Accounts of Accountability

It’s important to keep politicians accountable. But what follows for regulation of money in politics?

Freedom of expression is necessary, among other things, to foster political accountability in a democracy. On that much we can surely all agree. But what follows from the link between the freedom of political discussion and our interest in holding our elected representatives to account? Specifically, when it comes to regulating money in politics, should a healthy concern with maintaining accountability cause us to favour more restrictions, or fewer? The answer to that question is, to say the least, not obvious, as a comparison between two judicial opinions linking democratic accountability and freedom of expression but coming to opposite conclusion shows.

In McCutcheon v Federal Election Commission, 134 S Ct 1434 (2014), the majority of the U.S. Supreme Court struck down limits on the total amount of money an individual is allowed to donate to candidates at an election. (The limit on the amount that can be given to an individual candidate was not at issue.) In dissent, Justice Breyer drew on the value of accountability to justify the limitation of the role of money in politics. He noted that “political communication seeks to secure government action. A politically oriented ‘marketplace of ideas’ seeks to form a public opinion that can and will influence elected representatives.” (1467) The protection of the freedom of expression, he continued, “advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.” (1467; emphasis in the original) According to Justice Breyer, the undue influence of substantial pecuniary contributions to politicians, which he characterized as

[c]orruption breaks the constitutionally necessary “chain of communication” between the people and their representatives. It derails the essential speech-to-government-action tie. Where enough money calls the tune, the general public will not be heard. Insofar as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point. (1467)

In other words, to keep politicians accountable to the voters, it is necessary to limit the influence of money on them, and in this particular case to uphold the constitutionality of limits on donations.

Compare this with the opinion of Australian High Court’s Chief Justice Mason in the case of Australian Capital Television Pty Ltd v Commonwealth, (1992) 177 CLR 106. At issue were provisions eliminating the ability of both political parties and candidates and of “third parties” to pay for electoral advertisements in broadcast media. (Parties represented in Parliament were given some free time for their advertisements.) Chief Justice Mason also extolled the virtues of democratic accountability and emphasized the link between the actions of the governors and the opinions of the governed:

the representatives who are members of Parliament and Ministers of State are not only chosen by the people but exercise their legislative and executive powers as representatives of the people. And in the exercise of those powers the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act. Freedom of communication as an indispensable element in representative government. [37]

Democratic accountability thus required that the freedom of expression be protected (even in the absence of an explicit guarantee in the constitutional text):

Indispensable to that accountability and that responsibility is freedom of communication, at least in relation to public affairs and political discussion. … Only by exercising that freedom can the citizen criticize government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives. … Absent such a freedom of communication, representative government would fail to achieve its purpose, namely, government by the people through their elected representatives; government would cease to be responsive to the needs and wishes of the people and, in that sense, would cease to be truly representative. [38]

So far, so similar to Justice Breyer. But from this, Chief Justice Mason went on to reason that the restrictions on electoral advertising at issue could not stand, because they were incompatible with the freedom of political communication, and thus undermined democratic accountability. More money in politics, not less, was the way to keep politicians accountable to the people.

Now, contrasting these two opinions in this way is oversimplifying things. The issues in McCutcheon and in Australian Capital Television were somewhat different. The former concerned the giving of money to politicians; the letter, spending both by politicians and by civil society actors. Although both come within the general category of “money in politics” concerns, it is possible to think that one but not the other can be strictly regulated. Besides, to some extent at least, both McCutcheon and Australian Capital Television were about means, not just ends. It is possible that, confronted with different regulations, both Justice Breyer and Chief Justice Mason would have reached different conclusions by reasoning from the same values.

That said, we know that the same faction of the U.S. Supreme Court that dissented in McCutcheon was also favourable to restrictions on electoral speech by (at least some) members of the civil society in Citizens United v Federal Election Commission, 558 US 310 (2010). And while there might be a point at which Justice Breyer would have balked at the limitation of permissible financial contributions to politicians, it is not clear where that point lies. Conversely, although Chief Justice Mason suggested that a less restrictive set of regulations might have been compatible with the freedom of political communication, existing regulatory schemes, such as Canada’s or New Zealand’s, would likely not have made the cut, and I struggle to imagine one that would. The disagreement is not only, and I suspect not mainly, about means. It is driven to a substantial extent by conflicting interpretations of the value of accountability.

I’ll leave to another post (maybe, sometime) a discussion of who, if anyone, of Justice Breyer and Chief Justice Mason is right. My point here is rather that appeals to values, and even to generally accepted truths (such as the importance of free political expression to democratic accountability) are unlikely to settle the difficult disputes that arise in the law of democracy. The values may be shared at a sufficiently high level of abstraction, yet understood so differently as to lead those who hold them to starkly different conclusions.

Accountability Ersatz

The Court Challenges Program shows accountable government is no substitute for a small government

Over at TheCourt.ca, Nicholas Hay offers a qualified and nuanced defence of the Court Challenges Program, which recently relaunched by the federal government. I have criticized the Program here and elsewhere, as have others ― for example the National Post’s editorial board (which mentions some of my arguments). Mr. Hay responds to one of my criticisms by arguing that the Program would benefit “an expansion to include all Charter rights” ― but this only meets my concern that it plays favourites with the constitution half-way, if there, because it would still be objectionable for the government to indicate that it values the enforcement of Charter rights more than that of the federal division of powers. In any case, in this post, I will not re-argue that. Rather, I’ll make a different point, which isn’t only about the Court Challenges Program alone, but which Mr. Hay’s argument brings to mind.

Mr. Hay argues that “the very crux of the Program is government accountability”. To allow, and even to help, citizens challenge unconstitutional government action means making the government answer for its decisions. Unfortunately, Mr. Hay adds, the Program risks being implemented in a way that pays insufficient heed to concerns about accountability within its own functioning. He argues that there is a “need for an enhanced, accountable selection process that will appoint disinterested members” to the expert panels that choose the cases the Program will fund. In addition “the Program should be open to regular review by the Auditor General, and the files should be open to the public under the Access to Information Act”. And when it comes to making the actual decisions about which cases to support, “the Program needs a robust method of allocating subsidies, and tighter spending rules, to ensure support for those truly in need, regardless of what side of the issue they’re on”.

It is hard to disagree with these recommendations, if one accepts the premise of the Program’s existence. But they show, I think, an additional reason for why that premise is worth challenging. Mr. Hay’s argument is, in effect, that the Program, a necessary or at least a most useful form of government accountability, generates demands for further accountability mechanisms in order to secure its own legitimacy. The watchers must be watched. And then, those who watch the watchers must, presumably, be watched in their turn. It’s not enough for an “accountable selection process” for the Program’s expert panels to exist: someone needs to keep an eye on what results it produces. It’s not enough for the Program’s expenses to be audited: someone needs to read the reports. It’s not enough for the Program to be subject to the Access to Information Act: someone needs to put in those requests. Of course this isn’t a flaw of the Program as such, or of Mr. Hay’s proposals to improve it. The same goes for any government accountability mechanism. And, you might think, accountability all around is good; we want as much accountability as we can get, don’t we?

But there can be too much of a good thing. Who will have the time to dig into the reports on the selection of expert panels, the Auditor General’s reports, and the further reports on the selection of cases the Court Challenges Program funds? The Program is a tiny sliver of the federal government’s total spending; most people are probably unaware of its existence; even those who, like journalists, are aware of it have bigger fish to fry. More accountability mechanisms means more things to keep an eye on, more work, more resources consumed. And the time and resources of the relatively few people or organizations with the expertise to keep an eye on the Program may well be better spent on doing other things. At some point, the margin accountability returns on additional accountability mechanisms are likely to become nil or even negative.

My point is not that we should reject Mr. Hay’s proposals for improving the accountability of the Court Challenges Program. It is, rather, that we should be skeptical of the  Program itself, and of any other mechanism that creates the need for an accountability ratchet that is likely to become counterproductive if not self-destructive. Accountability mechanisms that are part of government are still part of government, and they deserve as much skepticism as any other part of government. Their multiplication, like the growth of any other sector of government operations, creates potential for abuse, and makes government more difficult to oversee and to control. Sometimes, like other government functions, accountability mechanisms are necessary and beneficial. But it is always useful to ask ourselves whether any given one really is, and perhaps even to start with a presumption, albeit a rebuttable presumption, against government intervention. The reasons I once outlined for having such a presumption in the case of government provision of goods and services mostly apply to accountability mechanisms too.

If you have borne with me this far, you probably want to ask: isn’t this whole argument counter-intuitive to the point of absurdity? Mustn’t the government be held to account, whatever the problems attempts to do so engender? Given the government’s scope and power, aren’t accountability mechanisms a necessary safeguard against abuse? But here’s the thing: I don’t think we should accept the government’s scope and power as a given. The fewer things government does, the fewer issues there are to hold it accountable on, and the more readily external accountability mechanisms ― whether the media or citizens suing the government on their own, without its assistance ― are able to deal with it. Instead of having a Court Challenges Program to hold government to account when it legislates, and then additional accountability safeguards to make sure the Program works as intended, how about we have a government that legislates less, and thus is in less need of being held to account? As Ilya Somin says, smaller government is smarter. Or, as one might also say, an accountable government is no substitute for a small government. It is, at best, an ersatz.