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.