The Separation of Spending and Speech

I commented yesterday onVincent Marissal’s column in La Presse about the impact of social media on the upcoming election campaign in Québec – and the way in which the social media undermine the regulation of the electoral process that limits the electoral expenses of “third parties” – citizens, groups, or organizations that are neither political parties nor candidates for office. I want to return to this topic, focusing now on its theoretical, rather than its practical, implications.

The current schemes for the regulation of electoral campaigns in Canada are premised on the idea that one must, generally, spend in order to speak – or at least, in order to make one’s speech heard by any significant number of people. So long as this premise holds, a limit on electoral spending is a limit on electoral speech. And, subject to a few exceptions (such as the publication of letters to the editor or op-eds in newspapers, at the newspapers’ expense), which were also exempt from the electoral regulations, that premise did in fact hold true until the advent of social media.

It no longer does. A tweet might be read by thousands, even hundreds of thousands of people. A YouTube video can be seen by millions. And their authors will not have to pay a dime for the dissemination of their messages. Spending and speech have come apart – and a key assumption underlying the regulation of elections in Canada no longer holds true. So what becomes of our current regulatory schemes? Should we discard them as obsolete? And if so, what should we replace them with?

The answer to these questions depends on the purpose for which we regulate electoral campaigns. The trouble is that our current regulations have not one, but two purposes On the one hand, as I noted in an op-ed Cyberpresse published in April, our electoral regulations aim to suppress the influence of money on the electoral process, which they assume to be unfair and/or pernicious. On the other, they aim, as I suggested in a recent post, to put political parties at the centre of the electoral process, by consigning “third parties” to the margins. These two purposes worked together so long as spend-to-speak model of electoral communications held, because limiting electoral expenses by third parties served both. But now it no longer does. It still works to reduce the influence of money, but limiting or prohibiting electoral expenditures by third parties no longer prevents them from speaking, loudly and to very large audiences, though social media. That is a central point of Mr. Marissal’s column – political parties can no longer be sure of controlling the electoral debate, and outsiders can easily play an important role in it.

So if our main concern is with the role of money, we can keep our electoral regulations as they are. Indeed, they are arguably less troubling now than they once were, since they do not actually prevent people from speaking out on political issues. In effect, they only direct that third parties must, during election campaigns, speak through social media. Only, I wonder if such a rule has any point. It is not money, after all, that our current regulations try to subdue, but the people who have a lot of it, individually or collectively. And if these people are able to speak anyway, through social media, what do we care to prevent them from spending their money on something they can get for free? If, however, our concern is to maintain the party- and candidates-centred model of elections, the current regulations are obsolete and utterly inadequate to the task. New rules are required – as well as the will and the means to police their application to the internet’s wilderness. I doubt that our governments have either.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

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