Election Ringside, April 20: Constitutional facts, or hypotheticals?

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Election Ringside is a daily e-mail exchange for The Globe and Mail between strategists Tom Flanagan and John Duffy. Check in every weekday afternoon during the 2011 federal election campaign for their insights and opinions about the campaign as it unfolds.

From: John Duffy Sent: Wednesday, April 20, 9:06 a.m. ET To: Tom Flanagan Subject: Election Ringside

Tom,

Michael Ignatieff probably won't win too many plaudits for spelling out the constitutional facts of life on Tuesday. But I think what he did was necessary and smart. It is also somewhat urgent.

Necessary in the sense that Mr. Harper is likely to spend the campaign's final 10 days railing against "the coalition," and Mr. Ignatieff can now at least ground his replies on solid constitutional footing. Mr. Harper has benefited immensely from ignorance about minority options. A good deal of fearful odium has built up in those obscure corners; airing this matter out should take some of that away. In a world where the Conservative campaign will fearmonger a government of socialists and separatists all the way to the finish line, truth is really the only defence.

I also think what Mr. Ignatieff has done may turn out to be smart. He has now shoved the onus back on the Prime Minister to back up his implication that the only possible government is one formed by the party with a plurality.

Maybe that's not Mr. Harper's view. The problem for the Conservatives is that if the Prime Minister accepts that non-plurality government is possible, the patina of illegality with which the idea of a non-Conservative parliamentary combination has been splattered could be scrubbed away. Once Mr. Harper accepts the constitutionality, the assertion of illegitimacy gets rather tougher.

Then there's the serious and urgent part. If it turns out that Mr. Harper really does believe that a non-plurality government is unacceptable, we're into another world here. That would amount to a view so far at odds with the actual constitution as to threaten a crisis. We saw the edges of this frightening scenario materialize in 2008, with threats of separation, street action and assertions of extra-constitutional force majeure. Is that where the Conservatives will head if cornered in Parliament?

One way or another, it is clearly time for Mr. Harper to define his objections, if any, to the idea of a Liberal attempt at government without a plurality in the event of a Conservative plurality government's defeat in Parliament. If his concerns are confined to policy and direction, great. But if they go further than that, hold on to your hat.

Tom, what do you think the answer is? Does the Conservative Party accept the constitutional legitimacy of a below-plurality government?

From: Tom Flanagan Sent: Wednesday, April 20, 2011, 11:11 a.m. ET To: John Duffy

Hi John,

There's no point in discussing constitutional hypotheticals right now. We have to remember that constitutional conventions are formed by what office-holders such as the prime minister and governor-general do in concrete situations. That's why conventions can evolve over time.

There's no point in self-proclaimed experts trying to say with 100-per-cent certainty what these conventions are, because they don't exist in the abstract. Personally, I'm happy to rely on Governor-General David Johnston to make his decisions if the need arises. As a law professor with substantial experience in public affairs, he's probably the best qualified Governor-General we've ever had to deal with this type of situation.

The debate right now should be political. Here, I agree with you that we should all be grateful to Mr. Ignatieff for spelling out his willingness to form a government even if the Liberals win fewer seats than the Conservatives - unlike Paul Martin, who immediately announced that he would resign after losing the 2006 election. However, we need to think clearly about what such a government would be.

I call it a "virtual coalition." I take Mr. Ignatieff at his word that he would not form a coalition (in the sense of sharing cabinet seats) with anyone and would not make a formal agreement with the BQ. However, given every poll that we've seen, the only way to construct a majority without the Conservatives will be for the Liberals, NDP and Bloc to vote together. It can't even work with the Bloc abstaining, because the Conservatives will have more seats than the Liberals and NDP put together.

Such an arrangement, in which each of three parties has veto power, cannot last long unless it is managed behind the scenes with continual tripartite negotiations. That's why I call it a "virtual coalition." It is a fantasy to think that Mr. Ignatieff could govern for any length of time on a case-by-case basis. That would work only if the Conservatives would vote for his measures from time to time, and I doubt they would after having been dislodged from government in this way.

I take my guidance here from the greatest of all Liberal prime ministers, William Lyon Mackenzie King. He said in 1926 that the opposition parties would be unable to govern, and he was proved right in four days. He was also criticized by constitutional experts. Stephen Harper is Mackenzie King without a ouija board.

From: John Duffy Sent: Wednesday, April 20, 12:39 p.m. ET To: Tom Flanagan

I don't want to be churlish, but the constitutional hypotheticals you describe are exactly the ones that Mr. Harper has made so much hay of. He inserted them into the campaign's opening days and the televised leaders' debates. I imagine he'll be talking about them a lot more. So I don't think he'll be in much of a position to refuse to discuss hypotheticals.

That said, I certainly agree that Mr. Harper knows his Mackenzie King. (And by the way, I generally share your admiration for King; nice to hear that from a Conservative.) He'll know, then, that King actually did govern from below a plurality from 1925 until 1926. So there are federal as well as provincial precedents for non-plurality governments.

I'd just like to hear Mr. Harper acknowledge that. He is welcome to challenge the politics of a parliamentary combination, as you do, but his attempt to delegitimize any government that isn't Conservative is dangerous. Let him affirm the legitimacy and go to town on the policies and stability. That would be healthy. Instead, Mr. Harper continued Wednesday to refuse to accept the legitimacy of a non-plurality governing scenario. Which really does lead to the crucial question: Will Mr. Harper respect Canada's Constitution?

A more serious question can hardly be imagined.

Tom Flanagan is professor of political science at the University of Calgary and a former Conservative campaign manager. John Duffy is founder of StrategyCorp and a former adviser to prime minister Paul Martin.