Rule by the second-place: the coming crisis of legitimacy in federal politics

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Then again, maybe the Liberals do need to worry. No doubt there were plenty of sighs of relief in government circles after those four by-elections last month, where the party not only held onto the seats it had but increased its share of the popular vote.

But since then there have been a spate of opinion polls showing the party continuing to slide in public support. Nanos, Abacus, Ipsos, Mainstreet, Angus Reid: all show the Liberals from five to eight percentage points behind the Conservatives. Liberal support remains mired below 30 points, on average – the lowest it has been since they were first elected, in 2015.

The regional numbers (again, taking the average of several recent polls) are still worse. The Liberals have lost the lead they once enjoyed in Ontario. In recent weeks, they have also fallen behind the Bloc in Quebec, while in British Columbia they now stand third, behind both the Conservatives and the NDP. The only region where they remain clearly in the lead is Atlantic Canada.

And yet: as things stand, they are still the party most likely to form a government after the next election. Recall that the Liberals managed to win the last two elections without winning the popular vote. Indeed, the Liberals’ 32.6-per-cent share of the vote in 2021 was not only more than a percentage point less than the Conservatives’, it was the smallest popular mandate any government has received in our history – smaller even than the 33.1-per-cent share the Liberals recorded in 2019.

The Liberal vote is that much more efficiently distributed than the Conservative vote. Even today, the seat-modelling site 338Canada.com has the Liberals projected to win 144 seats – far from a majority, but 10 more than the Conservatives are projected to win and enough, with the support of the NDP, to allow them to carry on governing.

Plus, as they say, campaigns matter. The Liberals have been down before – they entered both the 2015 and 2019 campaigns trailing in the polls – and have come out on top. They may yet do so again.

But here’s what’s new. There is a real chance of them forming a government next time, even if they don’t win the most seats: finishing behind the Conservatives, that is, not only in the popular vote, but also in seats won. We have had plenty of minority governments before, especially in recent times: five of the past seven, 11 of the past 22. But in these at least the governing party won more seats than any other. Welcome to the age, perhaps, of non-plurality government – “defterocracy,” rule by the second-place.

Only once before has this been tried: After the 1925 election, when Liberal prime minister Mackenzie King, beaten by six points in the popular vote and with 15 fewer seats than Arthur Meighen’s Conservatives, insisted on holding onto power, over the reservations of the Governor-General, Lord Byng. And we know how that turned out. Months later, facing defeat on a crucial vote in the House of Commons, King demanded Byng dissolve Parliament and call an election. Byng refused, and asked Meighen to form a government in his place, igniting the crisis known as the King-Byng affair.

Whatever may be thought of his conduct in the latter business, King had a right to try to form a government in the first instance, notwithstanding the election result. Having been confirmed as prime minister by the previous parliament, he remained prime minister until such time as the new parliament voted otherwise. Moreover, as the head of a minority government – the first in Canada’s history, after the inconclusive 1921 election – he had demonstrated an ability to work with the Progressive Party to get legislation passed. It was not unreasonable for him to seek to hold onto power, though it was unprecedented.

But the Trudeau Liberals would be even more well-placed to make the attempt. For where King had governed with the informal co-operation of the Progressives, the Liberals would be able to cite the more formal precedent of their supply-and-confidence agreement with the NDP – itself a first, in federal political history, though not unknown in provincial politics.

Assuming the NDP were game to repeat the arrangement, the Liberals could make a persuasive case that they stood a greater chance of forming a stable government than the Conservatives. Given the special loathing the present Conservative Leader, Pierre Poilievre, excites among progressives, moreover – the sense, often expressed, that he represents something new and dark in Canadian politics – they may well feel entitled, if not morally obliged, to do whatever it takes to keep him away from the reins of power.

So while normally prime ministers do not try to carry on after an election defeat, even where there remains an arithmetic possibility of governing – see Louis St. Laurent in 1957, John Diefenbaker in 1963, Pierre Trudeau in 1979, Paul Martin in 2006 – it would not be entirely surprising to see Justin Trudeau, or his successor, make the attempt. Certainly he (or she) would be entitled to try, not only as the incumbent prime minister, but on the basis of his/her ability to command the support of a majority of the members of Parliament – the only relevant constitutional standard.

That doesn’t mean it wouldn’t cause a ruckus. Indeed, there is every prospect of a deep crisis ensuing. The Liberals could cite constitutional principle all they liked, but in attempting to govern from second place they would still be pushing the limits of popular legitimacy. And if there is one thing we know about the present-day Conservative Party, it is that they delight in pushing limits themselves.

We don’t have to speculate too much about this. We already know what the Conservative position is: The party that wins the most seats governs, period. We know this because the issue has come up before. In the “coalition crisis” of 2008, the Liberals, in coalition with the NDP and with the support of the Bloc, attempted to bring down Stephen Harper’s minority Conservative government and replace it, by leave of the Governor-General, without an election. It was, after all, just two months since the last one.

It was entirely legal, but spectacularly illegitimate – not only because of the involvement of the Bloc, but because of the remarkably weak position of the Liberals, fresh from one of their worst election defeats in history: With just 77 seats, they would not have held a majority within their own coalition. Not to mention that their leader, Stéphane Dion, had just pledged to resign. Public opinion revolted, the prime minister prevailed upon the Governor-General to prorogue Parliament, and the Liberals lost their nerve.

Ever since, the Conservatives have raised the spectre of an “undemocratic” coalition attempting to “overturn the results of an election.” It was a feature of both the 2011 and 2015 election campaigns, in which it was anticipated the Conservatives might win the most seats, but not a majority. The point, one supposes, was to scare wavering centrist voters into the Conservative camp: better a “strong, stable” Conservative majority, they were encouraged to believe, than a “risky, unstable” coalition.

But had the Conservatives in fact won a minority, it was not unreasonable to expect a repeat of the 2008 experience, if not King-Byng: the Conservatives, defeated in the House, refusing to yield power; the Governor-General perhaps this time siding with the opposition; the government appealing “over her head” to public opinion, everyone drawing lines in the sand, with who knows what result.

In the event, the worst-case scenario did not arise: the Conservatives won a majority in 2011, as the Liberals did in 2015. But the issue has not gone away, not least because there appears to be no expert consensus on how such a crisis should be resolved.

The current situation is a little different, in that the Liberals are in power: Should they win fewer seats than the Conservatives in the next election, they would nevertheless be the incumbents. The Tories might put up a fuss, but once the prime minister had met the House and won a vote of confidence, with the help of the NDP, there would seem little they could do.

That doesn’t mean the Conservatives would not try everything in their power to call the government’s legitimacy into doubt, appealing to precedent and popular belief – the government is the party that wins the most seats – over constitutional principle: The government is the party that has the support of a majority of the House.

We should not assume they would not find a sympathetic hearing, at least among partisan Conservatives. It is one thing for Conservatives to accept that they are unlikely to win a majority (they have only managed it five times, after all, in the past 100 years). But to be told that they will not be permitted even to form a minority government may be more than many of them can bear. The danger of this resulting in some sort of crisis is real.

The longer the Liberal-NDP arrangement endures, and the more solidified it becomes, the greater the danger. So long as the Liberals and NDP remain separate and independent parties, with distinct agendas and interests, the Tories could always dream of fluking into a majority: all they needed was the vote to split just right. At the very least, they could hope to form a strong minority government, and bluff their way through, à la Harper in 2006-11. But if the present agreement is a sign of things to come – a more or less permanent Liberal-NDP alliance – that possibility recedes from view.

If the upper limit on the Conservatives’ share of the vote is 35 per cent to 40 per cent; if the remainder (aside from the smaller parties) should henceforth be viewed not as being divided between two parties, but as a single progressive voting bloc, to be configured and reconfigured into formal or informal coalitions in which the only question is how many seats will be Liberal and how many will be NDP; if there is no possibility for the Conservatives to win power, ever, then we all have some thinking to do: the Conservatives, most of all.