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Parliament or Congress: Which System Better Holds Executives Accountable?

Looking back on the political controversies that engulfed both the United States and Canada last year, the mind naturally turns to comparisons and contrasts. On December 18, the Democratic majority in the House of Representatives successfully impeached President Donald Trump on two counts: abuse of power and obstruction of Congress. The Senate must now decide the rules of the trial of the president. As is well-known by anyone who does not live under a rock, Trump was accused of abuse of power by allegedly presenting, during a phone call with the president of the Ukraine, a quid pro quo to the government, namely the provision of military aid in exchange for a promise to investigate the Ukrainian business dealings of Hunter Biden, the son of Trump’s most serious potential Democratic Party opponent in the 2020 presidential election. He was also accused of obstructing Congress by denying to the latter access to certain documents as well as the testimony of administration officials pertaining to this phone conversation. Whichever side one takes on this controversy, it is obvious that Congress still retains enormous power to hold the President of the United States accountable.

Prime Minister Justin Trudeau of Canada was also accused of committing a serious crime, albeit with far less serious consequences. Last February, evidence emerged that Trudeau, acting through his advisers, had indirectly put pressure on Jody Wilson-Raybould, his minister of justice and attorney general, to stop a criminal prosecution of SNC-Lavalin. The latter is a Montreal-based engineering firm that stood accused of corruption in relation to bribing the Gadaffi regime to the tune of $48 million for lucrative construction contracts in Libya between 2001 and 2011. Wilson-Raybould, who made history as the first aboriginal Canadian to be appointed in the justice portfolio, refused to interfere with the on-going investigation and rebuffed entreaties from the company to negotiate a settlement. As punishment for her honesty, she was moved by Trudeau from her justice portfolio to that of veteran affairs. Soon after this demotion, Wilson-Raybould resigned from cabinet and the Liberal party caucus, choosing to serve as an independent member of parliament (she was re-elected in the fall election later in October). As fate would have it, another phone conversation was the near undoing of a politician. Wilson-Raybould had surreptitiously taped a phone conversation with Michael Wernick, the Clerk of the Privy Council, who had also applied pressure on the justice minister to stop the investigation. Her response to Wernick was that this conversation was inappropriate and was “treading on dangerous grounds.”

To date, Trudeau has not been sufficiently investigated for breaching laws pertaining to “conflicts of interest,” which prohibit a person in public office from using his position to influence, for his own private interests or those of a third party, the decision of another person in office. Instead, a few of his advisers (including Wernick) took the fall and resigned. One former executive at SNC-Lavalin has been found guilty of fraud and  corruption and has been sentenced to almost nine years in prison. Additionally, the firm was recently fined $240 million and has been placed on probation for three years (it can still bid for government contracts, though). The only unofficial punishment that Trudeau has received is the loss of his party’s majority in the fall election. Yet, as the re-elected leader of a minority parliament, he does not face any impending investigation of his actions. Trudeau continues to justify his misbehavior on the grounds that he was “standing up for jobs” in Quebec, which might have been threatened by a criminal prosecution of SNC-Lavalin.

This sorry mess should serve as a cautionary tale to those Americans who have always admired the British parliamentary system, to which Canada is an heir. As far back as the time of Alexander Hamilton, there have always been Americans who have upheld the virtues of the British tradition at the expense of the republican one. One recurrent reason is the perception that the separation of the executive and legislative branches of government encourages only confusion and division over who is responsible for government. As the political scientist Theodore J. Lowi put it, “Today the president is popularly elected, but perhaps he’d have been a lot better off if we had an English-type system, in which the Prime Minister is chosen by the Commons (and the King or Queen). But our president is stuck, as head of state, alone facing millions of expectant plebs: ‘What have you done for us lately?’”

Lowi appeared to be channeling the thought of Woodrow Wilson, who is perhaps the most famous exponent of the thesis that America should move towards a more parliamentary form of government. Wilson, who was deeply influenced by Walter Bagehot’s defense of English constitutionalism, clearly thought that American government suffered from an egregious case of divided sovereignty. In 1879 Wilson published an essay in defense of “cabinet government,” or the unification of the executive and legislative branches whereby a cabinet member would also be a member of Congress, fully dedicated to directing “policy in a manner strictly accountable to majority sentiment.” Taking aim, in his essay Congressional Government (1885), at the power of standing committees in Congress to make decisions that affect the entire country, Wilson concluded that “the more power is divided the more irresponsible it becomes.” The secretive meetings that these committees held fell far short of the public and open debate that characterized parliamentary tradition.

The republican system, by contrast, left little time for any debate. As Ronald J. Pestritto explains in his excellent study Woodrow Wilson and the Roots of Modern Liberalism (2005), the House of Representatives, in Wilson’s view, could “not take the time for careful debate because it is too busy writing the details of national policy, getting bogged down in the day-to-day rulemaking function of government.” Perhaps worst of all, the presidency itself became irrelevant. As Wilson explained in Congressional Government, “A President’s usefulness is measured, not by efficiency, but by calendar months. It is reckoned that if he be good at all he will be good for four years. A Prime Minister must keep himself in favor with the majority, a President need only keep alive.” Pestritto writes: “Ultimately, Wilson wanted a unified and cohesive legislature that would reflect the fundamental unity of will that he perceived in the public mind.” Although Wilson gradually saw the presidency rather than Congress as the branch best suited, in Pestritto’s words, to “embody the public mind,” he never gave up his belief that the principle of separation of powers was a fatal hindrance to this goal of unity. Indeed, Wilson’s misgivings about this principle led him to dismiss impeachment as “an empty menace” due to the fact that the “House of Representatives is a tardy grand jury and the Senate an uncertain court.”

Political unity was a top priority within the progressivist movement to which Wilson broadly adhered. As Raymond Tatalovich and Thomas S. Engeman explain in their first-rate study The Presidency and Political Science (2003), the growing class conflicts arising from a rapidly industrializing America in the early 20th century merited strong unified leadership from its political class, according to Progressives:

All Progressives believed the Constitution was hopelessly inadequate for the new industrial and urban world, which, they argued, was the harsh reality that now followed America’s loss of agrarian innocence. They differed, however, in their diagnosis of the causes of the constitutional crisis and the solution to it. Their own shared conviction was that the weak, Jeffersonian presidency required radical improvement to make the national government competent to meet the exigencies of the new social wars of Darwinian America.

Whether a parliamentary system of government could navigate these “exigencies” more successfully than a republican one is another question. True, the prime minister in the parliamentary system is the unambiguous leader of the nation as well as its chief lawmaker, a unifying symbol that, Wilson hoped, the American presidency could emulate. Wilson, as a progressivist reformer, legitimately worried in his essay Constitutional Government in the United States (1908) that “the purchasing power of money in politics” undermined democracy, particularly in the Senate. Nevertheless, Wilson showed little doubt that a system that unites the executive and legislator would be more immune to the usual corruption that afflicts the political realm. As Pestritto explains:

Wilson also did not see the apparent irony in his calls for using the party system as a tool for progressive national leadership, as he alternately criticized the spirit of party and the corruption of party officials, and discerned in political parties the means of reforming the government.

In the century following the musings of Wilson, it is far from obvious, as Arthur Schlesinger Jr. noted in his The Imperial Presidency (1973) that parliamentary regimes can avoid the “Vietnam-Watergate effect” that revealed the dangers of placing excessive power in the hands of the executive. Judging from the SNC-Lavalin affair, there is no valid reason to conclude that a parliamentary system of government avoids the Scylla of money’s influence over politics any more than the Charybdis of corrupt political parties. The fact that talk of separatism is once again on the rise in two provinces (Alberta and Quebec) also suggests that a parliamentary system has no magic formula for unity.

As Wilson-Raybould discovered to her horror, a government with ties to a company linked to corrupt dealings with dictatorships can easily ignore the public interest as well as the rule of law. Plus, a government with a majority of seats in parliament is hard to hold accountable in a legal sense, however public the debates happen to be. If the governing party is sufficiently cowed by the prime minister, parliament can do little more than protest. The fact that a prime minister was able to sack his own minister of justice with impunity does not exactly vindicate the superiority of a parliamentary system over the republican separation of powers. If anything, we Canadians might even envy the power that Congress can wield against the Chief Executive.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on January 30, 2020 at 07:46:54 am

WHEN the Senate acquits Trump (because the gloves don't fit) Wilson will prove once again to be right.

Proving the old adage a blind squirrel DOES find a nut once in a while

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TheOriginalDonald
on January 30, 2020 at 08:02:42 am

A thoughtful, critical account of an enduring debate, and a clear exposition of a troubling episode in Canadian politics. And how beautifully Havens writes!

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Anne Norton
on January 30, 2020 at 09:29:38 am

Take that, F.H. Buckley and your Wilsonian-like love of Parliamentary Government as we come to see that, Yes, even Canada, Dear refined, modest Canada can corrupt its Parliamentary systems.

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Guttenburgs Press and Brewery
on January 30, 2020 at 13:03:19 pm

Ultimately, Wilson wanted a unified and cohesive legislature that would reflect the fundamental unity of will that he perceived in the public mind.”

One must give thanks to the Framers each and every day for designing our government to impede those who would claim to embody the "public will" in their own persons. Ask Germany how that worked out.

I haven't read Jonah Goldberg's Liberal Fascism but I hope it references Herbert Croly's Progressive Democracy, whose frequent mention of "national will" ought to have made it required reading in the schools of the Third Reich.

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QET
on January 30, 2020 at 15:24:17 pm

The recent failures of both parliamentary and republican governments arguably share the same weakness. Citizens and officials who lack political virtues. In 1992, Republicans criticized Bill Clinton through the slogan, "Character counts." No more. Without political leaders who value knowledge, prudence, integrity, and courage in order to promote the common good over remaining in office, or the trappings of power, or money , no form of government will be effective.

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Al
on January 30, 2020 at 17:07:54 pm

The Unites States Senate has not been accountable since the passage of the Seventeenth Amendment which provided for direct election of Senators.

Whether either system has any means of holding the Executive Accountable is a matter of will.

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Earl Haehl
on January 31, 2020 at 06:32:15 am

The premise of the argument that Parliamentary Governments is at best no better than Congressional Government is that Justin Trudeau got way with something illegal. There was nothing illegal in the government's attempt to persuade the Attorney General to allow SNC/Lavelin a deferred prosecution. The Shawcross Principles it is alleged to have breached were enunciated before there was such a thing as deferred prosecution. Sir Hartley might well have amended his principles had there been.

I write this as a Conservative who loathed Trudeau père and loathe Trudeau fils. As a matter of policy the government may have been wrong, but that is another question.

Trump looks sure to be acquitted by the Senate. He will be held to account by the voters. How far his impeachment may damage him is a matter of speculation.

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Image of John Pepall
John Pepall
on January 31, 2020 at 10:59:31 am

The Ethics Commissioner Mario Dion found Trudeau guilty of violating the Conflict of Interests Act., in his report on this matter in August last year. Wilson-Raybould said in a statement that Dion’s report “represents a vindication of the independent role of the attorney general and of the director of public prosecutions in criminal prosecutions — and reinforces for Canadians how essential it is to our democracy to uphold the rule of law and prosecutorial independence.” Yet she was also disappointed that Trudeau refused to hand over relevant cabinet documents to Dion that would have aided his investigation. In short, Trudeau was found guilty of violating the law more than once in this affair. Dion agreed with Wilson-Raybould that this refusal stymied his investigation.

None of this is simply a "matter of policy."

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Grant Havers
on February 08, 2020 at 08:55:50 am

Dion found Trudeau had 'contravened' a 'rule' under the Conflict of Interest Act. To do so he held that Trudeau had acted 'improperly.' The rules do not create an offence. 'Violations' under the Act are something else.

It's just the opinion of a career civil servant whose accepting the position of Ethics Commissioner is evidence of his not understanding ethics. To justify his budget he has to find impropriety from time to time. Anything will do.

Wilson-Raybould instructed Justice Department lawyers not to defend indigenous claims. Her business, a lucrative one, before she entered politics was advancing indigenous claims. She has little understanding of ethics.

Cabinet documents are Privy Council Confidences specifically protected by the Act. We know quite enough of what happened.

The 'matter of policy' was protecting Lavalin jobs. Whether they were under much threat or any threat to them was more important than the conviction of Lavalin are questions of judgement. Boy Trudeau may have been wrong about that.

The issue was seen very differently in Quebec, where it had practical consequences, than in the rest of Canada where it provided on occasion for self-righteous display.

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John Pepall
on February 08, 2020 at 16:33:07 pm

Hopefully, it will never be a mere "matter of policy" to block an investigation of a company that bribes a vicious dictatorship with millions of dollars. I concede that the Trudeau Liberals put politics well above ethics, but that is hardly a defence of their actions.

The Conflict of Interest Act states: "Every public office holder who contravenes one of the following provisions commits a violation." In short, violations presuppose rules or provisions that are being violated.

There are also "penalties" under this Act, which presuppose an "offence" or violation whose perpetrator must be punished. Admittedly, these penalties are rather vague or ambiguous. This uncertainty over the application of this Act hardly testifies to the strength of our parliamentary system (at least compared to the republican one). Dion should have been tougher on Trudeau, in any case. Even though Trump was acquitted in the Senate, he was subjected to a forensic and painstaking examination in the House that far surpassed anything inflicted on Trudeau.

Wilson-Raybould, Dion, and the Liberals all have political biases or agenda, indeed. But, as Churchill once said in a different political context: that is true, but not exhaustive.

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Grant Havers
on February 09, 2020 at 07:48:52 am

The matter of policy is what to do when the criminal conviction of a corporation threatens the jobs of innocent workers and the supply of goods and services to the public, including the government. That is why deferred prosecutions have been adopted in several jurisdictions, including the US.

There was never any question of blocking an investigation. The issue was the appropriate disposition of a case assuming a conviction was a likely outcome.

There was nothing against the law in doing business with the vicious dictatorship of Libya. There are many saying it's a pity Gaddafi isn't still in power and doing business. Bribery of benign democracies is as much an offence as bribing dictatorships.

The 'adminstrative penalty' of a whopping $500 follows a notice of violation of provisions of Sections 22-27 of the Act. It does not apply to the Rules in Sections 4-19. Interesting provision: 'penalties have as their purpose to encourage
compliance with this Act rather than to punish…'

The word 'violation' is plainly used in distinction from 'offence.'

I can't see how you think Trump has been more effectively held accountable for what I assume you judge to be a 'high crime and misdemeanor' than Trudeau was for an impropriety. Trump was acquitted and is standing higher in the polls than at any time during his presidency. If he is defeated in November it will be very difficult to show that that was because the House held him accountable.

The House investigation was 'forensic' only in the root sense that it took place in a forum. It was a shambles and a circus. The investigation both by the Commons committee and Dion was as thorough and painstaking as the circumstances indicated.

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John Pepall
on February 09, 2020 at 16:48:48 pm

I never denied that it is legal to do business with dictatorships. What is illegal is bribery of foreign officials. For this reason, as I mentioned in my article, an executive from SNC-Lavalin (his name is Sami Bebawi) was sentenced in January to almost 9 years in prison for bribing the Gaddafi regime (along with pocketing some of the dough himself). The political chaos that afflicts Libya today has nothing to do with the SNC-Lavalin case. The punishment imposed on Bebawi shows that this case was not trivial in nature or importance, as Wilson-Raybould understood early on (to her credit).

As for Trump, whatever the politics surrounding his impeachment, the actual processes and investigative mechanisms that the House employed are absent within the Canadian system. The impeachment process itself is an exercise in accountability, whatever the outcome. As I argued, unless Trudeau's own party turned on him for his misbehavior, there is little chance that he could be removed from office. True, Trump's own party acquitted him, but only after a thorough investigation in the House. The Liberals wanted nothing like this (hence Trudeau's attempts at a cover-up).

Facts are stubborn things, eh?

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Grant Havers
on February 10, 2020 at 10:04:43 am

It was you who introduced the irrelevant fact that Libya was a vicious dictatorship.

I assume Bebawi got justice. I have not said that the case against SNCLavalin was trivial. What I say is that the finding that Trudeau and his aides acted improperly was, if accepted, minor in the scale of things, not a legal finding and not an offence.

I also say that the finding by an official whose very office is a false position was wrong.

As is has no legal consequences, it cannot be appealed.

As Churchill pointed out to Roosevelt and Stalin, he was the only one of them who could be out of office in a day. So Trudeau can be. I believe he is unfit for any office. Most people in Canada, including most of the media, and Liberal MPs disagree. I regret that, but it is not the fault of the institutions.

Trump is also unfit for any office. But having been elected, there is practically no way he can be removed.

Those are the basic facts and why parliamentary government is better than congressional government.

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John Pepall
on February 10, 2020 at 14:16:34 pm

Bribery is the relevant factor here, whether it's Gaddafi or someone else. You brought up the irrelevant fact that Gaddafi's regime might be better than the chaos that afflicts Libya today.

Anyway, former PM Stephen Harper did not share the position that a parliamentary government is able to rein in abuses of power without any need for additional vigilance. For this reason, his government in 2006 passed the Conflict of Interest Act (as part of a greater effort to impose accountability on future governments). I quote: “The conflict of interest code applicable to Governor-in-Council appointees, elected officials and political staffers was tightened, expanded in reach and legislated as the Conflict of Interest Act (COIA). The centerpiece of the Act was a demanding regime of disclosure and/or divestment of financial interests, coupled with the use of recusals where conflicts were still considered to arise. Responsibility for its administration was handed to a new officer of Parliament, the Conflict of Interest and Ethics Commissioner, who also administers the Conflict of Interest Code for members of the House of Commons.” (Note that the position of Ethics Commissioner is a real position, not a “false” one!)

The fact that this law came with ambiguous or weak procedures and penalties is disappointing (except to the Trudeau Liberals) but at least in spirit the Harper Tories were identifying a real problem that afflicts the Canadian system—lack of true accountability on the part of a government with a majority of seats in the House of Commons.

Dixi et salvavi animam meam.

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Grant Havers

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.