Why Andrew Weaver (and everyone else) should support card check certification


Last week, BC Green Party leader Andrew Weaver stated his unequivocal opposition to the NDP’s proposal to reinstate the old card check system for union recognition. Instead, Weaver prefers the current system of secret ballots. Weaver’s position is not terribly unusual in BC, but I believe it is badly mistaken. Fortunately, I don’t think the proposal to reinstate card check is dead quite yet; it may very well be possible for the NDP to rustle up support from among the Liberals (consider that even federal Conservatives have occasionally cast pro-labour votes) and the other members of the Green caucus. In this post, I will summarize both systems and make a case for card check against some common criticisms. If you find it persuasive, please pass it along to your MLA or communicate your support for the change in your own words.

Under the current system, instituted by the Liberals shortly after they came to power in 2001, 45 percent of workers in a proposed bargaining unit must sign membership application cards that explicitly authorize the union to apply for certification as the exclusive bargaining agent for the workplace. Once this threshold has been met, the cards are submitted to the Labour Relations Board as part of the union’s application for certification. If the LRB verifies that the cards are authentic and that the proposed bargaining unit is viable, a secret ballot election must be held within 10 days. If a simple majority of workers voting in the election cast their ballots in favour, the union will be certified and must be recognized by the employer.

The card check system raises the threshold of authorization cards required for certification, but forgoes the balloting stage. A union need only prove that more than 50 percent of workers in the proposed bargaining unit have signed authorization cards. If the rest of the application checks out, the union is automatically certified. The employer may even be unaware that a union drive is taking place until the threshold is met and the application is submitted. Proponents of card check argue that this system provides vital protection against illicit means of preventing employees from unionizing, including threats and intimidation by employers and managers.

Because of the federal division of powers in Canada, rules for certification may vary across the country. Workers in provincially regulated industries are subject to provincial labour law, while workers in federally regulated industries are subject to federal labour law. Up until 1977, all jurisdictions in Canada used the card check system. But currently, Alberta, British Columbia, Nova Scotia, Ontario, and Saskatchewan use some version of the balloting system (although Alberta may soon transition to a hybrid model where a supermajority of workers signing authorization cards allows the union to bypass the balloting stage). At the federal level, in the three territories, and in the provinces of Manitoba, New Brunswick, Newfoundland and Labrador, Prince Edward Island, and Quebec, the card check system is in use.

There is no clear national trend favouring one set of rules rather than another. Under Social Credit, BC adopted mandatory voting for a time before reverting to the card check system when the NDP came to power in 1993, and then implementing mandatory voting once again in 2001 after the Liberals formed government. Federal workers were briefly brought under mandatory voting rules in the dying days of the Harper government before card check was restored by Justin Trudeau’s Liberal majority. In Ontario, the governing Liberals’ recent left turn has emboldened the provincial labour federation’s push to restore card check in the province, while in Manitoba, the Progressive Conservatives’ return to power is expected to lead to the adoption of mandatory voting.

Although it is impossible to say whether there is a national trend towards card check or towards mandatory voting, the forgoing should make it apparent that there is a clear partisan divide on the issue. Centre-left governments support card check and oppose mandatory voting; centre-right governments support mandatory voting and oppose card check. There is an equally clear divide between workers’ and employers’ organizations: employers’ organizations favour mandatory voting, while workers’ organizations favour card check.

The usual criticism of the card check system is that it provides inadequate protection for workers’ freedom of association. The divisions noted above warrant some skepticism about critics’ actual motives, but in what follows I will mostly assume that both sides share genuine concern for the right to freedom of association, and differ mainly on how this right is best promoted and protected. Many critics of card check are sincere in their motives; as I will show, however, their criticisms are without merit.

One objection to card check which features prominently in the debate on the issue is that secret ballots are a fundamental requirement of democracy. Because card check forgoes secret ballots, then, it follows that the certification process is undemocratic. This may sound compelling at first, but with a moment’s consideration it should be clear that secret ballots are an exception in the democratic process, not the rule. Only a small proportion of all votes are conducted by secret ballot, in special circumstances where secrecy is of the utmost importance in ensuring an accurate accounting of voters’ true preferences. Secrecy is sometimes instrumentally useful in the democratic process; there is no intrinsic value to secret ballots. Thus, whether the secret ballot system is preferable in this case will depend entirely on the instrumental considerations to which I now turn.

This article from the Fraser Institute provides a representative example of free association-based instrumental arguments against card check. The authors, Niels Veldhuis and Keith Godin, argue that card check exposes workers to intimidation and harassment by pro-union employees. If workers can be pressured into signing membership cards, there is a significant risk that the majority threshold can be met without a majority of workers having made a truly free choice to support the application. Moreover, because an application may be made before an employer learns that employees are considering forming a union, the employer has no chance to present a case against unionization. This means that even in the absence of intimidation and harassment, workers will be unable to make a truly informed choice. Velhuis and Godin dismiss the argument that employers may exploit the opportunity to campaign against the union by threatening, intimidating or harassing workers themselves, noting that such practices are not permitted under BC’s Labour Relations Code. Under the mandatory voting system, even if workers can be bullied into signing authorization cards, they still have the opportunity to freely express their true, informed preferences in a secret ballot. The mandatory voting system is therefore far more conducive to workers’ freedom of association.

Oddly, however, Veldhuis and Godin cite studies showing that a higher proportion of union drives fail in jurisdictions using the mandatory voting system, as though this offers further support for their case against card check. In fact, proponents of card check often cite similar findings. They differ with Veldhuis and Godin only on the significance of the data. Veldhuis and Godin see the data as supporting the claim that workers aren’t as fond of collective bargaining as unions would have us believe. But this reasoning is viciously circular. The inference depends on acceptance of their conclusion that secret ballots are better at reflecting the true preferences of workers. And if the inference depends on that conclusion, then it cannot be cited in support of that conclusion.

Another problem with Veldhuis and Godin’s argument is that it assumes employers’ compliance with the Labour Code at a level sufficient to defeat concerns about employer threats and intimidation, while failing to extend the same assumption to unions’ and pro-union employees’ compliance with the Labour Code or the Criminal Code. If the mere existence of certain provisions of the Labour Code are sufficient to allay concerns about employer threats and intimidation, why are they — and the far more severe penalties doled out for criminal harassment — not sufficient to defeat concerns about threats and intimidation from the union side?

In any case, I think we should also ask why the authors would rely on assumptions of compliance by either side. As noted above, certification rules in Canada have varied from place to place and time to time, and these variations provide ample empirical evidence on the actual relative risk of intimidation and harassment from employers and employees. In the debate on Bill C-4, which reinstated card check at the federal level, Rodger Cuzner noted that in four thousand decisions by the Canada Industrial Relations Board in the ten years prior to the adoption of mandatory voting at the federal level, there were only two findings of union misconduct during certification drives; in fact the CIRB found more instances of employer misconduct during this period. Comparative studies at the provincial level provide further support for the hypothesis attributing the decline in union density under mandatory voting regimes to employer intimidation rather than increased freedom for workers to express their true preferences.

What about Veldhuis and Godin’s complaint that card check deprives workers of the opportunity to consult sources of information about the costs and benefits of unionization? This claim depends on the assumption that workers have only two sources of information available to them — the union and the employer — and this assumption is obviously false. Workers have many sources of information available to them, including their coworkers, their social networks, libraries, employers’ organizations, and even think tanks like the Fraser Institute. Moreover, if an employer has some kind of privileged information that could have bearing on workers’ decision to unionize, they may freely share such information whenever they so choose. And if the complaint is really that the employer doesn’t get a chance to make their own case against a union — not for the workers’ benefit, but for their own — then it’s fair to ask why we should assume that employers have any such entitlement which the card check system fails to respect.

As I’ve shown, then, critics have failed to make the case that the secret ballot system better protects and promotes workers’ freedom of association than card check. But because secret ballots are not intrinsically superior from a democracy perspective, concern for freedom of association is the only basis on which secret ballots could be required. Since concern for freedom of association does not in fact justify mandatory secret ballots for certification, card check should be preferred by all who cherish the right to freedom of association.

Criteria of identity and the nonidentity problem

If you think the non-identity problem is tough for humans, thank your lucky stars you’re not a Time Lord. Art by Matt Ferguson

In a previous post, I addressed a particular challenge that the non-identity problem allegedly poses for T. M. Scanlon’s contractualist ethics. I argued that the non-identity problem only seems to threaten contractualism if one conflates the subject matter of contractualist ethics (i.e. what we owe to each other) with the hypothetical standpoints we take up in reasonable deliberation about moral principles. The identities of actual persons can depend on our actions, but the identities of these evaluative standpoints do not. These standpoints can therefore serve as fixed positions from which alternative principles for treating actual persons can be assessed.

I’m fairly comfortable with this strategy for avoiding the non-identity problem, but I’m increasingly troubled by the metaphysics of personhood implicit in the non-identity problem as it is usually formulated. This unease was recently triggered by reading a recent article by Dominic Wilkinson and Keyur Doolabh at Aeon, which features a number of statements like this:

If Kate had delayed her pregnancy until, say, age 20 [instead of age 14], her child would have been conceived from a different egg and sperm. Because of this, Kate would have a genetically different child, and Annabel would not have existed.

The issue here, according to the non-identity problem, is that Annabel is no worse off for having been born, but intuitively Kate has reason to delay having a baby until she is 20. But Kate’s reasons to delay pregnancy can’t possibly stem from concern for the welfare of her child if the identity of her child depends on the timing of her pregnancy. Assuming having a child at 14 or 20 will be no better or worse for Kate herself, her reasons must be essentially impersonal — concerned with the quality of some state of affairs, rather than the welfare of any particular person.

As an example of the non-identity problem, this is perfectly fine. But I was struck by the weakness of the key assumption that the identity of Kate’s child depends on the timing of her conception. The non-identity between Annabel and the unnamed future child (let’s give her a name: Bananabel) is explained as a function of their genetic differences. Certainly this explains the non-identity of Annabel and Bananabel considered as mere organisms. But in the non-identity problem, we’re not concerned with mere organisms as such, we’re concerned with persons. Personhood is a moral concept, not a biological concept. Showing that Annabel and Bananabel are not identical organisms, then, does not yet establish that they are not identical persons.

The claim that Annabel and Bananabel are different persons because they are genetically different organisms seems to depend on a biological view of personal identity. On this view, Annabel and Bananabel are the same person only if they are the same (numerically identical) organism, and they are the same organism only if they are genetically identical. We can leave the merits of this view aside for now; I will only note that this view of personal identity is extremely unpopular among philosophers working in ethics-related fields. That doesn’t mean biological views are wrong. But it does suggest that for the vast majority of philosophers (including the majority of philosophers working on the non-identity problem!), the non-identity problem should never arise.

Without the biological view, it’s not clear how we can assert the non-identity of Annabel and Bananabel. The most popular alternative is the psychological view, according to which Annabel and Bananabel are the same person only if they share certain psychological characteristics (e.g. dispositions, memories, plans and intentions), perhaps with the condition that these characteristics have sufficiently similar causal histories. But I think most people will want to say that Annabel and Bananabel would both begin to exist as persons before they have any psychological characteristics that could differentiate them. So I’m not sure the psychological view can shed much light on the identity of merely possible persons.

What kind of view of identity helps make sense of the scenarios discussed in non-identity problems, then? In the first paragraph, I distinguished between actual persons and evaluative standpoints. But it occurs to me now that in the cases like that of Annabel and Bananabel, a person just is an evaluative standpoint. Annabel and Bananabel, considered as persons, are identical by virtue of occupying the same evaluative standpoint, and lacking any characteristics that could otherwise distinguish them. From this standpoint, a principle permitting Kate not to delay her pregnancy could be reasonably rejected.

Panpsychism and vitalism about stellar objects: a response to Matloff

That’s Mr. Golden Sun to you

According to an influential argument for mind-body dualism, it is conceivable that there could be creatures that are structurally identical to us and behave identically to us, but entirely lack consciousness (inner experience, or qualia). In the philosophical vernacular, these creatures are known as philosophical zombies, or p-zombies. From the mere possibility that there could be such creatures, it follows that consciousness must be distinct from the physical structures with which it seems to be so strongly linked (including, at the very least, the physical structures of the brain). Irreducibly mental properties or substances are necessary to explain consciousness, even if these properties or substances are invariably connected at a very deep level with physical properties or substances.

According to most dualists, such connections are extremely rare. Descartes, for example, argued that only human brains are linked with mental substance. Other dualists grant the possibility that animals and sufficiently complex computers might also have mental properties. But some dualists take the extreme view that wherever there is matter, there is bound to be mind, if only in an extremely rudimentary form. This is panpsychism (which I’ve discussed in a number of previous entries, including here, here and here).

In an article at NBC, Corey S. Powell reports that a physicist, Gregory Matloff, has published a paper arguing that the behaviour of cooler (and therefore more structurally complex) stars can be explained by attribution of rudimentary consciousness. Cooler stars’ galactic orbits are faster than those of hotter stars; Matloff’s hypothesis is that this is explained by cooler stars’ deliberate choice to orbit the galaxy at a quicker pace, perhaps by means of emitting a unidirectional particle jet of a kind observed in young stars. Matloff calls this the volitional star hypothesis. If the volitional star hypothesis finds further support, he argues, panpsychism could emerge from philosophy to become a part of the natural sciences, like astrophysics.

One problem with this approach is that it contradicts the conceivability argument. Matloff’s hypothesis requires that some stellar behaviour cannot be explained by physical structure alone. It follows from this that there could be no stellar p-zombies — stars that are structurally and behaviourally identical to normal stars, but lacking even rudimentary consciousness. If one believes that physical structure alone cannot account for even the simple behaviour of stellar objects, then it would be unreasonable to believe that physical structure alone could account for the far more complex behaviour of human beings. Matloff’s reasoning commits him to a kind of non-physicalism, but it is a kind that is significantly less popular these days than any variety of mind-body dualism.

It seems clear to me that Matloff’s hypothesis is not dualist in the ordinary sense of the term. The puzzle dualists are concerned with is consciousness, not behaviour. But the puzzle Matloff’s hypothesis addresses is a puzzle about stellar behaviour, and consciousness itself seems to play no role in the proffered explanation. The volitional star hypothesis is better understood as a kind of vitalism rather than dualism, I think. Unlike dualists, vitalists think that a non-physical explanation is needed for certain physical behaviour, namely biological phenomena. Matloff may not be a vitalist about biological phenomena, but he does seem to be a vitalist about astrophysical phenomena.

I find it unlikely that there is any more merit in vitalism about stars than there was in vitalism about plants and animals. Explaining the behaviour of cooler stars may require some new physics, but I can’t see why no physics (no matter how radically revised) could explain this behaviour. A stellar élan vital is, at best, nothing more than a placeholder for whatever future physics fully explains stellar behaviour (and at worst, pure pseudoscience); assuming that physics remains a realm of fully impersonal facts, we should assume that this placeholder is also fully impersonal.

This is not to say that Matloff is wrong to ascribe some rudimentary consciousness to stars. Panpsychism is, in my view, far more plausible than any alternative explanation of consciousness in humans, and it may well imply that some stellar objects have some limited kind of consciousness. The point is simply that in the search for an explanation of stellar behaviour, ascribing consciousness to stars is neither necessary nor helpful, and in the search for an explanation of consciousness, observations of stellar behaviour have nothing to contribute.

Now more than ever, I was right all along


A couple of days ago, I read a column by Matt Taibbi in which he asserts that dissatisfaction with the status quo means there is no future for the political centre. Today, I read a column by Geoff Plant in which he asserts that dissatisfaction with the status quo means that the political centre is the future. Both columns, I would argue, are clear instances of a phenomenon sometimes called “now-more-than-ever-ism” (a coinage attributed to Lawrence Summers). David Autor (cited here by Joseph Heath) summarizes it like this:

  1. You have a set of policies that you favor at all times and under all circumstances, e.g., cut taxes, remove regulations, drill-baby-drill, etc.
  2. You see a problem that needs fixing (e.g., the economy stinks).
  3. You say, ‘We need to enact my favored policies now more than ever.’

This kind of reasoning seems to straddle the line between unconscious confirmation bias and deliberate rhetorical technique. New developments are interpreted and presented as bolstering the case for a position the writer already holds, when in fact the validity of that interpretation depends on the truth of the position in question. Now-more-than-ever-ism purports to give political opponents or neutral parties reasons to adopt the writer’s position, but the reasoning is circular: unless one reads the conclusion into the supporting premises, the argument is logically invalid.

This is precisely the problem with Taibbi’s argument: centrism is a failure because there is widespread dissatisfaction with the status quo, caused by the failure of centrism. Suppose you’re reading this as a card-carrying political centrist. Because the conclusion that centrism is a failure is unsupported without the premise that centrism is a failure, Taibbi’s argument won’t have given you the slightest reason to change your political views.

Interestingly, appeals to dissatisfaction with the status quo have been a persistent theme in successful campaigns by centrist politicians over the last twenty years. Rhetoric and slogans about breaking with the past figured prominently in the campaigns of Blair, Obama, Cameron, Trudeau and Macron: “a new dawn”, “hope”, “change we can believe in”, “forward”, “real change”, a “democratic revolution”. Even if centrist policies are a cause of problems with the status quo, centrists have been more successful than most at capitalizing on dissatisfaction with the status quo to acquire political power.

Unsurprisingly, then, centrists tend to see things differently than Taibbi, which brings me to Geoff Plant. Plant’s diagnosis is the exact opposite of Taibbi’s. The objectionable features of the status quo, in his view, are a product of political polarization — parties abandoning the centre in favour of the left and right. But although the diagnosis is different, the reasoning is the same: polarized politics is a failure because there is widespread dissatisfaction with the status quo, caused by the failure of polarized politics. The right kind of politics is centrist politics, because centrist politics is the right kind of politics.

I think now-more-than-ever-ism is politically toxic, for two closely related reasons. First, it is the worst kind of preaching to the choir. Preaching to the choir — producing, consuming and discussing ideologically informed commentary, theory, history and art — is often a positive thing, to be sure; every great political ideology develops its own intellectual culture, and tends to thrive when that intellectual culture thrives. Now-more-than-ever-ism is the exception, containing nothing but empty affirmations masquerading as insight. There is an opportunity cost here; any time spent on this kind of thing would be better put to almost any other use.

But in addition to the deleterious effect on a political movement’s internal culture, I think there is a credible risk of harm to the broader political culture in which these movements are embedded. Arguments such as Taibbi’s and Plant’s purport to appeal to reasonable people who do not necessarily share their ideologically commitments to begin with. But partisans who deploy these arguments in political debate will be disappointed to find that people who do not already share their views are totally unpersuaded. Because partisans would only try to use these arguments if they failed to notice the circular reasoning, they may conclude that those who are unpersuaded are not reasonable. To the extent that democratic politics is about reasoning together (and surely this is partly what democratic politics is about, even if it is not the whole story), it is plausible that encouraging the impression that other people are unreasonable could negatively affect the health of a democracy.

Clarifying the confidence convention in fixed-term parliaments


As I discussed in my last post, Britain’s Fixed-term Parliaments Act 2011 means that early elections can only be called if a number of MPs equal to two thirds the number of seats in the House of Commons pass a motion calling for parliament to be dissolved, or if the House of Commons passes a motion of no confidence in the government and, within the next fourteen days, does not pass a motion expressing confidence in the government.

In a column at the New Statesman, Stephen Bush argues that the changes the FTPA brought about will give the Democratic Unionist Party unprecedented leverage over the governing Conservatives. The DUP has agreed to support the Conservatives on matters of confidence and supply. But in Bush’s interpretation, the FTPA means that defeat on the Queen’s Speech, supply bills, and bills otherwise designated as matters of confidence are no longer sufficient to bring down the government. If the DUP is only obligated to support the government on the budget and any explicit motions of no confidence moved by the opposition, they are free to oppose everything else in the government’s legislative program. By sustaining the government in office but threatening to block every attempt to pass legislation, the DUP is in an excellent position to extract major concessions from the Conservatives.

Bush may be correct to claim that the DUP will enjoy unprecedented influence in this parliament, but I think he is badly mistaken in his interpretation of the FTPA’s consequences for the confidence convention. The source of the error is common enough. The reasoning seems to go something like this.

  1. If the House of Commons passes a motion of the following form, then government has lost the confidence of the House: “That this House has no confidence in Her Majesty’s government.”
  2. Losing a vote on the Queen’s Speech or a supply bill does not involve the House passing a resolution of this form.
  3. Therefore, if the government loses a vote on the Queen’s speech or a supply, the government has not lost the confidence of the House.

The reasoning here is logically invalid; it commits the formal fallacy of denying the antecedent (“if P then Q; not P; therefore, not Q”). The FPTA limits the circumstances under which loss of confidence may trigger an election, but it does not limit the circumstances under which the government ought to be regarded as having lost the confidence of the House. The claim that loss of confidence can only be expressed by a motion of the type set out in the FTPA is not supported by the text of the act, the accompanying explanatory notes, the relevant portion of the Cabinet Manual (paragraph 2.19), or the scholarly literature on the subject. If the government is defeated on the Queen’s Speech, a supply bill, an issue otherwise designated as a matter of confidence, or a government-initiated confidence motion, the prime minister must resign and make way for an alternative government or, if none is available, seek dissolution by means of a motion calling for an early election.

Why Theresa May cannot call another election


A rare sight: Queen Elizabeth II delivering the Speech from the Throne in the Canadian Senate chamber in 1977

Most Canadians are probably aware that, like BC, the UK has just elected a hung parliament — a parliament in which no single party has an overall majority. The governing Conservatives, under the leadership of Theresa May, have struck a confidence and supply agreement (the same kind of alliance the NDP has formed with the Green Party) with the Democratic Unionist Party in Northern Ireland, hoping to continue in power as a minority government. The two parties have a combined majority of seats, but the Mirror has reported that Jeremy Corbyn, leader of the opposition Labour Party, thinks he may still be able to muster enough votes to oust May in the vote on the Queen’s Speech (the British version of our Speech from the Throne), perhaps with support from Conservative backbenchers. The Mirror article goes on to say that the government’s defeat “could trigger another election as the Tories would face a confidence challenge.”

That brings us to a major difference between the constitutional contexts in BC and the UK. In our case, there would be no new election because there is a clear alternative available if the governing party is defeated. But if it seemed that no party could win the confidence of the house, the lieutenant governor would grant a request for dissolution and a new election. Until relatively recently, this was also the case in the UK. But it has not been the case since 2011, when the Conservative-Liberal Democrat coalition passed the Fixed-term Parliaments Act (hereafter the FTPA).

The FTPA replaces convention-based limits on the prime minister’s right to advise dissolution (and the monarch’s power to grant it) with strict legal limits. The timing of regular scheduled elections is defined by law. An early election may only be called in two kinds of circumstances. The first is if a motion calling for an early election is passed in the House of Commons by an absolute majority of two thirds (i.e. there must be two thirds as many votes as there are seats in the House of Commons, not just two thirds of MPs present for the vote). The second is if the House of Commons passes an explicitly worded motion of no confidence (the exact form of which is defined by the FTPA) and does not pass a similarly explicit motion of confidence within fourteen days (that is, if no alternative government can be formed within the following two weeks).

Assuming that the convention treating the vote on the Queen’s Speech as a matter of confidence survives in the post-FTPA era, then, the Mirror is mistaken. The government’s defeat cannot possibly trigger another election. The government would be forced to resign, having failed to win the confidence of the new House of Commons. But there would have been no motion of no confidence, so the fourteen-day countdown would not be triggered. In all likelihood, Corbyn would be asked to try to form a government. But if he too was defeated in the vote on the Queen’s Speech, he would not have the option to request an election either. Barring some ridiculously unlikely arrangement like a grand coalition of the major parties, the Commons would have to vote to dissolve itself in order to resolve the deadlock.

Kumar on contractualism and aggregation


Rahul Kumar, from “Contractualism on the Shoal of Aggregation” in Reasons and Recognition: Essays on the Philosophy of T. M. Scanlon, pages 148-150:

Recall, for instance, a case mentioned earlier concerning the choice of locating a chemical research facility in a large urban center or in a sparsely populated rural area: intuitively, the facility ought to be located in the sparsely populated rural area, though the consequences of an accident are much worse for any of the local population than it is for any of those living in the urban center. Structurally, however, this type of case is different from that of Rocks: in that case, the implications for each of the rescuer’s choice are the same. But in this case, the potential burdens are not equal. And intuitively, it seems that it is the greater number, each [standing] to have to bear the lesser, though comparatively morally relevant, burden that can complain of being wronged if exposed to the risk that the chemical research facility creates.

Though a detailed exploration of how to account intuitions of this type of case using contractualist resources goes beyond what I can undertake here, it is worth briefly considering what kinds of resources might be marshaled for the task. First, it is relevant that the above chemical factory case is one that involves the imposition of a risk of harm rather than the imposition of harm. Those living in the rural area may, therefore, stand to suffer a greater harm if the risk materializes as harm yet be less likely to suffer harm than those living in the urban setting. This may have to do in part with a sense that those living in the rural rather than the urban setting have a better opportunity to avoid being harmed (it being easier, for instance, for them to get out of harm’s way).

Second, though those living in the urban center will not each be as seriously harmed by an accident at the chemical research facility, the significance of their being harmed may not be exhausted by the harm each incurs. The proper functioning of a large urban center could be considered an irreducible, non-exclusive public good: one that cannot in principle be realized without a great many people doing their part and contributed to the lives of both those who participate in realizing it and those who do not. Appealing to the possible implications of a proposed principle for the availability or accessibility of a public good, which may supervene on the fact that a great number of individuals stand to be harmed, does not violate the individualist restriction in the way appealing to the mere fact of the number who stand to be harmed clearly does.

Such a strategy might be used to understand the basis of an intuition to which Scanlon draws attention in his discussion of aggregation, that it might be wrong to save a life rather than saving millions from paralysis or blindness. Depending on how the details of the case are filled out, however, a further, third strategy is available. Say that the one will be saved or millions saved from paralysis or blindness depending on how certain public resources are deployed by state officials. A case might be made on grounds of the duty of the state to concern itself with public health for state resources being deployed in a way that balances the importance to those subject to the state’s authority of having the resource in question deployed in a certain way with the number of citizens who will be benefitted from the resource being deployed in this way. A principle governing state action that is sensitive to the number of persons who stand to be affected is compatible with the individualist restriction as long as the justification of the principle relies not [on] the fact that a great many stand to be benefited, but on an account that connects the interests of a citizens with the state attending to public health concerns in a way that is sensitive to the numbers of persons in question.

[…]At the heart of deontological or non-consequentialist ethical theory, as Christine Korsgaard puts it, is the thought that the ‘subject matter of morality is not what we should bring about, but how we should relate to one another.’ In this respect, Scanlon’s contractualism is avowedly deontological, emphasizing the importance to the morally motivated of standing in a particular type of relationship to all others, one of mutual recognition.

It is one thing, however, to note the general relational character of the contractualist outlook but quite another to keep the importance of the point in view when working through substantive moral questions in a contractualist mode. This is particularly true, I believe, in the case of the discussion of how to make sense, on contractualist terms, of the intuitive relevance of aggregative considerations. In thinking about the relevant kinds of cases, we are naturally drawn to focusing on the possible outcomes of different choices, and from there it is easy to find oneself thinking that what is of central moral importance is what outcome obtains.

[…M]any of the challenges to the plausibility of the contractualist account in its current form that the intuitive relevance of aggregative considerations are thought to present are rooted in attaching an importance to facts about outcomes that is at odds with contractualist thinking. Careful attention to the relational character of the contractualist account […] allows us to both make better sense of contractualism’s rejection of the relevance of aggregative considerations and start to see how the seeming relevance of such considerations in certain cases can be explained using contractualist resources.

What is music education good for?

Lisa Simpson striving to develop the human capital needed to succeed in the new innovation-sharing new economy jobs of the new tomorrow, which is new

This article on music program cuts in public schools turned up in my Facebook “memories” feed today, along with the following remarks. The broader issue is as current as ever and I still believe what I wrote, so I’m re-posting here in lightly edited form.

In the article, celebrated music teacher Hans Fenger is quoted saying:

Music and art are activities which allow children to think in a more abstract way … a kind of thinking that allows children to be more open to new ideas, to be more retrainable.

Music and art are those subjects that create citizenship in a school, gives kids a sense of belonging, gives kids a sense of working with other kids together, and it gives your school the kind of feeling that you want to be there.

It troubles me that even the most committed advocates of music in our schools feel compelled to make their case by talking about how being in a band makes you more “retrainable”. I don’t believe for one second that the production of especially retrainable labour resources is what motivates anyone who teaches or performs in a school band or choir. I think these people actually feel that music is a worthy activity and a good in itself. The instrumental value of music programs (no pun intended) is real, and it’s important, but setting aside the non-instrumental values at stake concedes far too much.

Certainly the school system is about preparing children for adult working life, adult civic life, and adult social life. But it’s also a place where children live their actual lives, and I think we should want the children in our society to have actually valuable things in their lives, not just things that will eventually turn out to be useful for acquiring unspecified actually valuable things at some point down the road. So, for example, schools should have resources to support healthy social relationships among students, not just because this will make them easier to work with when they get a job with other people, but because healthy social relationships are part of a good life for a child. They should have classes in math, languages, sciences, history, etc. not just because mastery of those subjects opens economic opportunities in the future but because knowledge is a good thing, and growing in knowledge is part of a good life for a child. And they should have classes in music and art not just because these engage the kind of faculties that might one day be used to build a better mousetrap, or work on a team that is building a better mousetrap, or retrain to work on a team that is building a better mousetrap, but because making music and art is part of a good life for a child. Schools are for the good of the people, and children are people. This should be the starting point for an argument in defence of music in our schools, not a footnote to it.

Why BC should not hold another election right away: a response to David Moscrop

I think we’re all starting to feel like this

At Maclean’s, political scientist David Moscrop argues that the impasse over selecting a Speaker for the incoming Legislative Assembly should be broken by calling a new election in the hope of achieving a more decisive result. The problem, if I understand Moscrop’s view correctly, is that the likely alternative to a new election is to select a partisan Speaker who consistently breaks tie votes in the government’s favour. This would be a profound breach of the Speaker’s traditional impartiality. But the legislature depends on the Speaker’s impartiality to ensure procedural fairness in the business and administration of the legislature, and the legislature’s legitimacy as a democratic institution depends in part on reliably meeting such expectations of fairness. Damaging the Speaker’s impartiality, then, threatens to damage the legislature’s legitimacy as a democratic institution. This is not to be done lightly, and there is a far simpler and more innocuous alternative available: the issue can be resolved easily just by having another election right away.

Moscrop argues that this course of action looks even more attractive when we consider the tenuousness of any prospective governing arrangement in this legislature, even if the deadlock over the Speakership is resolved or the cost of politicizing the office is deemed acceptable. The result of the May 9 election has no special status as an expression of “the people’s will” (nor could it, as the evidence suggests that “the people’s will” lacks determinate content). Whatever the result of the new election turns out to be, it will be just as democratically valid as the result of the last one, but with the probable advantage of yielding more stable options for government — a single party majority, perhaps, or another hung parliament where an alliance of parties would collectively form a decisive majority.

I share Moscrop’s concern about breaking the convention of the Speaker’s impartiality, and his skepticism about the special status of the May 9 election result. In the end, however, I think the concern for fairness and the integrity of our democratic institutions that motivates Moscrop’s case against breaking convention actually better serves the case against having another election.

To begin with, I think it’s important to note that this “impasse” is largely speculative. The members of the Liberal caucus have reportedly all declined nomination, but until nominations are actually open — that is, until the legislature convenes — we don’t really have any idea what they’ll do. If the issue of who should become Speaker is as politically momentous as we’ve been led to believe, then pronouncements from all parties about what they intend to do when the house meets should be regarded with a good deal of skepticism. If, on the other hand, the issue is not as politically momentous as we’ve been led to believe, then there’s little reason to think all 43 Liberals will actually pass up the nomination.

Suppose, however, that the Liberals stand firm, a Speaker is selected from among the other two parties, and he or she proceeds to consistently break ties in partisan fashion. Two kinds of damage may result. The first, which is a dead certainty, is the immediate damage to this particular Speaker’s credibility as an impartial administrator and presiding officer of the legislature — and, by extension, to this legislature’s credibility as a procedurally fair democratic institution. The second, which is quite uncertain, is the possible long-term damage (lasting beyond this parliament) to the office of Speaker. This could include damage to the credibility and effectiveness of the Speaker as an impartial actor, or to the normative expectation that the Speaker ought to be an impartial actor.

Moscrop’s case for a new election clearly depends on at least one of these kinds of harm resulting from breaking the convention of impartiality under the current circumstances. If the harm he envisions is the long-term damage of the office of Speaker, I think he owes the reader an account of why this kind of damage should be expected. To make a successful slippery slope argument, it is not enough to stand at the top of the slope and point to the bottom; you have to actually show that the slope is in fact slippery. Every purported justification for breaking convention in this case depends on the extremely unusual particulars of our situation, which are unprecedented in the province’s history and unlikely to be repeated any time soon. Moreover, everyone offering justifications for breaking convention in this case agrees that a strong justification is needed. An impartial Speakership is very important; departures from convention should not be made lightly, and if there are any departures from convention, they must to be tightly circumscribed so as to be minimally disruptive to the Speaker’s traditional role. Given that these facts are widely accepted among those advocating a departure from convention in this case, it is not at all clear why we ought to expect any long-term damage to the office. As long as this piece of the puzzle is missing from Moscrop’s argument, his case can only depend on the urgency of avoiding immediate damage to the credibility and legitimacy of the Speakership in the incoming parliament.

How serious would this damage be? One way of assessing the damage would be to ask whether all affected parties would find the negative consequences acceptable, given the beneficial consequences. The burden of working with a partisan Speaker would fall primarily on the Liberals, and to a lesser extent the Greens (who remain in opposition despite their agreement with the NDP). The cost of avoiding the scenario where a partisan Speaker is selected is mild for the Liberals (given the size of their caucus) and very large for the Greens (who would have to sacrifice a third of their caucus and their arrangement with the NDP). The Liberals following through on their pledge not to stand for the Speakership translates into tacit consent from the party that stands to lose the most from having a partisan Speaker and have ample opportunity to avoid this scenario at the lowest cost to themselves. Under the circumstances, it seems that even the Liberals view a partisan Speaker as the best option under the circumstances.

This does not yet show that selecting a minimally partisan Speaker is preferable to an election, however. All parties in this legislature may agree that a partisan Speaker is the best of the available options, but the idea behind having a new election is to bring in a new legislature with a better set of options. Even if everyone in the new legislature could agree to a partisan Speakership, considerations of fairness and democracy favour a new election that returns a result that can command something more enthusiastic than the grudging acquiescence of the parties involved.

This strikes me as an unrealistic view of electoral democracy, however, because in an adversarial system like ours, grudging acquiescence to the distribution of power in the legislature is actually the norm. In order to avoid the same impasse after a new election and achieve a result that is preferable in the view of at least one party, at least one party would have to lose seats. The only way to make one party happier is to make another party sadder. To bring about a result that can command something more enthusiastic than that grudging acquiescence of all the parties involved, we don’t need another election, we would need an altogether different system of government (although what that would actually look like, I can’t begin to imagine).

If the case for a new election appeals to considerations of fairness and democracy, it is also reasonable to ask how fair and democratic a new election is likely to be. BC’s political finance laws are notoriously lax. Thanks to the support of rich individuals and businesses, the Liberals’ campaign fund dwarfs those of the NDP and the Greens. This puts the NDP and Greens at a serious disadvantage at the best of times; if one election follows another in close succession, the result could be devastating, while imposing greater burdens on the relatively low income constituencies on which the other parties must rely to finance their campaigns. As a theorist of deliberative democracy, Moscrop must be keenly aware that such a a result would not necessarily reflect the public’s considered judgment of the other parties’ worthiness. As the godfather of deliberative democracy, John Rawls, noted:

The liberties protected by the principle of participation lose much of their value whenever those who have greater private means are permitted to use their advantages to control the course of public debate. For eventually these inequalities will enable those better situated to exercise a larger influence over the development of legislation. In due time they are likely to acquire a preponderant weight in settling social questions, at least in regard to those matters upon which they normally agree, which is to say in regard to those things that support their favored circumstances…. What is necessary is that political parties be autonomous with respect to private demands, that is, demands not expressed in the public forum and argued for openly by reference to a conception of the public good. If society does not bear the costs of organization, and party funds need to be solicited from the more advantaged social and economic interests, the pleadings of these groups are bound to receive excessive attention. And this is all the more likely when the less favored members of society, having been effectively prevented by their lack of means from exercising their fair degree of influence, withdraw into apathy and resentment. (A Theory of Justice, Original Edition, pages 225-226)

Considering how seriously the fair and democratic character of the electoral process itself is compromised under the current political finance regime, I do not think that considerations of democracy and fairness obviously favour a new election over a temporary departure from convention.

In summary, then, to avoid committing a slippery slope fallacy, Moscrop’s argument for a new election must depend on the immediate negative consequences of a partisan speaker. However, these immediate negative consequences could only materialize if the Liberals — the party that stands to lose the most from those consequences —find them acceptable on balance and continue to refuse the Speakership. The public has certainly has good reason to be concerned about the ability of a minimally partisan Speaker to fairly administer and preside over the legislature. But given the state of political finance rules in BC, the values of fairness and good democratic practice that ground this concern should actually militate against calling a new election.

How long could Clark stay in power… in the Twilight Zone?


Days after the Greens and NDP signed a confidence and supply agreement that seems sure to bring down the Liberal government, some progressives’ exuberance has turned to doubt. The thought seems to be something like, “Our side doesn’t really get to win, does it?” Partly to try to inoculate my friends against this kind of sentiment, and partly because there are some interesting technical details to consider, in this post I’ll take a look at the most extreme option available to the Liberals if they really want to hold on at all costs.

Although Premier Clark has declared her intention to convene the legislature this month and given every indication that she will step down in the likely event that her government is defeated on the throne speech, a number of commentators have pointed out that she would technically be within her rights to delay the final reckoning for a while longer. The real deadline is supposedly at the end of September, as this is when the money authorized by the spring supply act is expected to run out. But in fact, it is theoretically possible for the government to last well into the new year, thanks to (relatively) obscure provisions in the Financial Administration Act concerning the issue of special warrants. To be clear, I don’t think this is at all likely to happen here in the real world. But it may still prove educational to take a little trip and see how the election aftermath might unfold in the Twilight Zone.

Special warrants, drawn up by cabinet and signed by the lieutenant governor, authorize government spending in excess of the amounts authorized by the legislature. They can only be issued under certain conditions. First, the legislature must not be in session. Second, the funds must either be urgently required to respond to a natural disaster, or the legislature must be dissolved for a general election. Whereas the federal law on special warrants fixes the end of the election period at 60 days after the deadline for the return of the writs, BC’s Financial Administration Act defines the general election period as ending “90 days after the first post-election appointment of the Executive Council.”

Although there’s been a lot of talk in the media (and to some extent even from politicians) about the possibility of Clark “forming government”, the fact is that as the incumbent she has no need to form government. She did that when she became the premier several years ago, and she’s been in power continuously since then. The law regarding special warrants shows why this point is not merely of interest to pedants. Because Clark and her ministers are already in government, and there has been no post-election cabinet shuffle, the 90 day countdown to the end of the election period (for the purposes of the Financial Administration Act) has not yet begun, and it will not begin until some new ministerial appointment is made (or Clark resigns and there’s a wholesale change in government). So unless Clark decides to shuffle her cabinet some time in the near future, she will still be able to request special warrants to cover the bills when the money runs out at the end of September.

Obviously this would be a gross abuse of the right to request special warrants, which are intended only to keep the government running and able to respond to public emergencies when the legislature is not available to authorize new spending. It would be the height of paranoia to suspect that the Liberals are considering anything so far-fetched. Still, it can’t hurt to get the facts right, and you never know when those facts are going to turn out to have a lot of practical relevance. To give an obvious example, for years reporters have been rolling their eyes at people who asked them not to use terminology suggesting that governments are elected. Having misrepresented the basics of parliamentary government for so long, when the BC election returned a hung parliament they found themselves scrambling to explain the system from the ground up. So, for the record, the true outer limit on the government’s ability to stall is set by section 5 of the Charter, which requires a sitting of the legislature at least once every twelve months. That means the legislature must be convened no later than March 16, 2018.

Update on June 12, 2017: This is now a moot point, because a number of new cabinet ministers were appointed today. This begins the 90-day countdown to the expiry of the authority for issuance of special warrants.