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.

Rights and Disagreement

Charles Krauthammer has an interesting op-ed in the Washington Post discussing President Obama’s endorsement of same-sex marriage, and accusing him of taking an intellectually incoherent approach to this matter. Mr. Obama has said that marriage – including of the same-sex variety – is a right; he has also said that the issue of allowing same-sex marriage (or not) should be for each state to decide. Mr. Krauthammer charges that this is contradictory: rights are rights are rights, and if something is a right, then it’s a right everywhere, and not state by state. It is the same argument that Dahlia Lithwick and Sonja West made in an op-ed on Slate (which I criticized here on other grounds). Mr. Krauthammer’s colleague Ruth Marcus also raised this issue a few days ago. It seems like a compelling argument, but it is wrong.

It is fine to say, in the abstract, that if something is a right it is a right everywhere and is not negotiable. (Actually, that too is a very controversial position, but let’s assume it.) The problem, as Jeremy Waldron likes to remind us, is that we don’t have any agreed upon means of verifying, to the satisfaction of everyone, the claim that something is a right, the way we have agreed upon ways of verifying the veracity of a claim made by a scientific theory. Thus even assuming that there exists a truth of the matter regarding rights, we can never be sure that we are, at any given moment, in possession of the truth about a claim of right. We think, of course, that our opinions about rights are correct; but if we are honest with ourselves, we cannot trivialize the possibility that we are mistaken.

We must recognize, therefore, that disagreements about right are can be reasonable. And that means recognizing – a possibility for which Mr. Krauthammer does not allow –  that someone who does not share our views about a certain claim of rights is not, for that reason, a bigot. I suspect that, if we think of the international realm, we mostly share that view. We do not think that every country that does not share our views about rights is bigoted. We might think them wrong, but not immoral. And we do not think that we ought to impose our views on them. We recognize that these are matters over which good faith disagreement is possible, and it is not wrong for each polity to resolve this disagreement as it thinks best – because it just might that they, rather than us, will get at the right answer.

Mr. Obama’s position might simply the application of this line of thinking inside the United States. He thinks that same-sex marriage is a right. But he acknowledges the possibility of good-faith disagreement on the matter (after all he, supposedly, until recently had doubts ), and thinks that this disagreement is best resolved in each state separately. This is not contradictory or incoherent.

There might be one more problem with that position. Where rights are codified in an authoritative document, like the U.S. Constitution, it seems strange to accept that it might mean different things to different people. But we know it does; people disagree about what the Constitution means just like they disagree about the underlying issues of rights. Unless one accepts the Dworkinian “one right answer” view, it need not be particularly troubling that the same document is interpreted differently by different people.

For once, left, right, and centre are united at criticizing Mr. Obama. And the irony is that this criticism is quite unfair.

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?

So, so, so! So… what?

Yale Law School will be hosting a second annual Doctoral Scholarship Conference in December. Its topic will be “the relationship between law and the creation or destruction of social, political and economic solidarity.” I would like to go, so I got thinking about what I might write on this topic (which is not naturally congenial to me). And that, in turn got me thinking about what, exactly, “solidarity” means.

“Solidarity” has very specific meanings in some contexts. Sociology is one, according to Wikipedia anyway. Civil law is another: the Civil Code of Québec has a subsection on “solidary obligations,” which for example provides that there exists “solidarity” “between the debtors where they are obligated to the creditor for the same thing in such a way that each of them may be compelled separately to perform the whole obligation and where performance by a single debtor releases the others towards the creditor” (art. 1523). But I don’t suppose that the good people at Yale are referring to these special meanings.

To understand what they meant, it seemed more logical to turn to (political) philosophy. But the concept of solidarity just doesn’t seem to be of concern to it. The Stanford Encyclopedia of Philosophy has no entry on this concept, for example. Nor does it appear in the index of a collection of essays called Contemporary Debates in Political Philosophy edited by Thomas Christiano and John Christman. This is quite remarkable. The idea of solidarity seems to feature regularly in the political discourse (at least on the left). What is it that they’re talking about?

What I’m left with is a dictionary definition. The Oxford English Dictionary says that solidarity means “unity or agreement of feeling or action, especially among individuals with a common interest; [or] mutual support within a group.” Now these two meanings seem quite different. Unity of feeling and action might well yield little mutual support (so striking workers do not necessarily support each other, though they act together and with a common goal); conversely, mutual support need not entail unity of feeling, nor indeed the existence of common interest (members of a family might support each other despite much disagreement and lack of common interests). And I’m not entirely sure which of them, if either, the call for papers refers to.

I’d be delighted to have your thoughts on this.

UPDATE: Further digging on Wikipedia reveals that solidarity also has a specific meaning in Catholic social thought. The encyclical Sollicitudo Rei Socialis defines it as “a firm and persevering determination to commit oneself to the common good; that is to say to the good of all and of each individual, because we are all really responsible for all. This determination is based on the solid conviction that what is hindering full development is … desire for profit and … thirst for power.” (s. 38) Again, I’m not sure just how relevant this is.


Rights and Votes

Is it ever ok to put people’s rights to a democratic vote? Dahlia Lithwick and Sonja West are adamant that it is not, as they make clear in an article in Slate on the subject of same-sex marriage. But their argument is wrong, and indeed dangerous.

Ms Lithwick and Ms West argue that “marriage equality … is a constitutional and not a democratic issue.” So is equality generally – as they put it, “[e]quality is not a popularity contest,” – and so are other “essential liberties.” They conclude their article with a reference to slavery – the biggest rhetorical sledgehammer except for Hitler – claiming that “[j]ust as [the U.S.] couldn’t go on with a mix of free states and slave states, we cannot continue with this jumble of equal marriage states and discriminatory states. Recognizing a federal constitutional right is the only, and the best, method to put this issue to rest.”

Ms Lithwick and Ms West might mean that when democratically enacted laws have the effect of defining the scope of citizens’ constitutionally protected rights and liberties, it is legitimate for courts, exercising the power of judicial review of legislation, to overrule these definitions and to impose their own. That would be an argument about what Jeremy Waldron, in his article on “The Core of the Case against Judicial Review” calls “process-related reasons” for choosing a procedure for settling disputes about rights. Prof. Waldron believes  that the democratic, legislative procedure is much the better one, because it respects the views of every citizen on these matters. Ms Lithwick and Ms West think otherwise because of their contemptuous view of democracy as a popularity contest.

But it is not what the argument they actually make. What Ms Lithwick and Ms West say is that issues are either democratic or constitutional – and this implies that rights and liberties are simply outside the purview of the democratic process. This suggests not just that courts are better than legislatures at dealing with disputes about rights, or that they should be called in as a last result to correct legislative failures or oversights, but that legislatures and voters have no business pronouncing on issues defined as constitutional at all.

Contrary to Ms Lithwick and Ms West’s assertion, this is a radical argument. It is also an absurd one. Legislatures and voters engage with arguments about rights all the time – and they don’t always do it badly. Legislatures made same-sex marriage legal in Canada and in some of the states where it is legal in the U.S., including New York. Legislatures decriminalized homosexuality in Canada, the U.K., and much of the U.S. (though courts did end up sweeping the remaining prohibitions there). They abolished the death penalty in Canada, all of Europe, and those U.S. states where it no longer exists. Yet if one accepts that voting is not a legitimate procedure for settling disputes about right, as Ms Lithwick and Ms West contend, then one is committed to saying that all these votes were illegitimate – legislatures had no business addressing these issues at all. And one cannot say that legislation that advances rights is legitimate whereas that which restricts them is not; process-based arguments against a decision-making procedure remain whether or not the outcome is good. If flipping a coin to decide whether same-sex marriage ought to be legal is a bad idea, it remains a bad idea even if the result is one we agree with. Winning a popularity contest has the same moral significance as losing one – that is, none.

And as for the slavery argument, it is deeply ironic and ought to be embarrassing to Ms Lithwick and Ms West. When it confronted the issue of slavery, the Supreme Court of the United States not only upheld this evil, but extended it, holding that a law – enacted by a legislature, the U.S. Congress – prohibiting slavery in the U.S. territories was unconstitutional. This decision, Dred Scott v. Sandford, ought to be a reminder to those who defend judicial review that courts are not immune from doing evil and letting wrong prevail over right.

Unlike prof. Waldron, I think that judicial review has a legitimate place in resolving questions about rights in democratic polities. But so do legislatures – and their engagement with these questions is something to be celebrated, not denigrated. I do hope that same-sex marriage becomes legal everywhere (unless, that is, governments at last get out of the marriage business altogether, which would be even better). And if courts need to step in to make this happen, so be it. But the more involved legislatures are in this progress, the better it will be.

Rants and Freedoms

Some university students think the lecturer whose class they are taking is doing a lousy job. Someone creates a hyperbolically-named Facebook group to rant; others join; a few post derogatory messages on the group’s wall. So far, so normal. But, after the semester ends and the lecturer, for reasons unknown, is no longer employed by the university, she somehow learns of the Facebook group, and complains to the university’s authorities. A kangaroo court is held, and finds the members of the group ― including those who posted no messages at all, and those whose messages were quite innocuous ― guilty of “non-academic misconduct.” Some of the students are required to write an apology letter to the former lecturer and put on probation. An appeal to a higher university instance is fruitless, and the university’s Board of Governors refuses to hear a further appeal. Judicial review and an appeal ensue.

That’s the scary story of Keith and Steven Pridgen, (former) students at the University of Calgary, whose right to rant the Alberta Court of Appeal vindicated in a recent decision. One has to hope that it will serve as a lesson for professors and university administrators (as well as teachers and school principals) in the future. Students, in case such people forget, have always ranted about their professors, and always will. It’s not always nice, and it’s not always fair; get over it. (This is, as much as anything else, a note to self as an aspiring academic.) The fact that rants now leave a digital record does not change anything, it seems to me: just because they used to circulate (and of course still circulate) by word of mouth, rants were no less pervasive and durable in the past. Stories about professors are handed over from one cohort of students to the next; they are an ineradicable part of university’s environment.

Legally, the Alberta Court of Appeal is interesting in a number of ways. Each of the three judges wrote a separate opinion. They all agree in finding the university’s decision unreasonable  and hence invalid on administrative law grounds, because the university’s decision bore little, if any, relationship with the evidence it ought to have been based on ― evidence of harm to the lecturer, or of the specific actions of each accused student. Justice O’Ferrall also finds that the utter failure to consider the students’ free speech rights contributes to making the decision unreasonable. The judges disagree, however, on whether to address the other issue debated by the parties (and several interveners) – the applicability of the Charter, and its guarantee of freedom of expression.

Justice Paperny thinks the question deserves to be addressed, since it was debated at length by the parties and is important; her colleagues disagree, because it is not necessary to the resolution of the case (since it can be resolved on administrative law grounds) and important constitutional questions should not be addressed unless it is necessary to do so. Both arguments have merit; I’m not sure on whose side I would have come out if I had to vote. Justice Paperny devotes much of her opinion to arguing that the Charter does indeed apply to universities, at least in their disciplinary dealings with their students. Her review of the case law is comprehensive, her argument about the universities’ and the government’s roles in contemporary society sometimes sweeping. And it is persuasive (and Justice Paperny’s colleagues, one senses, do not actually disagree with its substance).

One final thought. The court did not pause to consider whether the university even had the power to punish students for something they wrote on Facebook. Yet it seems to me that it’s a crucial jurisdictional question. (Needless to say, the university did not consider it either.) I can see why a university might be interested in what is being said in its lecture halls, or online on forums it maintains (in connection with courses for example). It does have an interest in maintaining a welcoming, respectful learning environment, although arguably this interest does not play out in the same way as a school’s, since everyone at a university is an adult and is there by choice. But does this interest give a university the right to police the conduct of its students off-campus or online? I think not; but in any case, it’s too bad the court did not ask itself the question.