The Law of Permanent Campaigning

Election law might have help create permanent campaigns. Can it be used to solve their problems?

The regulation of “money in politics” in Canada follows a bifurcated approach. Fundraising by political parties is subject to strict regulations that apply evenly throughout the electoral cycle. (There are special rule for candidates in elections and party leadership races.) By contrast, the expenditure of money by parties, as well as candidates, and so-called “third parties” ― which is to say, everyone else ― is only regulated, and very tightly regulated at that, during election campaigns, but not at other moments. Indeed, I once wrote that

the free discussion so essential to the existence of democracy and of parliamentary institutions is at no point so constrained as during electoral campaigns. No debate in Canadian society is so regulated as the one at the heart of our parliamentary democracy and thus of the protection of the freedom of expression.

This regulatory approach was developed at a time when election campaigns were mercifully short, and not much electioneering took place outside of the immediate pre-election “writ period”. But what happens if this is no longer so? What if the campaigning becomes “permanent”, to use a word that has been popular for a while now? The Conservative Party of Canada, under Stephen Harper’s leadership, is sometimes said to have brought the permanent campaign to Canada, but everybody’s doing it now, as Anna Lennox Esselment points out in a Policy Options post. The post is only an overview of a book that prof. Esselment has  co-edited with Thierry Giasson and Alex Marland. I have not read it yet ― I will eventually ― so for now I can only venture a couple of comments about prof. Esselment’s post.

One point worth making is the links prof. Esselment makes between “permanent campaigning” and the way in which party leaders are being put at the centre of politics. That political parties have become primarily tools for the promotion of individual leaders is a point made by Bernard Manin in his book on The Principles of Representative Government; I have, I think, shown that it applies with full force to Canada in my article on  “‘Third Parties’ and Democracy 2.0”, where I looked at the 2011 election campaign. (I summarized that part of the article here.) The development of the “permanent campaign” exacerbates this trend, though it did not create it; the days when parties could be seen as the “supermarkets of ideas” that Pierre Trudeau once thought they ought to be are long gone. As I argued in my article, we should not pretend otherwise, and take that into account in revising the ways in which we regulate the democratic process.

Regulation is the subject of another of prof. Esselment’s observations. She points out that “the rules regulating party financing” are among the “factors … contributing to the permanent campaign”. Once rules were in place to prevent “corporations, unions and wealthy individuals” from financing political parties,

the need to fundraise directly from [large numbers of] individual Canadians became a driving force in party operations. Knowing who might donate, how much and when is now crucial.

This in turn fuels the parties’ need for data about voters and potential donors (as well as people who might provide other forms of support). Prof. Esselment notes that this data gathering creates concerns about privacy, and she is right, of course. But another point worth emphasizing is that the story she tells illustrates the inevitability of unintended consequences. The permanent data-hungry campaign was not what those who clamoured for restrictions on party financing were looking to get, but they got it anyway. Their attempts to solve one (perceived) problem, though they may have been successful, also helped create a different one. A whole set of problems, actually, as prof. Esselment explains, having to do not only with the behaviour of parties as organizations, but also with what they do in, and to, Parliament.

This leads me to the final issue I will raise here. Prof. Esselment suggests that more fiddling with the regulation of political fundraising and expenditures is one “way out” of these problems. We might want

to regulate political party financing outside of the writ period and impose annual spending limits. This could limit a party’s ability to launch attack ads against their opponents between elections. … Reintroducing public subsidies for political parties might also reduce their ferocious appetite for information about Canadians, a key part of fundraising efforts.

The suggestion to “regulate party financing outside of the writ period” is a bit vague ― party financing is already regulated at all times, after all, though as I noted above, the regulations tend to apply evenly throughout the electoral cycle. But spending limits outside the writ period, and public financing, would have predictable, if unintended, negative consequences.

Permanent spending limits are, of course, permanent restrictions on the parties’ (and their supporters’) freedom of expression. We might not care too much about that, seeing how parties are vehicles for the aggrandizement of leaders and not contributors to an ideas-based political discourse, though I think that the freedom of expression even of relatively unsavoury actors has a value. But if parties subject themselves to permanent spending limits, they will not leave the rest of civil society alone. They will introduce stringent limits on the ability of “third parties” ― the disparaging name under which every speaker who is not a party or a candidate is known in election law ― to spend and express themselves as well. This is already what happens federally and in some provinces during election campaigns, and the Supreme Court has approved ― in the name of fairness ― the principle of radically lower spending limits for “third parties” than for political parties. Ontario has now gone further and introduced spending limits for “third parties” that apply six months ahead of an election. Permanent limits on party spending will create a strong pressure for what I have called, here and elsewhere, permanent censorship:

[A]n attempt to control “third party” spending between elections … It would extend to all advertising related to political parties or their candidates, including by taking position on issues “associated” with the party or the candidate. Moreover, in addition to dollar limits, the spending control regime includes onerous registration and disclosure requirements. Any individual, group, or organization that wanted to engage in political discourse would have to register with Elections Canada and keep it informed about its income and expenses. In effect, an extension of the rules on “third party” spending between elections would be a step towards the imposition of a regime of wholesale political censorship in Canada.

As I explain in detail in the posts linked to above, the courts may well find that such a regime is an unjustified violation of the protection of the freedom of expression in the Canadian Charter of Rights and Freedoms. But then again, they may not. But it would be no less terrifying even if the courts were in fact prepared to uphold it.

As for public financing for political parties, it is not obvious that it would reduce their hunger for data about us ― if not as potential donors, then as prospective voters (or indeed opponents who might be dissuaded from voting with targeted negative advertising). It would, however, reinforce the dominant position of large parties ― especially, of course, of the winners of the last election ― and prevent smaller, and above all new, parties from competing with more established ones on anything like equal terms. Perhaps these distorting effects are worth it for other reasons (though I’m skeptical), but I don’t think that the uncertain prospect of reduced data collection could justify them.

Permanent campaigns are, obviously, an important political development, and the law must take them into account. I am looking forward to reading the book on which prof. Esselment’s post is based, and perhaps I will have more to say about the subject as a result. But we must be very careful to avoid creating more problems as we try to solve those we have already identified. Indeed, we ought to keep in mind that if these problems arise from previous attempts at regulation, the solution might not be a fuite par en avant, but a retreat.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

2 thoughts on “The Law of Permanent Campaigning”

  1. We could start with repealing fixed term legislation, which on one hand is relatively useless in that the legislation at both the Federal and Provincial levels can’t alter the royal prerogative of dissolution, but on the other hand replicates some of the worst aspects of the American system, whereby the electoral cycle becomes a permanent inter-election phenomenon. That may not solve the entire problem, but without fixed election dates, it means parties have to save more of the powder because the next election’s timing is uncertain.

    There was actually talk of the Tories in Britain repealing the Fixed-Term Election Act, as it was demonstrated that even in Britain’s more malleable Westminster variant, a Prime Minister still has ways to manipulate the situation to assure they get the election they want. In other words, in a Westminster parliament, fixed term elections simply do not work, and only exacerbate the “permanent campaign” we’re seeing both Canada and Britain.

    As to restricting party fundraising, I guess I sit on the fence. On the one hand, we can see how big money can muck with elections and distort democracy. On the other hand, I’m just not sure that distorting effect is compatible with the political freedoms guaranteed in the Charter. But with most jurisdictions in Canada now moving towards limiting funding sources for political parties, and no significant challenges, I don’t see a Charter challenge on the horizon. Here in BC where I live, it looks like bans on corporate and union donations is going to happen now, which means not only will I be getting harassed by Federal parties looking for donations, but now Provincial parties will join the queue.

    1. I agree that fixed election date laws were a bad idea, and to the extent they contributed to permanent campaigns (I’m sure they did, though they’re probably not the only cause) this too is an example of unintended but predictable consequences of fiddling with election law. As for fundraising, I don’t suppose bans on non-individual contributions could be challenged under the Charter. I will, however, note that there is no such ban here in New Zealand, which is apparently the least corrupt country in the world these days, according to Transparency International. (NZ also has much laxer reporting requirements, and more liberal spending limits on third parties too.)

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