Resolving the Crisis of Legitimacy at Toronto City Hall

Following on my repost from the archives, some thoughts about the events of the last week (inclusive of next Monday, where Rob Ford is likely to be stripped of his remaining powers and duties):

Council has,?finally, asserted its supremacy over the Mayor. We’ll see if it sticks–Rob Ford promises to challenge the council’s decisions in court, and a court may yet decide that council has gone too far. But for now, this is a partial–yes, partial–resolution of the crisis of legitimacy.

(The crisis of legitimacy, in case you don’t click on the above link, is the result of two competing claims of city-wide legitimate governance: One from the mayor, who says that he alone was elected by the people of the city; and another from council itself, which can reasonably claim to represent the city entire as well. This is a structural flaw that Rob Ford’s tenure has made apparent, but, I submit, is not easily dismissed as simply a problem with Rob Ford. Those Ford voters, after all, aren’t going anywhere.)

Monday will see Ford made, in effect, in to a councillor-at-large: he will have no special privileges except for those that provincial law requires he have, and even those won’t be administered without resistance from council. He will, in every way council currently has at its disposal, have been made powerless.

Except he won’t be powerless, he’ll still be a member of council. And he’s made it clear that he’s going to use the abilities he has as a member of council to prevent the work of council from getting done. He explicitly threatened to filibuster council in response to their discipline on Friday:

Council can take away powers they delegated to the Mayor (or rather, we hope a court agrees they can) but trying to pass Ford-specific limits on the rights of council members to hold items for debate is a lot dicier, legally speaking. So what then? Do we start limiting the rights of all members to hold items for debate, just so we can try and get around Ford’s temper tantrums?

This is ridiculous. Ford is, explicitly, stating that not only does he not have any intention of doing his job, he’s not going to allow anyone else to do his job either. This isn’t hyperbole. The role of the Mayor of Toronto as the head of council is set out in S. 133 (1) of the City of Toronto Act.

133. (1) It is the role of the mayor of the City, as the head of council,
(a) to act as chief executive officer of the City;
(b) to preside over meetings of council so that its business can be carried out efficiently and effectively;
(c) to provide leadership to council;
(d) to represent the City at official functions; and
(e) to carry out the duties of the head of council under this or any other Act.

Rob Ford has explicitly stated that he does not intend to do his job under S. 133 (1) clauses A or B. Council has made C irrelevant. They can’t technically take D away from him but he’s already sufficiently toxic that he can’t represent the city at the Santa Claus Parade or an Argos-Ticats game. So Ford, in a very literal sense, cannot do the job he was hired to.

In any other situation–with an office holder who was not merely abdicating his duties, but actively hindering them–the answer would be simple: he should be removed from office, as fast as reasonably possible. So, great news: The Premier of Ontario says that if council asks for “new tools” to resolve the Ford crisis, her door is open.

And…. nothing, from council. Denzil Minnan-Wong is still talking about this, but councillors by and large don’t seem ready to take this step. Why this should be so is beyond me. Rob Ford has done everything short of literally defecating in the council chambers, but the line from councillors is that if he isn’t actually incarcerated he should get to keep his seat.

This is a ridiculous threshold to set for public office. I’m surprised that even needs to be said. What it amounts to saying is that, short of serious crimes, the only real limit to an abuse of public trust is the abuser’s own sense of shame.

It’s also undemocratic, though many seem to misunderstand this. An election isn’t a get out of jail free card. It’s a conditional license granted by the people to represent them. Just because that license is normally reviewed at regular intervals (elections) doesn’t mean that’s the only permissible way to do so.

To put it simply: if a large majority of council asks the province for the power to remove Rob Ford from office, and that were to get unanimous consent from all three parties at Queen’s Park, you would have the elected representatives of both Toronto and Ontario voting to add accountability to the office of the Mayor. Absolutely nothing in that is undemocratic. It is, instead, a pair of democratic assemblies doing their jobs. Because Rob Ford refuses to do his.

What’s to keep this from abuse? The only thing that keeps anything from abuse in a democratic government: in the final accounting, the voters. If city council votes to remove Rob Ford from office and this so outrages the voters that they want to remove their councillors at the next election, they’ve got the opportunity to do so. But in the meantime, it’s council’s job to properly manage the business of this city.

Or, to repeat myself, it’s Rob Ford’s job but he refuses to do it, and says that as long as he’s a member of council he won’t let anyone else do it either.

To go further, I would say that council should have the power to remove the Mayor to clearly resolve the crisis of legitimacy: council should be supreme, and while it can delegate powers to the Mayor it needs to be clear that the Mayor reigns at council’s sufferance. To reiterate, I think this is a structural need, not something that should be a one-off to deal with Rob Ford.

I’d go so far as to say that council should have the power to expel any member of council who consistently and deliberately undermines the effective and efficient functioning of council, mayor and councillor alike.

If this sounds like a dangerous road to go down, let me point you to the Parliament of Canada’s description of the House of Commons:

The power of the House to expel one of its Members derives from its traditional authority to determine whether Members are qualified to sit. A criminal conviction is not necessary for the House to expel a Member; the House may judge a Member unworthy to sit in the Chamber for any conduct unbecoming the character of a Member.

Historically, members have only been expelled for criminal convictions. But that is explicitly?not the threshold the House sets.

The US Congress has the power to expel members, and the Constitution simply sets the threshold of needing a two-thirds vote?of the respective chamber. (No criminal or ethical threshold for expulsion is explicit in the text.)

What I’m saying is, the power to expel members of an assembly is properly understood as the power of any normal, mature democratic assembly. And Toronto City Council should have that power, even if councillors can’t (for reasons beyond my understanding) bring themselves to use it.

To answer a few quick questions I assume will be asked:

1) What happens next, if council removes Ford from office?

Council has an existing policy for dealing with vacancies, which we’ve already seen used recently. They can choose to appoint a successor or hold an election. Given that we’re less than a year away from the next citywide election anyway, I suspect many councillors would vote for a replacement. But the basic point is: the procedural machinery for a vacancy at council already exists, and we don’t need to reinvent the wheel.

2) What about (insert my preferred fix here)?

There are a bunch of other ideas to help make council work better. Dave Meslin has been advocating for Instant Runoff Voting, other cities use at-large councillors instead of ward systems, etc. These are all methods that deserve study, but they don’t resolve the problem we have now, or prevent it from occurring in the future.

There is no evidence that Instant Runoff Voting would have prevented Ford from becoming Mayor (contemporary polls showed Ford was the 2nd choice for many Smitherman and Pantalone voters) and absolutely nothing about his tenure in office should make you think that IRV would have changed the way Ford would have comported himself since. (To be cruel about it, he was not thinking about his poll numbers while smoking crack.)

Similarly, at-large councillors (councillors voted for by the city entire, instead of wards) don’t?on their own solve the problem of the competing claims to legitimacy. Any individual at-large councillor will still likely get fewer votes than the Mayor would, individually. (In the 2011 election, Vancouver’s Gregor Robertson got?77,005 while the leading councillor got?63,273.)

It’s possible to imagine a situation where we elected a number of at-large councillors and then selected the leading one to be mayor so long as they held a majority of council’s support, but that’s something very different from simply electing councillors differently. I’d be fine with that scenario, but I think it’s a lot farther from where we are today–and it still doesn’t solve the problem of someone (coughcoughRobFordcough) using their privileges as a member of council to obstruct the business of council.

3) What about the potential for abuse?

Every system can be abused, and most are. Abuses can be a reason for caution, but on their own can’t be a reason to avoid necessary changes. (Police abuse civilians. Few think the absence of police would be preferable.) The actual history of expulsion powers suggests that abuse isn’t something we have to worry about. The Canadian House of Commons has expelled four members in its entire history, all for the commission of crimes. 17 of the 20 members of Congress who have ever been expelled were Southern Democrats who joined the Confederacy, and expulsion for treason seems pretty reasonable. Neither chamber shows a history of political expulsion votes.

The design of an expulsion rule is important–I wouldn’t recommend a simple majority, and I’m open to other suggestions, such as a requirement for multiple votes separated by a decent interval. (Two votes within 15 days, for example.) But there’s no reason to suggest that expulsion powers, in and of themselves, are likely to be abused by Toronto City Council. They are, however, the only tool left that could actually solve the crisis at City Hall.

Wrapping up:

Toronto City Council should have the power to expel a member of council who becomes an immovable obstacle for the business of the city. Whether Mayor or Councillor, nobody should be able to hold the city and its business hostage. Arguing against this as a basic right of a democratic assembly is to argue that Toronto’s council is not a mature level of government. If there are any councillors reading this, please: You’ve insisted since amalgamation that Toronto is a responsible level of government. That has to mean something concrete, and now it means you have to ask the province for the power to expel an irresponsible member of council.

Rob Ford has long since earned his expulsion from council even aside from my concerns about the structural imbalances of mayoral and council power. He demeans his office and the offices of people around him. He humiliates council and the city as a whole. The only thing left for him to do is literally defecate on the council floor, but according to some it would be undemocratic for us to keep him from doing so. This is absurd. Representing the voters isn’t a right, it’s a privilege that emanates from our individual rights, and Ford has used up the last of his political privileges.

However, since we’re seeing the resolution of the crisis of legitimacy through council asserting its supremacy, this is a further reason to say that if the province won’t give council the power to expel any member, it at least needs the power to remove the mayor. That permanently, and correctly, tips the balance of power in council’s favor. I’m saying this now because of the current crisis, and if the Second Coming of David Miller ever smokes crack on video, hangs around with criminals and holds a St. Patty’s Day hillbilly bacchanalia at city hall, I’ll be saying the same then.

The alternative is to spend the next year as Rob Ford does what he tells us he’s going to: sue the city for his powers back, costing millions of dollars and months of time all while he does everything he can to obstruct anything he can. If that worries you less than the political risks of a more powerful council, you don’t have your priorities straight.

 

Addendum, 9:00 p.m.:

This post has already had a lot of reception on Twitter, and thank you all for that. But there’s something that needs to be stopped right now. That is our apparent inclination to believe that there must be some procedural fix to the problem Rob Ford poses short of expulsion.

There isn’t.

Specifically, some people seem to be unfamiliar with or misunderstand the Toronto City Council “hold”. Holds are council’s way of streamlining business — basically, any item not held at the beginning of council that doesn’t need to be otherwise approved at a later vote gets passed without further debate. (Items are, of course,debated at the committee stage.) The hold is the crucial first step that allows a member of council to ask questions of staff, make an amendment, and speak for or against an item. So while there might be some way to limit Ford’s ability to abuse holds, it’s not as simple as saying it–we’re talking about a fundamental feature of council’s procedures.

And council?needs this feature because Toronto City Council handles a workload unlike any other GTA municipality. Toronto-East York Community Council–just one of council’s many committees–regularly deals with over 100 items on its own. And there are three other community councils. And all the other committees. Dealing with the business of council without the hold system simply isn’t tenable.

But suppose we figure out a way to do it that passes legal muster. Then what? Do we also restrict Ford’s ability to ask questions of staff? His ability to speak on an item? To make amendments? Even if Ford’s privileges are simply restricted to the items other people hold, he has any number of ways he can filibuster the business of council.

To put it simply, Rob Ford is likely to more creative at abusing the process of council than council is at crafting a Ford-proof process.

And to be clear: it’s not the basic process of council that’s at issue here.?Rob Ford is a bad actor, who needs to be punished. Previous punishments have been ineffective, and future punishments along the same line will be equally ineffective. So council needs something stronger. That means expulsion.

From the archives: Rob Ford, the TTC, and the crisis of legitimacy at Toronto City Hall

This post was originally written in March 2012. Not all of it holds up well, but the basic thesis I think bears repeating in light of recent events. I’ll have more to say later.

The news broke late yesterday that Toronto Transit Commission Chair Karen Stintz—who, it’s good to remind people, was a staunch ally of Mayor Rob Ford’s as recently as early February—will ask council to dissolve the current board of commissioners at the TTC and reconstitute a new board of seven members from council and open four spaces for private citizens with transit expertise. This is widely, and correctly, seen as a way of wresting power over the TTC from the Mayor’s closest allies and putting control of Toronto’s transit choices firmly in the hands of Toronto City Council.

In reaction to the news, conservative Stefan Baranski (former press secretary for the George Smitherman for Mayor campaign and since then a supporter of much of Rob Ford’s policies) tweeted a fair question that started a longer discussion than what I’m excerpting here:


@adamcf and @graphicmatt go immediately to the most obvious (and not incorrect) explanation for the current political situation: Rob Ford has himself to blame for the current situation, with his total inability to build any kind of majority coalition on council. Seeing as I’ve written the same elsewhere (and Stefan accepts it without seeming hesitation) this really does explain a lot of the problem. But not all of it.

That’s right: this isn’t all Rob Ford’s fault. The problem is actually a structural flaw in the way we’ve designed city council, and especially the powers given to the Mayor since 2006.

The problem at City Hall

A bit of background for people who haven’t spent the last little while neck-deep in the City of Toronto Act and other procedural documents: it would only be a slight exaggeration to say that the office of the Mayor of Toronto, prior to 2006, was basically just a councillor that the whole city got to elect. He had substantial powers of persuasion and obviously retained an electoral mandate (so Mel Lastman ran on, and delivered, a tax freeze in the new amalgamated city of Toronto) but all the important decisions were made by council.

In 2006, as the Province of Ontario brought in the City of Toronto Act, the City’s procedural by-law was changed to give the Mayor new powers over council. One of the more important ones is the right of the mayor to name committee chairs (instead of letting committees do that on their own, or have council name them). This allows him to form the Executive Committee of his choosing (a cabinet of sorts) and keep control over the agenda in various committee to make sure nuisance items from the opposition don’t find their way to council. The Mayor also, alone among the individuals at council, can call a special session of council in his own authority to deal with matters. (Rob Ford has exercised this power when council threw up a roadblock, for example when opposition councillors denied him the 2/3 majority he needed to introduce a motion to fire the board of Toronto Community Housing.)

But some things didn’t change: the Mayor is still elected generally from the city (as opposed to councillors who are elected in 44 wards) and thus remains the only individual at City Hall with a city-wide mandate. Or, as we were incorrectly told when Rob Ford was elected, “he’s the politician who received the most votes in Canadian history.” (Factually incorrect: Mel Lastman got more votes in both of his elections than Rob Ford.)

While Rob Ford has pushed the idea of a Mayor’s mandate to absurd ends—”people voted for whatever my current political priority is this week, and I’m going to deliver what they voted for”—he didn’t invent the idea of a mayoral mandate and it’s not inherently absurd: who else can speak for the city if not the only guy in the room elected by the city as a whole?

Well, there’s council isn’t there? In fact, winning councillors collectively received substantially more votes than Rob Ford did (415,546 votes for this council as opposed to Ford’s 383,501) so if mandates spring from numbers, council can rightly claim a larger mandate than the Mayor.

There’s a more subtle form of representation that council has that simply doesn’t exist for the mayor’s office: namely, Rob Ford doesn’t really represent (or try to represent) the people who didn’t vote for him. If you’re a left-wing voter in Rob Ford’s Toronto, you’re basically out of luck in seeing anything come out of the Mayor’s office that you like. But when we vote for council, the city-wide effect means that even if you live in, say, Mike Del Grande’s ward you can root for someone like Glenn de Baeremaeker to represent Scarborough from the more left-wing position.

And that, basically, is the recipe for the situation we have right now: a formally powerful council that has had enough with the Mayor’s claim to speak for the city, and is in the process of taking charge. (The TTC is only the first step. Important committees like the Budget Committee will be next, I’m sure) But the Mayor still has the bully pulpit and the political fact of his individual city-wide mandate.

There’s a word for this in political science: a crisis of legitimacy.

The Perils of Presidentialism and Crises of Legitimacy

Let me get one thing out of the way right now. I am not saying that Rob Ford is an illegitimate mayor. I’m sure others have, but Rob Ford won an election and holds his office legitimately. It’s not clear that the election was entirely fair—Ford may yet be found guilty of having broken election finance laws—but that’s not relevant for the kind of legitimacy that I’m talking about now.

Rather, we have an inherent conflict between two competing claims of who gets to speak for Toronto as a whole: the Mayor, who was directly elected by the city at large, or the council which was elected collectively, but in 44 parts. This is exactly the kind of problem that is common in Presidential political systems. That is, systems that follow the American political model of a separately elected executive and legislative branch of government, as opposed to the British (and Canadian) model of Parliamentary governance where the executive is elected from within the legislature.

(The seminal text on how Presidential systems inherently lend themselves to legitimacy crises is “The Perils of Presidentialism” by Juan Linz, but the underlying issue has been a permanent concern in US politics. A 2001 article by Bruce Ackerman essentially says that the post-Charter Canadian system comes closest to a perfect fusion of crisis-free governance while protecting minorities, which is nice for us.)

A classic crisis of legitimacy goes something like this: President is elected on a new, perhaps radical, platform; legislature throws up roadblocks to his policies; crisis develops. It ends one of two ways: the President uses his powers to neuter the legislature (see Boris Yeltsin dissolving the Russian White House with tank shells) or the legislature neuters the President (not as many examples of this, though post-2004 Ukraine briefly looked like it might after the Orange Revolution). The crisis can only be resolved one way: the fundamental issue of who speaks for the electorate has to be settled.

In Russia, this was settled by putting enormous power in the hands of the President (even before the Putin era). In British systems the House of Commons is elected by the country, and whoever keeps the confidence of the House stays the Prime Minister. No more crises in either case because the issue is settled, though obviously most liberals would have other complaints about how Yeltsin settled the Russian legitimacy crisis.

Toronto’s legitimacy crisis

With the generic framework of a legitimacy crisis understood, we can see how it applies to Toronto and Rob Ford: this isn’t simply a case of a bullying politician unwilling to understand the limitations of his office, it’s a substantial structural flaw in the way we’ve built our government in this city. It’s as serious a defect as if we’d built an uneven foundation on a home. It’s an issue that will continue to dog Toronto City Council so long as the issue of who speaks for the city is left unsettled. What it isn’t is an individual problem with Rob Ford.

This crisis arguably began with transit when the mayor dismissed Transit City without a vote in council (a vote he would have almost certainly won, in one of Toronto’s enduring political mysteries), heightened when council had to take over the Port Lands file from Doug Ford’s blundering, was ratcheted further when the Mayor’s office refused to make a deal on the budget, and now we’re where we are on the transit file.

We’ve failed to understand that the status quo is actually the worst-case scenario: the transit fight that is brewing later this month is likely to decide something on Sheppard avenue that (a) will be won or lost on the narrowest of margins and (b) if council decides against a Sheppard subway extension, won’t have the support of most of Scarborough councillors, meaning that thanks to the crisis of legitimacy the argument won’t be settled and we’ll keep blundering through this fight until at least 2014.

But the crisis isn’t going to end later this month with transit. Every. Single. Decision. From here on out everything the city does is going to be decided on an absurd, ad hoc basis as the mayor attempts to win whatever votes he can by dangling something in front of one councillor or another. Toronto’s going to lurch from one battle to another as the two sides at council try to poach votes from the centre.

And in all the chaos, anyone who’s spent the last few years arguing that Toronto needs the political and financial tools to govern itself properly instead of as a ward of the province is going to die a little inside each day.

So what’s the fix?

We have basically two choices, and as an expert witness I’d like to call on Doug Ford, councillor for Ward 2. One option is to move further powers to the Mayor’s office, such as a veto over council, the hiring and firing of high-level city staff (despite recent events, the Mayor individually does not have this ability) and other powers—in short, the typical American strong-mayor system. Itself a more intense form of American presidentialism. Doug Ford endorsed exactly this idea early on in the new council’s term.

But Doug Ford also understands that the other way to have a system that allows a government to enact its mandate is the Parliamentary model, telling the Toronto Sun in February “When you have a clear mandate provincially, you have a team and you have a leader you get to move it forward”. Bringing a parliamentary system to council would be relatively simple, though at the moment it’s illegal under the City of Toronto Act. Simply have the Mayor elected by council from among its members. Whoever retains the loyalty of a majority of council is the mayor.

Either one of these ideas seems to horrify various elements of Toronto’s commentariat. We’ve always elected a Mayor! Except that the