Who Plays on a Level Field?

Any regulation of the democratic process reflects a certain normative view of an idealized democracy. For example the decision of the Supreme Court of the United States in Citizens United v. Federal Elections Commission, 558 U.S. 50 (2010), to allow corporate and union spending on electoral campaigns reflects a (stated) view that democracy functions best when the quantity of political speech speech is maximized, and is impaired if any category of speakers is silenced. Canadian electoral legislation and the leading cases in this area decided by the Supreme Court of Canada, Libman v. Québec (A.G.), [1997] 3 S.C.R. 569, and Harper v. Canada (A.G.), 2004 SCC 33, [2004] 1 S.C.R. 827, reflect a different normative view, which Colin Feasby, the most prolific writer on the law of democracy in Canada, has called an “egalitarian model” of elections. But such ideals leave much unsaid. The Supreme Court of the United States says that it maximizes freedom and the amount of information available to voters, but pays little attention, for example, to the likely detrimental effects the need to raise funds for an unlimited-expenses campaign has on the performance of elected officials (and candidates for office).

What does the Canadian “egalitarian model” leave unsaid? A metaphor that the Supreme Court uses in Harper, that of “a level playing field for those who wish to engage in the electoral discourse” (par. 62) is helpful to try to understand. The Supreme Court probably invoked it for no reason beyond its feel-good appeal to our sense of fair play (though the appeal is lost on some, including the Chief Justice of the Supreme Court of the United States, John Roberts, who, in Arizona Free Enterprise Club v. Bennett, (2011) 131 S. Ct. 2806, at 2826, Chief Justice Roberts has observed that although “‘[l]eveling the playing field’ can sound like a good thing … in a democracy, campaigning for office is not a game.” But I would like to extend the metaphor a little, and explore the implications of describing electoral debate as a football game (or a chivalry tournament – or, perhaps less romantically, a duel – for those who read the French version of the judgment, which speaks of debate “à armes égales”; the imagery is somewhat different, but still amenable to the interpretation I am about to suggest) because it reveals more than the Court probably intended about the roles of those involved in the political process under the egalitarian model.

If the electoral process as envisioned by the Supreme Court is a football game played on an “even playing field,” political parties are of course the teams playing on that field. According to the adherents of the egalitarian conception of democracy, they are the primary competitors for the prize of political power. Political parties are like professional sports teams, with coaching and scouting staff of consultants and opposition researchers, their farm clubs of youth organizations, their practice rosters of backbenchers and, of course, their fans among the voters. These fans, along with less interested spectators, are seating in the stands around the playing field. A few of them might unfurl some home-made banners to make their opinion of the proceedings or the competitors known, but for the most part they will, at most, cheer their favourites and boo the opponents. There are even cheerleaders around the field, although they wear suits, as befits members of editorial boards. Neither players nor spectators, they try to stir up the enthusiasm of the latter for the former.

This extended metaphor highlights some salient features of the egalitarian model of elections implemented by Parliament in the Canada Elections Act, and endorsed by the Supreme Court, such as the special status of the media and, most importantly, the central role of political parties in electoral discourse and the relative passivity of the voters. The metaphor only breaks down on Election Day, when the voters are at last allowed to leave the stands, and to choose the winner of the game they have (or have not) been watching.

I think this is a rather less rosy picture than that which the Supreme Court would like us to see. Metaphors, even old and stale ones, are dangerous that way.

More about Election Law

There are two things to mention today, both related to election law, and more specifically to restrictions on “third-party” speech in the pre-electoral context.

First, Radio-Canada reports that Québec’s Chief Electoral Officer has been in touch with the leaders of the student organizations who are protesting the tuition fee hikes announced by the provincial government. The protesters are angry at Premier Jean Charest and the Québec Liberal Party and have made no secret of their desire to help defeat them when the next election is called – there was speculation that it might happen this spring, but the fall now seems more likely. Well, as I have argued in an op-ed that Cyberpresse published in mid-April, the expenses the protesters will incur during an eventual election campaign will be covered – and severely limited, indeed almost to the point of being prohibited – by the draconian third-party spending provisions of Québec’s Election Act. Radio-Canada quotes the Chief Electoral Officer’s spokesperson as saying that the “objective was not to prevent [the protesters] from expressing themselves. The goal was to make sure that they comply with the law.” The trouble is, the effect of the law will be to prevent the protesters from expressing their views. As I said here already, Québec’s law was intended to prevent the rich from capturing the democratic process, but operates to silence not only the rich, but also those who are not well-off, while shielding the incumbent politicians from criticism by political outsiders.

And second, NYU’s Richard A. Epstein has an interesting (albeit asininely entitled) essay responding to Jeffrey Toobin’s story of the U.S. Supreme Court’s Citizens United decision. As before,  I will avoid discussing the merits of the Citizens United decision itself (though I find prof. Epstein’s essay well-argued, as I did a lecture he gave at NYU in September 2010; at least, a good criticism of Citizens United would need to address the points prof. Epstein makes). I want to mention, however, that prof. Epstein is skeptical of the distinction that Mr. Toobin sought to make between “electioneering” by means of TV advertisements and books. He writes that

Toobin … fights against modern technology when he seeks to draw a hard and fast line between “the pervasive influence of television advertising on electoral politics” and books that operate “in a completely different way,” given that individuals have to make an “affirmative choice to acquire and read a book.”

Oh? Thanks to the internet, books can be excerpted and transmitted in a thousand different ways online to consumers who need only a single click to ignore messages they don’t like. Given the vast reduction in cost in the production of information, it seems positively odd to ban, or even regulate, one form of dissemination while allowing other forms to survive unregulated.

His conclusion, of course, is not that we should censor books, but that we should not restrict other forms of “electioneering” either. That’s pretty much what I argued in my previous post on this topic. The distinction between books and TV ads is not obvious, and indeed probably not tenable. Canadian election legislation makes it, exempting (some) books from its application, but it is not a principled distinction. The principle underlying our law would in fact allow censorship of books (indeed it already allows censorship of some books, as I explained), and that suggests that this principle is misguided.

UPDATE: The Globe also has a story about the Chief Electoral Officer’s warning to student organizations. It emphasizes limits on individual contributions to electoral campaigns, but I think this emphasis is misplaced. The real problem is not with contribution limits, but with those on third-party spending.

Is There Voice after Exit?

First of all, an apology for the overextended silence. I couldn’t find anything interesting to blog on, I’m afraid. Fortunately the CBC has rescued me by reporting on a challenge to the provision of the Canada Elections Act, S.C. 2000 c. 9 (CEA) which prohibits Canadians who have resided abroad for more than five consecutive years (except members of the Canadian forces, civil servants, diplomats, and employees of international organization) from voting in federal elections. (Indeed the disenfranchisement potentially extends even to those Canadians who have been abroad for less than five years but do not intend to return to Canada as residents, or even those who are unable to provide the Chief Electoral Officer with “the date on which [they] intend[] to resume residence in Canada,” pursuant to par. 223(1)(f) of the CEA. It is not quite clear whether the challenge extends to the requirement of an intent to return (on a certain date). While the intent requirement  is in the same provision (par. 11(d) of the CEA) as the five-year limit, it might be easily severable; certainly the individuals bringing the challenge emphasize their desire to return to Canada.

The CBC writes that

[t]he rule denying the vote to Canadians outside the country for more than five years was enacted in 1993 amid debate about the strength of their ties to Canada and how well informed they are about the domestic political situation. However, it was only in 2007 that Elections Canada began to enforce the rule to “more clearly reflect the intention of Parliament,” said spokesman John Enright. Until then, the five-year clock would reset for expats who returned even for short visits. Now, they have to “resume residency” before leaving again to regain their right to vote abroad.

It adds that

[a]ccording to economist Don DeVoretz, professor emeritus of Simon Fraser University, close to 10 per cent of all Canadians live abroad – a larger population than all but four of the provinces. About one-third of them live in the United States.

The leading case on the disenfranchisement of a class of citizens is Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519, which the Supreme Court held ― by a 5-4 majority ― that denying the right to vote to prison inmates serving sentences of two years or more was a violation of s. 3 of the Canadian Charter of Rights and Freedoms, which provides (in part) that “[e]very citizen of Canada has the right to vote in an election of members of the House of Commons,” and that this violation was not justified by s. 1 of the Charter. The government had conceded the s. 3 violation, which I assume will also happen in this case. The real debate in Sauvé was, and will be here, on the s. 1 justification.

Chief Justice McLachlin, writing for the majority in Sauvé, warned that “[l]imits on [the right to vote] require not deference, but careful examination” (par. 9). While “logic and common sense” could serve as justifications in the absence of hard scientific evidence, “one must be wary of stereotypes cloaked as common sense, and of substituting deference for the reasoned demonstration required by s.1” (par. 18). The prohibition on prisoner voting utterly failed the s. 1 test. For one thing, prisoner voting gave raise to no specific concern which Parliament sought to address by prohibiting it. Parliament’s stated objectives of promoting respect for the law and enhancing the purposes of criminal punishment were vague and symbolic, so much so that their “rhetorical nature … render[ed] them suspect” (par. 24); they were not pressing and substantial, as required by s. 1. For another, even if Parliament’s objectives were satisfactory, deprivation of the right to vote was not rationally connected to them. “[A] decision that some people, whatever their abilities, are not morally worthy to vote — that they do not  ‘deserve’ to be considered members of the community and hence may be deprived of the most basic of their constitutional rights” (par. 37) runs against the direction of historical progress towards universality of the franchise and “is inconsistent with the respect for the dignity of every person that lies at the heart of Canadian democracy and the Charter” (par. 44).

How will these comments apply to the denial of the franchise to Canadians living abroad? It seems to me that the government is again going to have a hard time articulating the objective of this measure, “the harm that the government hopes to remedy” (par. 23). My best guess is it will be something like “preventing voting by people who are uninformed or do not care about Canadian politics, or who have abandoned their membership in the Canadian community.” The applicants who launched this challenge, as the CBC story describes them, certainly give lie to any such claims. Especially now, thanks to the Internet, it is in fact as easy to keep abreast of Canadian news while living in New York as in North York, in Melbourne as in Montreal, in Kolkata as in Calgary. And of course it is now easy to maintain one’s ties to one’s family and friends in Canada, and to remain part of the broader community (as indeed I am trying to do with this blog for example). Add to this the fact that those Canadians living in Canada need not show that they are in any way informed about politics or current events, or that they have any sort of community ties, in order to be able to vote, and the denial of this right to those living abroad looks perfectly arbitrary. As with the prisoners, it is a judgment that they are not morally worthy to vote ― and such judgments are not open to Parliament, according to Sauvé.

I wish the challengers, and their lawyers, the best of luck.

Can Canada Ban Books?

The New Yorker has published an interesting, albeit tendentious, as The Volokh Conspiracy’s Jonathan Adler explainsaccount by Jeffrey Toobin of the notorious Citizens United decision of the U.S. Supreme Court, which struck down limits on corporations’ spending on pre-electoral advertising. According to Mr. Toobin, the key to Supreme Court’s engagement with the  case was a question asked by Justice Alito: while the law at issue applied to “electronic communications” – first and foremost television – could its constitutional rationale also apply to justify prohibitions on appeals to vote for or against a candidate published in a book? Could the government censor books published by corporations (that would be all of them) in the pre-electoral period if they contained “electioneering”? The U.S. government’s lawyer said it could.

The Justices leaned forward. It was one thing for the government to regulate television commercials. That had been done for years. But a book? Could the government regulate the content of a book?

“That’s pretty incredible,” Alito responded. “You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?”

It is at that moment that the case became one about censorship generally, rather than the specific and unusual circumstances actually at issue.

The trouble is, Mr. Toobin contends, the lawyer “was wrong. Congress could not ban a book. [The law at issue] was based on the pervasive influence of television advertising on electoral politics, the idea that commercials are somehow unavoidable in contemporary American life. The influence of books operates in a completely different way. Individuals have to make an affirmative choice to acquire and read a book. Congress would have no reason, and no justification, to ban a book under the First Amendment.” Prof. Adler argues that it is Mr. Toobin who is mistaken. “[T]he government,” he observes, “never sought to defend the law on the basis that it was limited to electronic media. After all, the point of the was to limit the role of money in campaigns, not limit television advertising. The position the government was defending was that Congress could limit corporate expenditures related to campaigns, not that it could regulate TV.”

My purpose is not to dwell on the rights or wrongs of Citizens United, but to look at the way the issue raised by Justice Alito plays out in Canadian election law. Par. 319(b) of the Canada Elections Act exempts “the distribution of a book, or the promotion of the sale of a book, for no less than its commercial value, if the book was planned to be made available to the public regardless of whether there was to be an election” from its definition of “election advertising” which it sharply restricts. Québec’s Election Act contains a similar qualified exception in subs. 404(2). So, since the exemptions are qualified to only apply to books published “regardless of whether there was to be an election,” books published with a view to an upcoming election, or books the publication of which has been accelerated to coincide with an electoral campaign, would not be exempt. Overrunning the spending limits (which are exceedingly low federally, and even more so in Québec) on publishing and promoting them would be an offence, as would be not reporting these activities to election regulators. Is this the sort of restrictions on the freedom of expression we are prepared to live with?

But prof. Adler’s argument points to a still more serious problem. Even the qualified exemptions now existing do not sit easily with the rationales for the regulation of and restrictions on election spending, especially by actors other than political parties, which the Supreme Court of Canada embraced in Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569 and Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827. Those rationales are that non-party voices must be muffled, if not quite silenced, in the pre-electoral debate, lest political parties have trouble being heard, and that the influence of money ought to be reduced, if not quite eliminated. The exemption for books seems to run counter to these purposes. Could Parliament and provincial legislatures abolish it if they felt like it? Quite possibly. Doing so would, I have argued, be rationally connected to the overall objectives of election spending regulation. It is harder to guess whether it would be held to be a “minimal impairment” of freedom of expression, and whether the courts would find that its salutary effects will outweigh the deleterious ones, but if the prohibition on publishing an ad in a national newspaper has been upheld (in Harper, as the dissenting judgment points out), why not that on a book? Once again, isn’t there something wrong with our approach to freedom of expression in the pre-electoral context if it countenances prohibitions of this sort?

Are Provincial Election Spending Restrictions Ultra Vires?

Here’s a simple, crazy question: is legislation limiting electoral campaign expenses unconstitutional because ultra vires the provinces? I think that the argument in support of an affirmative answer makes sense, even though I wouldn’t expect Canadian courts to buy it. Here it is.

Campaign spending restrictions restrict free speech on political matters. Nobody disputes that, and the Supreme Court recognizes this in cases such Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569. Nonetheless, such laws (if not too restrictive – as the law in Libman was found to be) can be justified under s. 1 of the Charter, and are therefore constitutional. Or are they?

In the “implied bill of rights” cases, starting with the Alberta Statutes Reference, [1938] R.C.S. 100, the Supreme Court pushed back against attempts by the provinces (first Alberta and then Québec) to curtail political speech disagreeable to authoritarian provincial governments. As there was no Charter then, it used the federal division of powers to ground its judgments. Speech, especially political speech, was said to be within the exclusive competence of Parliament, outside the reach of provincial legislation. Whatever its subject, it was not of merely provincial importance. In the words of Chief Justice Duff and Justice Davis in the Alberta Statutes Reference, at p. 134,

[a]ny attempt to abrogate this right of public debate or to suppress the traditional forms of the exercise of the right (in public meeting and through the press) would, in our opinion, be incompetent to the legislatures of the provinces, or to the legislature of any one of the provinces, as repugnant to the provisions of The British North America Act, by which the Parliament of Canada is established as the legislative organ of the people of Canada under the Crown, and Dominion legislation enacted pursuant to the legisla­tive authority given by those provisions. The subject matter of such legislation could not be described as a pro­vincial matter purely; as in substance exclusively a matter of property and civil rights within the province, or a matter private or local within the province.

Saumur v. City of Québec [1953] 2 S.C.R. 299 and Switzman v. Elbing [1957] S.C.R. 285 are to the same effect.

Overruling such hallowed precedents, showing the Supreme Court’s commitment to individual rights even in the absence of explicit constitutional authorization, seems unthinkable.

Can they be distinguished? One might argue that regulation of provincial elections, as opposed to political speech generally, is a different subject, competent to the provinces. I think the distinction fails. The passage I quote above does not really leave room for it. Provincial politics and federal politics are obviously connected, so if federal political discussion is to be free, so must provincial political discussion. But there is another possibility. It is at least a somewhat plausible reading of the “implied bill of rights” cases that what they prohibit is not any regulation of political speech by the provinces, but only, to use an American term, “viewpoint restrictions.” A province can regulate speech; it just cannot single out one opinion for unfavourable treatment. And it is perhaps arguable, though I believe (for reasons I have no room to elaborate here but touch on in my Cyberpresse op-ed) not correct, that campaign spending restrictions are viewpoint neutral. If that argument fails, as I think it should, then provincial restrictions on election spending are ultra vires and thus unconstitutional.

Student Protests and Election Law

Cyberpresse (La Presse’s website) has published my op-ed (en français) on the effects a possible spring election in Québec would have on the student protests against tuition fee hikes. In a nutshell, I argue that, given their explicit opposition to the Liberal government, any expenses the protesters would engage in during an election campaign would count as third-party electoral expenses, and would therefore be illegal under Québec’s extremely restrictive electoral spending legislation, which prohibits third-party expenses in support of or in opposition to a political party or candidate. The law was intended to prevent the rich from capturing the democratic process, but operates to silence not only the rich, but also those who are not well-off.