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