The McGill Law Journal recently published a paper of mine, “‘Third Parties’ and Democracy 2.0”, (2015) 60:2 McGill LJ 253, about which I haven’t yet had the chance to brag here. Unfortunately, I won’t be able (pursuant to the Journal’s policy) to upload the full text of the paper to SSRN for a while. But I want to talk about it now anyway. I’ll introduce it in this post, and talk about some of its themes in greater detail in subsequent ones.
Here is the abstract:
Although the Supreme Court of Canada has described freedom of political, and especially electoral, debate as the most important aspect of the protection of freedom of expression in Canada, no debate in Canadian society is so regulated as that which takes place during an electoral campaign. Parliament has set up—and the Supreme Court has embraced—an “egalitarian model” of elections, under which the amount of money participants in that debate can spend to make their views heard is strictly limited. “Third parties”―those participants in pre-electoral debate who are neither political parties nor candidates for office―are subject to especially strict expense limits. In addition to limiting the role of money in politics, this regulatory approach was intended to put political parties front and centre at election time.
This article argues that changes since the development of the “egalitarian model” have undermined the assumptions behind it and necessitate its re-examination. On the one hand, since the 1970s, political parties have been increasingly abandoning their role as essential suppliers in the marketplace of ideas to the actors of civil society, such as NGOs, unions, and social movements. On the other hand, over the last few years, the development of new communication technologies and business models associated with “Web 2.0” has allowed those who wish to take part in pre-electoral debate to do so at minimal or no cost. This separation of spending and speech means that the current framework for regulating the pre-electoral participation of third parties is no longer sufficient to maintain political parties’ privileged position in pre-electoral debate. While the current regulatory framework may still have benefits in limiting (the appearance of) corruption that can result from the excessive influence of money on the political process, any attempts to expand it to limit the online participation of third parties must be resisted.
And here is the summary of the paper from the introduction:
I begin, in Part I, by reviewing the Supreme Court’s two major decisions on third-party participation, Libman and Harper. In Part II, I describe in more detail the “egalitarian model of elections … premised on the notion that individuals should have an equal opportunity to participate in the electoral process” without regard to wealth, which the [Canada Elections Act, the] CEA and these decisions embrace. In Part III, I explore the assumptions that the CEA and the Supreme Court make about the nature of the political process and the central role that political parties play in it. Then, in Part IV, I describe the changes that have occurred in politics since the framework for regulating third-party participation embodied in the CEA was first conceived. I illustrate the effects of these changes by using the 2011 federal election as an example and show that the assumptions behind the CEA’s framework are no longer valid. This challenges the privileged position of political parties in pre-electoral debate. In Part V, I focus on another, more recent change that I describe as the separation of spending and speech: the emergence of new technologies and business models, in particular those associated with “Web 2.0”―social networks, blogs, video sharing services, and the like―which make it possible for third parties to communicate with large numbers of voters without spending much, if any, money. Finally, in Part VI, I explore the implications of these changes for regulating third-party participation in pre-electoral debates. I conclude that what might be called “electoral campaigning 2.0” does not, in itself, require radical changes to the current legal framework and only suggest two limited amendments to the CEA. Nevertheless, the changes in politics and technology that I describe are significant. Ignoring them is likely to lead scholars, legislators, or judges to unrealistic, and possibly pernicious, conclusions about the law of Canadian democracy. (257-58; footnotes omitted)
I actually posted my favourite (because somewhat flippant), passage from Part III ― the one describing the assumptions behind our current model of election regulation back when I first wrote it, almost three years ago. It takes the metaphor of the “level playing field,” which is key to the Supreme Court’s election law jurisprudence, and considers what happens on ― and around ― that field. The answer is that, in our system, political parties play on the field of pre-electoral debate, while everyone else is expected merely to look on, though the media, in particular, is allowed to cheer. In upcoming posts, I will discuss in more detail the changes, political (Part IV of the article) and technological (Part V), that should lead us to re-think the old assumptions on which our regulatory framework rests ― and which are also, I think, independently important.