Evidence of meeting #55 for Procedure and House Affairs in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was opposition.
A video is available from Parliament.
Conservative
Tom Kmiec Conservative Calgary Shepard, AB
No. I have my outline here. I'm trying to stay within the outline and cover all those points, and I think I've done so already.
Because the United States Congress's example was used in the discussion paper from the government, I just want to reflect on it. The rule change introduced by the previous partisan affiliation to how Congress works, in the Senate and in the House, has nearly every single time, especially on amendments to filibuster rules, dilatory motions, motions that obstruct the majority, led to people regretting their decisions. I know many Democrats now feel that way when looking at the appointments. Appointments used to have to be passed by a supermajority of 60 in the Senate, and now that's no longer the case. They have changed it to 51. Some appointments have gone through on 51. They don't apply to Supreme Court nominees, though. They apply to other measures. This was a way for the majority to dictate to the minority how the rules will affect their rights to obstruct, to delay, and to make a point.
In the U.S. Senate it's a common joke to say that every single appointee has a buddy senator, because every single person who is proposed for appointment has to go through a confirmation hearing. Every one of them gets a buddy senator because there will be a senator who will object to the appointment, and that then delays it from getting to the committee. They've only resorted to that because of the way the rules are structured.
Chuck Grassley, a Republican from Iowa, who's been a senator since 1981, took the Senate floor to condemn the filibuster rules changes. He quoted Democrats who were opposed to filibuster reform when the party was last in a minority. “Not too many years ago, my colleagues on the other side described their fight to preserve the filibuster with great pride”, Grassley said, “Today the other side is willing to forever change the Senate because the Republicans have the audacity to hold them, the majority party of today, to their own standard.” You could replace “Chuck Grassley, Republican from Iowa” to “Nameless Conservative opposition member or New Democrat”, and replace every mention of an American one to the Parliament of Canada, to a member of the House of Commons, to the Liberal Party. What we are simply trying to do is hold you to your own standard, the high standards you ran on in the last election. That's simply what we're trying to do.
They have come to regret it, in the U.S. example, having changed their rules in the House to facilitate the passage of appointments, except for Supreme Court appointments. The Democrats have come to regret it, as you will come to regret this, and others in your government caucus will come to regret this as well. I don't think it helps you in any way to do that.
Perhaps some members will say that this, my prolonged, substantive debate at this committee, at PROC, has been unreasonable, but let me remind you about some famous filibusters in the United States, which were far more fiery, and I think I am much more even-tempered. Mr. Christopherson brought the fire on the first night. Some of the longest filibusters in U.S. Senate history since the 1900s: 24 hours and 18 minutes by Strom Thurmond from South Carolina, on the civil rights bill, 1957, and I believe this was continuous; Alfonse D'Amato from New York, on a military bill in 1986, 23 hours and 30 minutes; and Wayne Morse from Oregon, 22 hours, 26 minutes on the Tidelands Oil bill, 1953. Those are the only three I'm going to mention.
This by no means has been prolonged. I have tried to be relevant and substantive, and to produce some additional information for the consideration of the committee on why I think this amendment is worth passing, through examples in the past where it worked, it made sense, it made a contribution, and it produced something better. I don't think we're going to get there if we don't pass this amendment. Without this amendment, we have no certainty in knowing how we will be able to work with committee members on the government caucus side, and that worries me.
In the U.S., because it was mentioned in the government document that was produced, until 1841 there was the ability to filibuster in the U.S. House of Representatives.
There was, of course, the great compromise, the Missouri compromise of 1850, I believe, or 1820 and 1850, two of them. There was concern at the time about long speeches impeding House business. It dated all the way back to 1820, which was one of the first great compromises, on the territories of the United States becoming states. In 1850 it all related to the slavery debates in the United States.
They were worried about the same thing that members of the government are worried about, which is the prolonged debate on issues at committee. I don't think you can give me an example of another committee in this Parliament at which debate has been prolonged too long, at which there have been motions to delay government business on purpose. Correct me if I'm wrong, but apart from this committee at this time, I don't think that has happened. I think we've had interesting debates and I think we've had interesting discussions at different committees.
In 1841 the rule adopted on the motion of Lott Warren of Georgia, required that “no member shall be allowed to speak more than one hour to any question put under debate.” This was the first rule change in the U.S. House of Representatives that ended their ability to filibuster and ended the ability of people opposed to measures—because the party system wasn't as defined then—to obstruct the will of the majority. It passed the House by a vote of 111 to 75—with John Quincy Adams of Massachusetts, who was known as “Old Man Eloquent” by his peers, among those dissenting. He was renowned for giving multi-hour speeches that would never end. Obviously, he had a preference.
According to Hinds' Precedents, the one-hour limit did not become a standing rule of the House until June 1842. That was a year after the vote, and two years after it had been raised as an issue. After that, the minority would sometimes make use of this: the disappearing quorum.
I know that the quorum rules of the House of Representatives have been used in this House in the past, and they were actually a bone of contention regarding whether there was quorum, because quorum and what a quorum of the House of Commons shall be, I believe, are defined in the Constitution.
Mr. Simms, I don't know if you can correct me on that.
Conservative
Tom Kmiec Conservative Calgary Shepard, AB
I know there is a lot of noise around us, but the quorum in the House of Commons is defined in the Constitution. Am I wrong?
Liberal
Scott Simms Liberal Coast of Bays—Central—Notre Dame, NL
Is it defined within the Canadian Constitution?
Liberal
Scott Simms Liberal Coast of Bays—Central—Notre Dame, NL
Are you talking about provincial representation, or...?
Conservative
Tom Kmiec Conservative Calgary Shepard, AB
No, I mean in terms how many members are needed in the House of Commons for quorum to be held.
Liberal
Conservative
Conservative
Tom Kmiec Conservative Calgary Shepard, AB
There is always Google. My iPad is turned off for now.
That was often used to obstruct, so the minority—because its ability to debate and to obstruct had been taken away—started to pull quorum and members started to leave the House whenever there was an issue brought forward that they did not want moved forward. They started to obstruct the majority by removing quorum, something as basic as that.
It's just like when you are trying to resolve a policy issue in one area. If you clench your fists and you have sand in your hand, some sand will come out. Every time the government tries to grasp more power away from parliamentarians in order to make the House more effective and efficient, you will find that we will find new and innovative ways, creative ways, to get our point across.
I think innovation is in the new budget. I haven't had as much time as I would like to read the budget, because I've been here debating this issue. We will find innovative ways. We'll contribute to Canada's innovation deficit and reduce it a little bit by finding new ways to get our points across so you don't ignore us and try to exclude us from the proceedings. That is why this motion is so important, because it goes towards that unanimous consent tradition that must exist in this House.
I'll quote a headline from The New York Times only because it applies here just as much as it applies there, “Hard Choice for Mitch McConnell: End the Filibuster or Preserve Tradition”, by Carl Hulse on November 11, 2016, very recently.
The choice is really between two things. The document put on the government website tells us that what we will consider at this committee is a choice between doing what the government is telling us to do—making the potentially substantive changes proposed by the government House leader, which will end tradition or may end some of our traditions and our much cherished privileges—and preserving the traditions, the customs, and the covenants we have with this place, and defending those.
Liberal
Scott Simms Liberal Coast of Bays—Central—Notre Dame, NL
On a point of order, very quickly...it's 20.
Conservative
Tom Kmiec Conservative Calgary Shepard, AB
That reminds me of a point I wanted to make, which is that a private member's bill was passed on a Friday evening, during a sitting. There was a private member's bill passed, which was recounted in John Diefenbaker's memoirs, to change Dominion Day to Canada Day. There was an open question on whether there were enough members sitting in the House for quorum to be held, and there was a question called for quorum that the Speaker did not hear or claimed not to have heard.
To my knowledge—if I'm remembering what I read correctly—Canada Day was created on division. Beautiful words, in this case used for an unfortunate purpose.
Liberal
Conservative
Tom Kmiec Conservative Calgary Shepard, AB
Perfect. Thank you for that clarification.
That is one time when “on division” probably should not have been used, but there was also an insufficient number of members told to rise by their lobby assistants at the time. It was a different time. It was the early 1980s, and members were genuinely confused by what was going on. Ending the confusion on the floor, I would like to see that. I'm not opposed to the consideration of allowing more electronics to be built into our desks. Part of me grieves to change the way these desks function right now, because I think they're a nice part of the institution of Parliament, the way they look, the way they feel, the green that is everywhere—very traditional. It's the green we have on these chairs as well.
I think some of these things we keep, and for the same reason we have historical designations for buildings. That's why municipalities do that, to preserve bits of our history before they are torn down and replaced by something more modern, which is exactly the term used in the government's document.
I know that Calgary—lots of you have mentioned this—has been busy tearing buildings down that have a lot of history because it's busy putting up new buildings. Our history has been partially wiped away in this drive to modernize the city, expand the city's ability to densify. We've lost a lot of that tradition, that history we used to have, the LRT we used to have. Light rail used to run and the trams used to run on different streets. It has really changed the way the city looks.
The same way it's changed the look of the city, I'm afraid that by changing the Standing Orders of the House with too short a debate and without having all of us included at the table as equal members, with the certainty that we are equal members through this amendment we have proposed, we are going to lose. That's “we” as parliamentarians, not “we” as the executive. I think the executive stands to gain quite a bit out of this.
Many of us have proposed tweaks and things to study around changing the Standing Orders, but we should do this unanimously around this table so that we can produce a document that parliamentarians who are not on this committee, who have not listened to this debate, who will not read the transcript, have the certainty of knowing that we are united as one in the changes we are proposing to the Standing Orders. Each of us keeps a copy of that in our desks. I know I do because I refer to it when the clerks, or when the Speaker, or when a member makes a reference to a new standing order I have not heard of, or I have not read, or I don't remember.
It's just by chance that I found Standing Order 86(2), which I used to co-second legislation that I agreed with. I think it could be expanded for other purposes as well. There could be other things that we could do with it.
I know that we've used the example of the United Kingdom several times and the rules in the U.K. Parliament that allow for a second chamber, that allow for programming, that allow for many different things to be done. I have here an article written by the former Labour MP for Hendon, who has given the longest parliamentary speech this century. That's quite the fame.
Conservative
Tom Kmiec Conservative Calgary Shepard, AB
I'm not going to read it. I could, but I wouldn't want to then go back to other things and forget what I started with. He talked for three hours and 17 minutes to defeat a bill, so he must have passionately thought that this bill was bad for his constituents, bad for his caucus, and bad for people living in the United Kingdom. He took a stand. He's now a former member, so who knows? Maybe that contributed to his defeat, or perhaps not.
In the U.S. Senate they have different rules. He makes the comparison, too. It's a common comparison: Canada to Australia, Canada to Congress, Canada to the United Kingdom, and vice versa. They make the same comparisons. This is an article, as told to Leo Hickman, so it's a conversation between the two. He talks about the U.S. Senate. He says, “There you can read out a telephone directory when playing for time.” I have not read a telephone directory, mostly because I couldn't find one. I don't know if they exist anymore.
Conservative
Tom Kmiec Conservative Calgary Shepard, AB
It's the relevance rule, exactly, just the way they do it, and he compares it to Radio 4's Just a Minute:
You mustn't hesitate or deviate when speaking. The current rules mean it is impossible to speak for longer than four hours. I set the record for this century in 2005 when I spoke for three hours and 17 minutes, defeating a Tory bill to give householders more powers to defend themselves from burglars.
That doesn't mean householders in the sense we have here, which is the material that we distribute to our constituents by mail. He means people living in their homes. It was like a “my home is my castle” rule; you should be allowed to defend against burglars.
That was three hours and 17 minutes, debated on point, on subject, to make the point that a government bill was wrong. Now, that sounds really inefficient to me. If you go to the trouble of writing a bill, proposing a bill, getting consensus within your governing caucus, tabling the bill, and going through the motions of seeking support from everyday working people, only to then have a member being able to stand up and oppose it for three hours and 17 minutes and succeed, it sounds like a highly inefficient way of doing things.
To me, it also sounds like a way to honour Parliament, because there must have been an excellent reason for him to do that. He goes into some of the details on the difficulty he found in doing it. He says:
You are allowed to pause for three to four seconds, but it is risky to go any longer than that. Crossing your legs for the duration is essential.
Conservative
Tom Kmiec Conservative Calgary Shepard, AB
Here we are. I have appreciated the few breaks we've enjoyed today to return to the House while I rushed somewhere else.
He says:
The best thing that can happen is that an opposition member tries to make a point. This gives you time to answer it in detail before returning to your wider points. Ideally, over a three-hour speech, you would want 20-30 interventions.
I think we've had that here. We've had a kind of back-and-forth. We've heard from Mr. Simms and others occasionally to correct it.... I've prompted corrections as I've gone along.
He continues:
Arguing over the meaning of terms such as “could” and “might” is a useful delaying tactic, too.
I have forgone that need to debate the definition of “could”, or “might”, or “is”, or other definitions.
