De Soto Vs. Piketty

Thomas Piketty’s Capital in the Twenty-First Century comes under fire from Hernando de Soto in his “The poor against Piketty.” De Soto is the author of The Mystery of Capital. Having devoted his life to extolling the virtues capital, he is not happy with Piketty’s argument that capitalism produces unsustainable inequality. According to De Soto, Piketty’s “political” thesis is “clearly wrong.” This he knows because of field research he has done on Arab revolutions. Right here, red flags should go up for the reader. If there is one thing that has been a constant in De Soto’s career it is his remarkably ability to say things that are absolutely of a piece with neoliberal economic orthodoxy while appearing to derive his findings from empirical research. His work on the informal economy in Peru, on indigenous peoples, and now on Arab revolutions always arrive at the same conclusions. These conclusions are presented as the findings of a Third World researcher, un-blinkered by Eurocentric categories. They just happen to align perfectly with the thinking of the World Bank and Chicago School economics.

So the main point De Soto wants to make is that the poor in countries like Egypt and Tunisia are really bustling entrepreneurs who have substantial capital (mainly land and real estate) even though these assets are not part of official accounts because they are in the informal sector. De Soto claims that Egyptian “workers” (scare quotes in original) own $360 billion in assets. This fact was discovered by his team of 120 Egyptian researchers working at the request of the Egyptian Minister of the Treasury. With his flair for the dramatic, De Soto (or his researchers) interviewed half of 37 self-immolators who (like Mohamed Bouazizi) burned themselves in protest against the expropriation of their capital, thereby sparking the Arab “revolutions.” For De Soto these revolutions are Industrial Revolutions—i.e. processes driven by entrepreneurs who are struggling for capital. In other words, violence is not caused by capitalism but by the oppressive deadweight of the state which does not allow informal capitalists to thrive. Thus, as expected, De Soto’s findings are exactly the same as in all his previous researches: capital is the solution not the problem, workers are actually entrepreneurs, development is held back by the inability of people to build and protect their capital.

De Soto seems utterly blind to the fact that there is a big difference between a small entrepreneur (read: worker) and a large entrepreneur (read: corporations) and that one of the most important differences is their relationship to the state. In many countries, both in the “West” and in the “Third World”, corporations (both national and increasingly multinational) have substantial structural power over states. A nice example from De Soto’s Peru is provided by UBC doctoral student Zarai Toledo, who recently visited Tambogrande, in the north of Peru just outside Piura. In 2002 Tambogrande held a popular consultation (referendum) on whether to accept a proposal by the Canadian Manhattan Minerals Corporation to start a gold mine in the area. The result was an overwhelming 98 percent “No.” The Peruvian government, after years of resistance, decided to cancel the project (leading to an unsuccessful lawsuit by Manhattan). Since then, 70 referenda on extractive projects have been held, involving 700,000 people from Guatemala to Argentina.

But the interesting thing about Toledo’s analysis is that she looks at what has happened in Tambogrande since the referendum. It turns out that Tambogrande is doing very poorly by comparison with the rest of the region. Half the children are anemic, water is scarce, dengue has spread, and young people are leaving in search of work. Predictably, De Soto argues that the rejection of formal mining has led to informal mining, which shows that people everywhere want to be entrepreneurs as long as they benefit directly. In fact, there is not a lot of informal mining in Tambogrande—most of it is happening elsewhere in the region (Suyo, Sapillica, Lomas and Paimas). Toledo shows that the real problem facing Tambogrande is neglect by the state. Since the Manhattan project was rejected, local authorities have been unable to extract resources from the central government, which has no interest in promoting the local economies that are not associated with extraction. Tambogrande remains heavily dependent on agriculture, which remains the backbone of the economy. Informal mining attracts migrant workers in certain periods when demand for agricultural labor is low. Just as in the past, when state policy focused on import substitution industrialization and neglected agriculture, today agriculture is neglected by a state that is single-mindedly interested in promoting extraction.

Capitalism generates inequality both directly (pace Piketty) and indirectly (through the structural power of capital over the state). De Soto’s utopia of competitive markets in which everyone is an entrepreneur and everyone can get ahead is just that. A neoliberal utopia.

Reflections on Joseph Heath’s “The Forever Campaign”

The best thing in the paper today is Joseph Heath’s “The Forever Campaign.” Heath makes the case that competition, left unchecked, can undermine everything from sports to politics. It is a great argument, and I like the analogy with sport. As football gets more and more competitive, the risks of playing the game outweigh the benefits. “Left unchecked, competition will escalate over time to the point where it becomes all-consuming. Unless carefully controlled, it may begin to undermine itself, to defeat its own purpose.” Or rather, purposes, because a game always has many purposes, including having fun, entertaining people, testing abilities, creating community and esprit de corps. Playing as if all that mattered was winning undermines the activity. And so it is with politics.

Heath points out that elections are competitions: “The basic rule is simple: if you want to run the show, you have to go out and get more votes than your opponents.” But when winning election becomes the only goal of politicians the activity of politics is undermined or corrupted. After all, democracy is not just about elections, it is also about governing. Yet we cannot govern democratically when every aspect of politics becomes about winning election. Hence the “forever campaign.” Harper thinks nothing of calling an 11-week election campaign. After all, he never stops campaigning. And Heath is right: the risk to democracy is not a breakdown and authoritarian rule. The risk is that the value of competition—viz. the alternation in power and the accountability and good government this encourages—is eroded when it is not “carefully managed” to ensure this result.

In the name of competition the US Supreme Court has knocked down all the rules carefully put in place to limit the role of money in politics. The result is the obscenity we currently observe in US campaigns. And we’re not too far behind. More and more, parties are becoming PR vehicles for candidates and candidates are devoting more and more of their time to fundraising. Happily, we have a system of public support for campaigns, but I fear that the expense of the federal election this year will test public patience with this system. But if we abandon it, we will win up with private money controlling everything.

Among the problems Heath sees with competition are its wasteful and self-defeating quality. Like an arms race, competition ratchets up the pressure, leaving everyone worse off. More competition does not create more winners, just more expense. Moreover, and this is critical, the activity of politics is undermined. More time is spend fundraising, the airwaves are saturated with attack ads, and politics becomes an activity dominated by consultants, pollsters, PR experts, and career politicians. Not surprisingly, the public feels left out. Worse still, governance suffers. Heath notes that Harper has turned governing into campaigning: bundling potentially unpopular legislation into omnibus bills to avoid debate and then pandering to their base with laws calculated to shore up public support. And, I would add, often accompanied by fundraising appeals.

I would add to Heath’s excellent analysis that part of the problem is how we think about democracy itself. “We often forget,” he says, “democracy is a staged competition designed to achieve a narrow purpose, which is to produce good government.” Democracy is more than elections, about that we all agree. But it is also more than competition. Deliberative democrats have long argued that democracy is also a system that forces those in power to defend their actions with reasons, and to do so in public in the face of criticism. There is a dimension of elections that is highly cooperative. It provides an opportunity—indeed it compels us—to see the issues of the day from a range of perspectives. The goal is not just to find a majority opinion, but also to allow us to arrive a collective judgments through a process in which everyone is answerable to criticism in the public sphere. This process can be degraded, as when candidates focus on one another’s appearance (“nice hair” mocks a Conservative ad aimed at Trudeau, which is hardly an informative statement). But in the debate on Thursday we saw a pretty high level discussion of the current government’s economic, environmental, and foreign policy record.

If democracy is about producing good government, it must enable us to construct notions of the good in the process. Is the exploitation of the tar sands a good? Is bombing ISIS a good? Is child care a good? The democratic process is about both the collaborative search for answers to such questions, and the competitive struggle to decide which answer should guide policy and law.

Scenarios for a Hung Parliament in October

The Globe and Mail has published a piece by John Ibbitson on what a hung parliament in Canada might look like given the recent polls showing a three-way race in the federal election this fall. Mr. Ibbitson presented a group of academics with five scenarios to discuss.  My own responses are presented at length at the end.

John Ibbitson

Five ways a hung Parliament could swing in October

Imagine this: A cold grey dawn greets the country on the morning of Oct. 20. After counts that go late into the night, it is clear that the general election of the day before has produced a hung Parliament, with no party able to command a majority of seats in the House of Commons. It turns out that the three-way race among the Conservatives, New Democrats and Liberals that emerged in late May, five months before the election, continued right up to voting day.

So what happens next?

Canadians have plenty of experience with minority governments, including two led by Stephen Harper and one by his predecessor, Paul Martin. But in 2008, the opposition parties tried unsuccessfully to create a coalition in order to unseat the Conservatives. After 10 years of Conservative government, voters opposed to Stephen Harper will be pushing the other parties to do whatever it takes to ensure he is no longer prime minister. And a genuine three-way race? We’ve never had anything like that before.

But who would replace Mr. Harper: Justin Trudeau or Thomas Mulcair? Would there be a conventional minority, or a coalition in which both parties are represented in cabinet? And would the two leaders agree to co-operate, even if the Conservatives win the most seats? The possibilities are endless.

We crafted five election-day scenarios, and consulted political scientists from across Canada on what they felt would be the most likely outcome.

Seats in House of Commons: 338

Number needed for majority: 170

What if the Conservatives have the most seats?

(Andrew Vaughan/The Canadian Press)


In the past, such an outcome would produce a Conservative minority government, which would govern on a bill-by-bill basis with the support of at least one other major party. Since the Second World War, John Diefenbaker, Lester Pearson, Pierre Trudeau, Joe Clark, Paul Martin and Mr. Harper have all led minority governments.

But as Cristine de Clercy of Western University points out, “the government of the day forms on the floor of the Commons, rather than being ‘selected’ by voters.” Given the deep animosity that many non-Conservative voters feel toward Mr. Harper, Associate Professor de Clercy predicts, “absolutely the Liberals would try to govern with the minority support of the NDP.”

She does not believe the two parties would unite in a coalition government as the U.K.’s Conservatives and Liberals Democrats did in 2010. (The result was a majority Conservative government in the May election, with the Lib Dems virtually eliminated from the House.)

Richard Johnston, of the University of British Columbia, believes that to make a Liberal minority government “look like anything other than a naked power grab they would have to have an agreement” with the NDP on a set of policies and priorities. Bob Rae, then leader of the Ontario NDP, reached such an accord with David Peterson’s second-place Liberals in 1985. The accord provided two years of stable Liberal minority government.

While there might be no formal coalition, Prof. Johnston believes Mr. Mulcair would only grant confidence to a Liberal government led by Mr. Trudeau in exchange for a series of commitments, such as enacting the NDP’s proposed national $15-a-day daycare plan.

Allen Mills of the University of Winnipeg says that, if the Conservatives won the most seats, Mr. Harper would tell Governor-General David Johnston that he intended to form a government and that he would meet the House. If the Liberals and NDP combined to defeat the government on its Speech from the Throne, then “the Governor-General would have an obligation to see if the Liberals and NDP would form a formal or informal coalition,” he says.

The University of Alberta’s Julián Castro-Rea, however, observes that Mr. Harper has a proven record of asserting iron control over his caucus, and of co-opting opposition parties on a vote-by-vote basis. “The Conservatives will never let the Liberals or the NDP form an alternative government, and for that matter these parties would not even try,” Associate Professor Castro-Rea says. Both opposition parties would instead conclude that bringing down a Conservative minority government before it has chance to govern would render them deeply unpopular.


Maxwell Cameron at UBC believes that a second-place finish for the NDP could be good news for the Conservatives. “The Liberals would face a dilemma,” he says. “It would be one thing to bring down the government in a motion of non-confidence in order to form a minority government, and another to do it so the NDP could form government or to govern in coalition with the Liberals.”

The words “Prime Minister Thomas Mulcair” could be fatal to Mr. Trudeau’s leadership of the Liberals, and to the party itself. Under the circumstances, Prof. Cameron believes that the Liberals might prefer to prop up the Conservatives for 18 to 24 months, before bringing down the government and forcing an election at a time of the Liberals’ choosing.

For Associate Professor DeClercy, however, “I fully expect the NDP would aim to govern with minority Liberal support.” The imperative among progressives to end Mr. Harper’s reign as prime minister would, she believes, trump all other considerations.


For Daniel Weinstock of McGill University, three variables determine the outcome of a hung Parliament: How far ahead the leading party is; how close the second and third parties are to each other in terms of seats; and how close the second and third parties are to each other ideologically.

Prof. Weinstock believes that constitutional convention requires the Governor-General to ask any party with a large plurality of seats to form a government. However, “I don’t think that the G-G would be bound in the same way if the three parties are very close to one another, both in numbers of seats and in share of the popular vote,” he maintains.

This is crucial. When Stéphane Dion and Jack Layton tried to oust the Conservatives with the support of the Bloc Québécois in 2008, the proposed coalition was deeply unpopular with voters, who couldn’t believe that Mr. Dion was about to become prime minister even though he’d been thumped in the election. The 1985 Liberal/NDP accord in Ontario, by contrast, was popular in part because the Liberals had come very close to winning more seats than the Conservatives. It appears that, in the minds of voters at least, the closer the second-place party is to the first-place party, the more legitimate it becomes as an alternative government.

If the result is close on Oct. 19, and the opposition parties combined to defeat the Conservative government on its Throne Speech, then “there would be even more of an obligation on the Governor-General to entertain a coalition government” under the leadership of whichever party had the second-highest number of seats, Prof. Mills believes.

Not everyone agrees. “Stephen Harper’s vicious attacks in the fall of 2008 targeting the proposed Liberal-NDP coalition, supported by the Bloc Québécois, gave coalitions a bad press, and a whiff of illegitimacy and violation of democratic standards,” maintains Associate Professor Castro-Rea. “The parties, and arguably the public, are not used to shared governments; they prefer the winner-takes-all approach. So whatever the results of the next federal election are, I would exclude the possibility of a formal coalition of any kind.”

In any case, he believes that the Conservatives would form a government no matter how narrow their plurality, by dividing and conquering the opposition.

What if the Liberals have the most seats?

(Geoff Robins for The Globe and Mail)


“Liberal minority government,” predicts Jennifer Smith, professor emeritus at Dalhousie University in Halifax. If the Liberals win more seats than the Conservatives, they are certain to form a government, if only because, as Prof. Weinstock puts it, “it seems unlikely that the Conservatives and the NDP would be able to collaborate to either unseat the government or to participate in a coalition.”

This is why, for Prof. Weinstock, the ideologically compatability of the opposition parties, or the lack of it, is so important.

Would the Liberals seek to form a coalition with the NDP, in order to ensure four years of stable government? Mr. Trudeau has ruled that out, and in any case, most of those polled agreed that the NDP would be reluctant to enter such a coalition. “Coalitions are stinko in Canada,” says Prof. Smith. There hasn’t been one since the Unionist government of Conservatives and breakaway Liberals under Robert Borden in 1917, she points out, and “the recent coalition attempt in 2008 wound up being subject to ridicule.” Not only did the British Liberal Democrats suffer badly after their coalition with the Conservatives, but Bob Rae’s NDP suffered after its two-year accord with the Liberals, returning as a weakened opposition facing Mr. Peterson’s majority Liberal government.

But, as mentioned in the first scenario, the NDP might require a Liberal government to enact certain NDP priorities in exchange for any vote of confidence.

What if the NDP have the most seats?

(Chris Wattie/Reuters)


This is a scenario few had considered until very recently. But with Rachel Notley’s win in Alberta, with the NDP trending upward in the polls, and with voters in those polls identifying Mr. Mulcair as a leader they like and trust, an NDP plurality is now increasingly possible.

In which case, what would Justin Trudeau do? He would be under great pressure to support an NDP minority government, or perhaps even to discuss the possibility of coalition, in order to keep the Conservatives from power. But as we have previously observed, if the federal NDP forms a government, the Liberals’ very existence could be at stake.

Prof. Cameron believes that “the most natural outcome would be an NDP minority government. The Liberals would avoid entering into a coalition because minor coalition partners tend not to fare well in subsequent elections. They can position themselves to ensure the NDP governs ‘responsibly’ and wait for the right moment to go back to the voters.”

Prof. Smith agrees. “The Liberal versus NDP rivalry is too intense at this point to make for promising coalition talks. Plus, the NDP would have the wind at its back. Why squander momentum to form a coalition government, itself not a Canadian tradition?

Associate Professor Castro-Rea speculates that “perhaps the NDP leader would be forced to include one or two Liberals in the Cabinet. If the deal fails, the NDP will try to govern as a minority, but the experiment will not last long.” Voters could be back at the polls within a year.

Prof. Weinstock believes that in such a situation Mr. Harper would certainly step down, and then “the joker is whether he is replaced by a leader more – rather than less – ideologically attuned to the Liberals.” A moderate Conservative leader could co-operate with the Liberals in bringing down an NDP government. But facing a Stephen Harper 2.0, the Liberals would have little choice but to prop up the NDP.

Prof. Mills wonders whether the Liberals might back the Conservatives in any case, rather than see the NDP take power. “Justin might be so pissed off with Tom that he will support Steve!”

As we said, the possibilities are endless.

Graphics by Trish McAlaster/The Globe and Mail


See my complete response to Mr. Ibbitson:


The first point to make about the legitimacy of a Liberal government is an obvious one, but not well understood by many voters.  In a parliamentary system, governments are formed by the party that commands the confidence of the House; elections are not necessarily won by the party with the most votes. The Conservatives would be likely to insist that the Liberals and the NDP are stealing the election and it is undemocratic to form a government without the largest party. Such claims are specious, but likely to prove persuasive to some voters. If the Liberals decide to form a minority government, it will be critical to avoid the mistakes that led to prorogation in 2009: they must call a vote of non-confidence at the first opportunity.

Trudeau has indicated that he will not enter a coalition with the NDP (“I’m unequivocally opposed to any sort of coalition”), so the likely outcome would be a minority government. The Liberals with NDP support would have to persuade voters that they are capable of representing a broader and more stable majority in government than the Conservatives could offer. The NDP would certainly prefer a Liberal minority over a Conservative one, and so would likely play along.

The difference between SCENARIO ONE and TWO is that there is especially strong “anyone but Harper” sentiment within the NDP, so there is little doubt that the NDP would seek Liberal support (either supply and confidence or a coalition) to bring down the Conservatives.  Mulcair has expressed willingness to entertain a coalition. The Liberals, however, face a dilemma. It would be one thing to bring down the government in a motion of non-confidence in order to form a minority government, and another to do it so the NDP could form government or to govern in coalition with the NDP. The experience of the LibDems in the UK is a cautionary tale for minor coalition players. The advantage of coalition over minority is mainly sharing in the perks of power; the risk is sharing responsibility for political mistakes.

The Liberals could decide they are neither ready to form government under these circumstances nor prepared to accept the blame for creating the first NDP federal government. Suppose Harper steps down and a new interim leader is chosen. Under these circumstances, the Liberals might decide to give stability to a Conservative government for 12 to 18 months and then go back to the electorate at a time of their choosing.

Militating against Liberal support for a continuation of Conservative government, however, is both the unhappy experience of 2006-2011 that Richard Johnston mentions, and the fact that the Conservatives are unattractive dance partners.  To a degree unseen previously in Canada, the Conservatives have governed with an exclusive concern for their base. As a result, parliament has become an increasingly dysfunctional institution. Between omnibus bills, repeated use of closure, stifling of committees, the refusal to accept amendments to bills, and constant attacks on the other parties, the Conservatives have made themselves toxic beyond their base.

SCENARIO THREE. A narrower lead takes the sting out of the argument that it is undemocratic for the “losers” to bring down the “winner.” It also makes it more plausible that Harper would resign (though the experience of 2009 could persuade him to wait and see if a Liberal-NDP agreement sticks).

SCENARIO FOUR. There would be an expectation that the Liberals would be invited to form government, without the (specious) legitimacy issues arising in the above scenarios. Again, Trudeau has said he would not form a coalition and I think he would hold to that in this scenario. Ironically, the “anyone but Harper” sentiment in the NDP would make them likely to support the Liberals, which weakens their leverage in terms of demanding perks and policies in return for support. That said, they might seek agreement on some core policy issues (e.g. electoral reform).

SCENARIO FIVE.  Here, again, I think the most natural outcome would be an NDP minority government. The Liberals would avoid entering into a coalition because minor coalition partners tend not to fare well in subsequent elections. They can position themselves to ensure the NDP governs responsibly and wait for the right moment to go back to the voters.

— Max Cameron

Do we need a school for politicians?

If you want to be a doctor, lawyer, teacher, nurse, firefighter, entrepreneur, soldier, accountant, or engineer there are schools that provide the knowledge and skills necessary to serve in these professions. But if you want to go into politics, no practical training is necessary. None is available.

This is puzzling. Why do we turn over the management of the biggest and most complex enterprises in our society—municipal, provincial, and federal governments—to amateurs?

Candidates increasingly refer to elections as “job interviews.” But a study by Samara found that few politicians could offer a coherent description for the work they do.

We think it is time for politicians to raise their game. This year, UBC’s Centre for the Study of Democratic Institutions will run its third annual Summer Institute for Future Legislators. It is a program that draws on the expertise of wise former leaders to provide aspiring politicos with the knowledge and skills they need to be better practitioners. We call it “boot camp for politicians.”

Our political wannabes learn about parliamentary practices and procedures, lawmaking and representation, relationships and ethics. They have the chance to hone their skills through role playing and simulations. The highlight is a model parliament session conducted in the BC legislature. Having practiced the art of the legislator, they have personal knowledge of the job they seek.

Some past participants have decided that the political life is not for them. It is better to realize this before entering politics. Others have seen how hard politics is and have become even more enthusiastic about the challenge.

Is it elitist to train people for politics? On the contrary, our goal is to admit anyone who is interested, regardless of their background or qualifications. The only criteria for admission is that applicants must have a desire for public service in elective office.

Our main challenge is how to teach people to be good politicians. It is true that politics is learned on the job. As a practical skill, it requires trial and error. Since there are harsh penalties for making mistakes in public life—just ask Mike Duffy or Pamela Wallin—it may be wise to hone the practice of politics in an environment in which experimentation is possible.

When aspiring politicians are given a context for learning experientially, among peers, and with inspiring mentors drawn from across the partisan spectrum, they can explore different styles and approaches.

They can replicate existing practices—falling back on party discipline, reading from talking points, and refusing to answer questions—or they can explore ways of working across partisan lines, building coalitions, and fostering meaningful dialogue.

They can change the rules to enable more free votes. They can run question period differently. They can experiment with the confidence convention. In short, they have a chance to think about what parliament was designed to do, and to imagine how it might work in the future.

We want our practitioners to imagine models of what democracy could be, not copy what it is. Better politicians means a better democracy. If we want to change politics, we have to change the practice. And to change the practice, we have to improve the practitioners.

Bill C-51 Weakens the Rule of Law

The following remarks were delivered in a panel discussion on Anti-Terror Bill,  C-51, organized by the Institute for the Humanities, Simon Fraser University on 3/24/2015.

Video of the entire event is available here.

Bill C-51 threatens the foundation of our legal system. It weakens the rule of law and the separation of powers which underpins our democracy. It will make our political institutions not only less democratic, and less robust as guarantors of our rights and freedoms, but also weaker—less capable of responding the threats we face and less capable of mobilizing collective action toward desired ends.

Our political system is based on the rule of law. That means nobody is above the law, the actions of all must comply with the law, and no person should be the judge of his or her own cause. Whenever the rules are made, implemented, and enforced by the same person or group of people, we find ourselves in a situation that is the very definition of tyranny.

800 years ago the tyrant King John was forced to sign the Magna Carta, which affirmed “No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, expect by the lawful judgment of his equals or by the law of the land.”

Bill C-51 amends the Canadian Security Intelligence Act to allow CSIS to respond to threats to “the security of Canada” by means of measures that contravene rights and freedoms guaranteed in the Canadian Charter of Rights and Freedoms. It also allows them to break Canadian law. That is, this is a law that explicitly authorizes law-breaking and violations of the Charter by our intelligence service.

What would the barons at Runnymede have thought of the idea of a judge-issued warrant to “enter any place or open or obtain access to any thing,” “remove or make copies or record any information, record or document,” or “install, maintain or remove any thing”? Such sweeping powers were precisely their target.

Such abrogation of the law or the constitution are to be given a fig leaf of legality, which only makes matters more obnoxious. Law-breaking is to be authorized by a warrant from a judge. Except that a judge may not authorize specific illegal activities that are explicitly exempted: CSIS shall not cause death or bodily harm, obstruct or pervert the course of justice, or “violate the sexual integrity of an individual.” What is wrong with this?

We cannot put a judge in a position of saying “the law says you must do X, but notwithstanding that you have my permission to do Y.” Permission on what basis? When a judge issues a warrant it is to guarantee—that is the origin of the word warrant—guarantee the legality of the actions of the police. It is not to find exceptions. It is not to exercise discretion with respect to what is the law. As Paul Ricoeur puts is: “The most fundamental limitation juridical argumentation meets has to do with the fact that the judge is not a legislator, that he applies the law, that is, that he incorporates into his arguments the law in effect.” It is the job of the judge, strictly, to say what is the law—neither more nor less. The very idea that a judge might counsel an illegal act is inimical to our rule of law tradition. It strikes at the very heart of our system of justice.

These provisions undermine the principle of the hierarchy of laws. This principle requires that when a higher law conflicts with a lower law, the higher law shall prevail. Constitutional guarantees cannot be trumped by statutory law; statutory laws cannot be abrogated by municipal ordinances; municipal ordinances cannot be negated by contracts between individuals.

Bill C-51 uses statutory law to interpret which guarantees contained in the Charter of Rights and Freedoms can or cannot be abrogated by a judge. It essentially creates two classes of constitutional guarantees—those which can be abrogated by a judge and those which cannot, and it does so in legislation that ranks below the constitution. Who gave the parliament of Canada the right to reinterpret our constitution and to decide that there are two tiers of guarantees?

To reinterpret the Charter through ordinary legislation makes nonsense of our entire legal system and our constitution. It makes nonsense of the separation of powers.

As Roach & Forcese have said: “For the first time, judges are being asked to bless in advance a violation of our Charter rights, in a secret hearing, not subject to appeal, and with only the government side represented.” The Canadian Bar Association says C-51 “brings the entire Charter into risk, and is unprecedented.” The BC Civil Liberties Association claims: “The role of the court in our constitutional system is to ensure that both the executive and the legislature act in accordance with the law. To ask the court to authorize constitutional violations is simply offensive to the rule of law…”

The separation of powers requires that legislatures legislate, judges judge, and executives execute policy. There is a purpose to organizing the powers of the state in this manner. It is because no law, no matter how carefully written, is unambiguous or free from multiple interpretations.

Take a term like “terrorism.” What does it mean? We could argue all night about the intrinsic meaning of the word, but the reality is that law demands that we take general rules and apply them to particular cases.

To get the best results, you don’t write sweeping legislation and then leave it up to administrative agencies to decide how to best implement the law. You need to build in checks and balances, not to hinder the functioning of government as a whole, but to guarantee its consistency by ensuring that actions by government officials are deliberate, implemented effectively, and enforced impartially.

And the best way to accomplish this is by creating branches of government that are specialized in distinctive activities and that work together to generate authoritative interpretations that guide collective action in accordance with the public interest.

The sad truth is that our parliament has been emasculated to such a degree that it is no longer a meaningful deliberative body. We have omnibus bills that are so complex and comprehensive that their effects can hardly be understood by the MPs who pass them. These bills are rushed through committees that no longer do meaningful work, passed without amendments, following closure to cut off debate.

Among the weaknesses of our parliamentary system is the lack of parliamentary oversight of the intelligence service. Such oversight is absolutely necessary to ensure that the implementation and enforcement of the law is compatible with the rule of law and the public interest.

Many people will object to Bill C-51 because they fear it will excessively enhance state power at the expense of the citizen. That is a real danger. My objection, however, is to the way that this Bill weakens our political institutions.

It will do this not only by making them vulnerable to the abuse of power and to the loss of legitimacy that this will entail.

It will also do so by making it harder to mobilize the resources in our society that enable effective collective action in response to threats. It will create confusion over what intelligence agencies can and cannot do, what constitutes legitimate dissent, the role of the courts, and deliberative quality of our legislative institutions.

Elements of Bill C-51, if passed, must be disobeyed. By whom? By our courts. I expect that this legislation will set up a major conflict between the executive and judicial branches of government. The courts must strike down this legislation as inimical to the Charter.

Canada cannot and should not mark the 800th anniversary of the Magna Carta by tossing key principles from it in the dust bin.

Should Elections BC give parties data on voter turnout?

I spoke today on BC Almanac about an interesting story reported by the CBC. You can hear the podcast here.

The BC Privacy Commissioner Elizabeth Denham objects to a proposed change to the BC Election Act that would provide political parties information about whether people have voted. Her concern is that this information would allow parties to target voters for fundraising and profiling. In political campaigns this is called “micro-targeting.”

In a world of big data, political parties can combine demographic and consumer information with their own internal databases on voters to make powerful inferences about who is likely to vote for their candidates. With this new information they will have an additional tool that will help them to understand turnout among supporters and opponents.

According to BC’s Chief Electoral Officer, political parties want this information: “When consulted on
 this issue, all political
 party representatives
 on the Election Advisory Committee requested that the Election Act also be amended to require the Chief Electoral Officer to provide individual voter participation information 
to political parties after
 an election.” Elections BC does not take a position on the issue, but obviously the government favours it.

Denham does not disagree with sharing information on voters that would help parties to get out the vote. Right now, campaigners are given bingo cards that allow them to track who has voted and who has not, both during advance polling and on election day. Her fear is that the release of individual-level information on turnout after the election could be used “for creating voter profiles, targeting voters, fundraising, sharing data across systems for secondary purposes, collecting non-consensual information, inappropriate communication from parties, and other intrusive uses.”

I was asked to speak to the issue of voter turnout. I think a number of issues need to be disentangled.

First, there is evidence that campaigning does increase turnout. A huge part of election campaigning in Canada is identification of voters and getting out the vote on election day. The more information parties have, the easier it is for them to target their efforts where it will be most effective.

Second, the availability of advanced analytics enables campaigners to be extremely focused in their messages. They can concentrate not just on key ridings but on key demographic groups and even individuals. Whereas in the past we spoke of swing ridings and swing voters in the plural, now the focus is on the swing voter as an individual.

Third, the growing importance of social media means that messages can be targeted at specific individuals or groups, by-passing the filter of the mass media. This raises troubling issues about fact-checking and the use of deceptive communications that fly below the radar.

It is not hard to see how they trends can also have a dark side. If campaigns can increase turnout, they can also be used to suppress turnout. A good example of that is the targeting of Jewish Liberal voters in the last election by vexatious phone calls late on Saturday nights intended to anger them against the Liberal Party. The callers claimed to be from the Liberal Party. Such calls required access to a database that could target the right individuals.

Similarly, the use of deceptive robocalls was a wake-up call to Canadians about the need for more vigorous monitoring and oversight of the behavior of candidates during elections.

By their own admission, parties are having a hard time recruiting the volunteers necessary to keep track of who has voted. This speaks to the way in which parties have become PR machines for candidates, rather than organizations with deep roots in civil society. The discussion of the use of data should be place in this larger context. Increasingly, voters do not trust politicians and parties .

I defer to the Privacy Commissioner on the best way to regulate the use of information in election campaigns. It seems inevitable that our politics is going to be transformed by the mining of data. Perhaps what we need is some sort of enforceable commitment on the part of the parties to uphold standards of good conduct during elections. If they are to be given access to this sort of information, a commitment to honesty and fair play seems like a reasonable quid pro quo.

No single Americas project exists

The following commentary was written in response to a request from the Canadian International Council to discuss to an article by Jean Daudelin on the Summit of the Americas in Panama. See the debate here.

The nations of Latin America are bound together by histories of colonialism and the struggle for independence; consolidation of oligarchies after a period of anarchy in the 19th century; populist mobilizations for political change in the early 20th century; a wave of revolutionary struggles and intense repression following the Cuban revolution in 1959; simultaneous transitions to democracy and market-led development in the 1980s, and, most recently, shifts to the left in some countries and more tepid reforms in others.

“Left turns” reflect disappointment with the record of market reforms, as well as the inability of liberal, representative democracy to promote inclusion and participation in the context of weak public institutions and uneven citizenship. Foreign intervention —protectorates, invasions, or foreign-backed coups — has been another constant in the region’s history.

Today, however, the region enjoys unprecedented independence from the influence of external forces — it is neither in debt to foreign creditors, nor a battleground for superpowers. It is free to pursue experimentation with both political institutions and models of development.  Rather than a single project, we are witnessing a proliferation of diverse patterns of innovation and change.  Among the most interesting models are Brazil and Bolivia, which have broken new ground in developing participatory budgeting, policy conferences, indigenous autonomies, and other new institutions of direct, participatory democracy. They are also pursuing pragmatic developmental and social policies aimed at overcoming legacies of exclusion, poverty, and inequality. While the rest of the world is becoming more unequal, Latin America is becoming more egalitarian.

The biggest challenge the region faces lies in the weakness and politicization of state institutions, which prevents legal institutions from guaranteeing and enforcing fundamental rights and freedoms. The horrific violations of human rights in Central America and Mexico are occurring under electoral democracies of extremely poor quality. The poorest quality of democracy can be found precisely in the countries where colonial legacies are greatest, where large indigenous communities have been excluded from citizenship rights, where extractive industries are most critical to economic development, and where the pattern of political change has emphasized repressive oligarchies, radical populism, and repressive authoritarian regimes. The highest quality of democracy is found in Costa Rica and Uruguay — countries that were marginal to the colonial enterprise, where labour-repressive plantations and mining enclaves were less important, and where the pattern of political development involved the early development of constitutionalism, milder versions of populism, and less repression.

There are emerging projects in Latin America, but we North Americans typically fail to see them because of the ideological blinkers we wear, which cause us to focus narrowly on the protection of liberal democratic regimes and the rights of property and free enterprise rather than to focus on the deeper problems of poverty, inequality, exclusion, and repression that have led to patterns of development in which state capacity to respond to collective needs is diminished.  We persist in thinking that the solution is markets, liberal democracy, and cooperation in such absurdities as the “war on drugs” or the “national security threat” from Venezuela.

Too bad for us. It means we are excluding ourselves from the emerging projects of the Americas.

Does the Duffy Scandal Expose the Need for More Rules?

Much of the reporting on the Mike Duffy trial has emphasized the laxness of the rules of Senate with regard to what counts as residency or what expenses can be claimed. For example, Christy Blatchford writes: “When the man with no shame met the place with no rules, so perfect was the marriage, so instant the attraction, the fireworks must have been spectacular.” She goes on to describe a letter to Duffy from Christopher McCreery, policy advisor to Senator Marjory LeBreton, which indicated that the Senate is an “honourable” chamber in which nobody would question the word of a senator who says he or she can represent a Province where they own property, even if they live in Ottawa 99 percent of the time; nor would anyone question whether expense claims are valid if a senator claims Ottawa as a secondary residence even if he or she lived there for decades, as was the case with Duffy.

What kind of rules was Duffy breaking? You could argue that there were no rules, and therefore he was breaking none. This appears to be Duffy’s defense. Curiously, commentators may accept this defense, arguing for the need for tighter rules. But this lets Duffy off the hook — as well as the guy who appointed him.  Yet another interpretation is possible. We can start by making a distinction between regulatory rules and constitutive rules. Regulatory rules, like most laws, enjoin or prohibit actions on penalty of sanctions; they govern an activity or practice. Constitutive rules create a practice: they are the rules of the game that give an institution its identity and determine its function. What counts as representing a Province is a constitutive rule. What expenses can be claimed once it is determined where a senator lives is a regulatory rule.

The problem exposed by the Duffy scandal is less a problem of regulatory rules: Duffy was not appointed to represent the interests of PEI, he was appointed to be a partisan fundraiser and campaigner. That his appointment bent the rules of residency and that he claimed expenses that were fraudulent is a symptom of a deeper problem—namely, that his appointment was made in the interest of partisan machinations, not in order to enhance the representation of a Province in the legislative process. In a way, it was an arrogation of power by Ottawa, at the expense of PEI, and at the expense of the proper functioning of the political system.

Why I’m happy to vote Yes on the Transit Referendum

Last year I spent seven months in a major city in Latin America. The congestion, pollution and crime are so bad that it makes moving around the city a nightmare. A trip that should take 15 minutes can take 45 minutes to an hour. 45 minutes breathing noxious gases, in aggressive traffic, is enough to make anyone prefer to stay home and read a book rather than go to the theatre, a good restaurant, or meet up with friends.

The experience impressed on me the value of public transit. When I think of public transit I don’t just think about buses, trains, roads and bridges. I think of the freedom to move around town tolerably efficiently, safely, cheaply and sustainably. This is just one of the goods we get in return for the taxes we pay.

Our well-being is closely tied to the quality of these kinds of goods. Others such goods include great public schools, and a public health care system that does not ask for a credit card before asking what ails us, safe streets. Governments alone can provide these goods, and they benefit us all. Many Canadians take them for granted. I don’t. That is why I support the transit referendum.

I will vote Yes because I want to continue to live in a vibrant, livable, safe, clean, sustainable, healthy, and naturally beautiful city. The small tax increase we pay now is an investment in the future. It is a bit of insurance against Vancouver becoming a congested, segregated, unsafe and smoggy city.

I admit there are things about the referendum that I don’t like. I don’t see the necessity of asking voters every time we need to raise taxes to make public investments. This sets a bad precedent and could put us on the same path that has been so disastrous for California where governments have been hamstrung by naysaying voters.

I also don’t like the fact that the revenue for transit will come from a regressive consumption tax. People with high incomes don’t need public goods as much as the public at large, but they should still pay their fair share—maybe more. They can drive luxury cars rather than use the bus or train, pay for private rather than public schools and clinics, and wall themselves off from social problems like homelessness and addiction.

But just because high income earners can find private substitutes for public goods does not mean they should be free riders. The more the affluent fail to contribute to public goods, the more we are like to become like Third World cities with their glaring disparities of income and underfunded public goods.

For all the problems with this referendum, voting “No” is short-sighted and counter-productive. The website of the “No” campaign invites voters to forgo the tax and spend their money on private consumption—a dinner out, a hockey game, or swimming lessons.

I’ll happily pay a modest increase in taxes for public transportation because enjoying the goods comparable cash can buy turns out to be a lot less rewarding when the child you’re taking to swimming lessons has asthma from air pollution, or you’re too tired from spending miserable and unproductive hours in congested streets breathing polluted air on your lengthy commute home, to bother dinning out or going to the hockey game with friends.

Vancouver Votes for the Status Quo

The November 15, 2014, elections in the Lower Mainland provided more evidence of the high rate of incumbency in BC municipal politics: all the largest population centres voted for the status quo. Incumbents were re-elected in Vancouver (Gregor Robertson), Burnaby (Derek Corrigan), Richmond (Malcolm Brodie), North Van (Darrell Mussatto) and the Tri-Cities (Greg Moore, Mike Clay, Richard Stewart). In Surrey, Dianne Watts’ anointed successor Linda Hepner won by a surprising margin. In Langley Township, incumbent Jack Froese warded off a challenge from former mayor Rick Green. There were upset victories in more troubled municipalities: Jonathan Cote’s victory over longstanding mayor Wayne Wright in New Westminster, or the election of Randy Hawes in Mission. In both cases there were conflicts between mayors and their councils. In Abbotsford, Henry Braun ousted Bruce Banman; and in Maple Ridge Ernie Daykin lost to Nicole Read. Perhaps most surprisingly, the election of Lisa Helps—by the narrowest margin—in Victoria is a real surprise. But the main overall takeaway is that voters are happy with the status quo.

In the waning days of the campaign it looked like the Vision government might go down to defeat in Vancouver. After his political “near-death experience,” we may see a chastened Mayor Robertson attempt to be a better listener. He did promise to welcome more voices in his acceptance speech, but he also won a mandate to continue his policies: seeking to be the “greenest city,” prioritizing climate change, affordability, and homelessness. The NPA approach focused on growth, economic development, investment, transparency and accountability. It would have aligned Vancouver more closely with the ideological bent in Victoria and Ottawa. That this did not happen is a reminder that Vancouver is different, especially on the environment—something the federal parties will have to think about in 2015. The results were not what the oil and gas industry hoped for. The cities of Vancouver and Burnaby have both expressed opposition to the Kinder Morgan pipeline expansion, and Patricia Heintzman, the new mayor of Squamish, is opposed to the construction of an LNG plant in that municipality.

The NPA campaign was polarizing and negative. Kirk LaPointe could have run as someone who would not radically depart from the Vision agenda, but would offer more consultation and transparency, but then it would have been hard for him to differentiate himself from Gregor Robertson who already enjoyed greater name recognition and standing in the community. Instead, he ran a more polarizing campaign that highlighted differences between the candidates. Vision seemed surprised by such a strong challenge. Rather than using the negative ads to take the high road, Vision took NPA and LaPointe to court, which seemed petulant rather than politically astute. The Seinfeld-esque apology (an apology about nothing) looked insecure and…well, apologetic.  At one point, in the same debate in which the apology was offered, the mayor was put on the defensive about being a bike rider. He did not strike back over the attack ads, and did not aggressively defend his record. In the end, however, both the strength of the NPA campaign and the weakness of the mayor’s performance was not enough to convince voters to abandon the status quo. I tend not to like negative campaigns because they turnoff voters, suppress turnout, and encourage people to dislike politics and politicians. In this case, however, the NPA campaign led to a tighter-than-expected race, and this probably increased turnout. I think the high turnout may have favoured Vision, which had the better-oiled machine to pull the vote. Ironically, much of Vision’s support may have been a vote against the NPA as much as a vote of confidence in Vision.