A great many things have been said about Senate independence of late, and most of them wrong. Stephen Harper stood up in the House last week to say that the Senate is independent, otherwise those three Senators would be out of a job. This is mostly true. Evan Solomon crowed loudly that the Duffy emails about Marjory LeBreton’s office coordinating with the PMO “shattered the myth” of Senate independence. That is largely untrue. Senator James Cowan, the Liberal leader in the Senate, told Don Martin last week that he doesn’t take direction from Justin Trudeau, but they do consult – which is actually more the model of how things should be run. But the underlying issue is that currently there is a problem with the independence of the Upper Chamber, but the bulk of the responsibility for this lies at the feet of Stephen Harper.

One of the most defining qualities of the Senate is the fact that Senators, not having to worry about the electoral cycle or contorting themselves to fit the whims of an electorate, can detach themselves from some of the day-to-day partisan concerns of the Commons, and take a more independent look at the issues at hand. It’s where much of the “sobriety” of their second look comes from. This longer-term perspective also means that senators tend to get better with age. Like any politician, they come in with a dogged enthusiasm, and many a Senator is keen to ingratiate themselves to the PM who appointed them. It’s not an unnatural instinct, though everyone is keen to throw partisan mud over it. But unlike MPs, who tend to keep up their own devout backing of their leader for a host of reasons (most of them illegitimate, and issues like signing off nomination papers does need to change), Senators don’t face those same pressures as MPs do, and soon start to flex their independence. In fact, by most accounts, it takes about three years for a Senator to fully acclimatise into their position, and we’re already seeing this happen with some of the early appointees like Richard Neufeld or Don Plett, who have taken stands against the leadership on different issues.

But there is a further complication, for which Harper is entirely to blame. When he was first elected, he came in on the high-minded notion that he wasn’t going to appoint Senators unless they had been “elected” by a provincial process, as was the case in Alberta. Other than Michael Fortier, of course, because they had no Montreal representation in cabinet, and he needed a viable workaround, and Fortier became it. And when an Alberta seat opened up, he appointed Bert Brown, who had been “elected” in a dubious process by any account, to great fanfare. Meanwhile, the Conservative caucus in the Senate continued to dwindle by attrition, and those remaining Senators were soon overworked and exhausted, each pulling duties on three or four committees at a time rather than the usual one or two, and they simply didn’t have the numbers to get the work of the Senate accomplished. Not that this would sway Harper – he had made this vow of only appointing “elected” Senators, and to hell with Section 24 of the Constitution that lays out the fact that Senate appointments are in fact an obligation and not a mere option for him to exercise.

And then came the coalition crisis of 2008. Faced with the possibility that an opposition coalition could take power and start appointing their own Senators, Harper panicked and appointed eighteen senators in one fell swoop. As events have since dictated, many of those appointments – Wallin, Duffy, Brazeau – have shown to have been done without sufficient due diligence, seeing as the Harper PMO was unaccustomed to a rigorous process for vetting Senators, or with enough foresight to see when vacancies are coming due and looking ahead to who would be a good choice to fill them. No, they were going to let provinces handle that, and if they didn’t well, too bad. Until suddenly that was no longer feasible.

The thing with a body like the Senate is that it can easily absorb two or three people at a time. Absorbing eighteen – almost a fifth of its membership – in a single go, strained the system severely. One fifth of members eager to do the bidding of the PM who appointed them, believing that they can be whipped into submission (as though there were the consequences that face MPs), it created an opportunity for the PMO to start exerting more control. After all, why not? As the number of appointments continued to grow to 57 in less than five years, a full half of the Senate’s membership is still “junior” in the institution. They haven’t fully learned their roles in the broader parliamentary system, or the level of independence that they actually enjoy. It also gave the Senate leadership – until recently Senator Marjory LeBreton – a heavier hand with which to keep them in check. (On a side note, imagine how this kind of shock to the system would be made permanent with many of the electoral proposals being floated currently, where a sizeable portion of its membership would be turned over in defined terms. It would allow for yet more party control of an institution whose independence is crucial to its mandate).

“I have to give credit to Marjory – words never thought I’d say – in that she had a tough time dealing with all those new senators,” one senator told me in conversation once, shortly before LeBreton’s resignation as Senate leader. Only now are some of those senators finally settling into their roles, but given their early exposure, most still haven’t fully absorbed the proper institutional lessons. And it’s this ability of the PMO to exert its will, where new senators in the Conservative caucus outweigh the old Mulroney appointees who have the institutional knowledge, that has created this crisis of independence, which led to the kinds of scenes where the PMO could have LeBreton threaten her caucus members into falling into line – and make no mistake, she was, which was part of why those senators went rogue on the vote against Bill C-377 in the spring. “Senators don’t like taking orders from staffers who are younger than their own children,” that same senator told me.

And now Harper is looking to repeat his mistakes. First of all, by appointing new Senate leadership that has a mere four years of experience, and who clearly don’t have the workings of the institution internalised, he hoped to keep that level of control in place, only to see that now blowing up in his face as their ham-fisted amateurism around the suspension-without-pay motions were completely mishandled. Add to that the fact that he is pledging not to make any more Senate appointments at this time, despite there being five vacancies currently, is setting up for a repeat of the January 2009 experience, where a glut of new appointments will be made, further straining the system before the first batch have fully been absorbed into the workings of the Chamber.

The Senate fundamentally is not a broken institution, but it is under strain. While some kind of changes to the appointment process are the likeliest kind of reform that we’ll see in the near future, as it’s highly unlikely that the Supreme Court will rule that anything less than the 7/50 amending formula of the constitution would be necessary to make the kinds of changes that Harper is proposing, we should beware repeating the mistakes of the past. I’m sure that there are plenty of conspiracy theories out there about how Harper wilfully broke the Senate in order to force a reform agenda, but I frankly having a hard time seeing it. What I do see is a kind of myopia and ignorance as to the realities of the institution and how that mishandling has caused the kinds of problems that we’re seeing today. None of it is irreparable with time and attention, but we can’t keep making the same mistakes and hoping for a different outcome.