Australia 1:0 Canada

Canadians have much to learn from the Australian High Court’s take on election spending limits for “third parties”

The High Court of Australia has just delivered Unions NSW v New South Wales [2019] HCA 1, a decision that should be of interest to readers who are concerned with freedom of expression in the electoral context ― a topical issue in Canada, given the recent imposition of further restrictions in this area by the recently enacted Bill C-76. The decision resulted from a challenge by a number of labour unions to New South Wales legislation that reduced the maximum amount a “third party” ― that is anyone not a candidate at an election or a political party ― is allowed to spend on campaigning in a nearly-six-month period preceding an election, from 1,050,000AUD (jut under a million Canadian) to 500,000AUD. The High Court unanimously held that the legislation was contrary to the implied freedom of political communication, which it had previously read into the Australian constitution‘s provisions requiring “representative” government.

The plurality judgment, by Chief Justice Kiefel and Justices Bell and Keane, finds that the third party spending limits are unconstitutional. That they restrict the ability to communicate is not in dispute. And while the plurality is prepared to assume that these limits are imposed for the legitimate purposes of levelling the campaigning playing field and preventing the wealthy from “drowning out” the voices of the less fortunate, they are not justified. Experts consulted prior to the enactment of the legislation provided no particular justification for recommending that the then-existing spending limits be reduced. A Parliamentary committee, however, recommend that the legislature look into the actual spending needs of third parties, and this was not done either. As a result, there is no reason for saying that the reduced limits are “reasonably necessary”.

Justice Gageler agrees with the plurality’s disposition of the case. He is persuaded of the legitimacy of the state’s pursuit “of substantive fairness in a manner compatible with maintenance of the constitutionally prescribed system of representative and responsible government”. [91] This might, in principle, justify much lower spending limits for third parties, which campaign on single issues, than for parties that must address a broad range of issues in their quest to form a government. However, “[i]t is not self-evident, and it has not been shown, that the cap set in the amount of $500,000 leaves a third-party campaigner with a reasonable opportunity to present its case”. [101] Absent such a showing, the restriction on the freedom of communication is not justified.

Justice Nettle’s conclusion is similar. He accepts the legitimacy of the objective of creating a level electoral playing field ― one on which political parties will be primary players ― and agrees that a legislatures may from time to time review the measures it takes to ensure fairness, including by lowering spending caps previously enacted. However, there must be a justification for whatever measures it takes from time to time. Such a justification is missing in this case. Although it was recommended that more evidence on the needs of third parties be collected, “for reasons which do not appear, that recommendation went unheeded. It is as if Parliament simply went ahead … without pausing to consider whether a cut of as much as 50 per cent was required”. [117]

Justice Gordon, like the plurality, assumes that restrictions on third party spending pursue a legitimate purpose, which she characterizes as the privileging of political parties and candidates. However, in the absence of evidence about the actual need for restrictions set at their current level, “the Court … cannot be satisfied that the level of the expenditure cap is reasonably appropriate and adapted to achieve the asserted constitutionally permissible end”. [150] It was for the State to show that the restriction it seeks to impose was justified, and it has not done so.

For his part, Justice Edelman considers that the reduction in the spending limits imposed on third parties, even as the limits imposed on political parties rose, cannot be explained by the purposes of maintaining a fair and corruption-free electoral system. Rather, it must have had an “additional purpose”, which “was to ensure that the voice of third-party campaigners was quieter than that of political parties and candidates”. [159] In other words, the reduction’s aim was “to burden the freedom of political communication of third-party campaigners”. [160] Justice Edelman considers that, although laws that rely on the relative silencing of some views in order to ensure that all can be heard are legitimate, to aim only at silencing some voices “is incompatible with the maintenance of the constitutionally prescribed system of representative and responsible government”, and legislation so motivated is “invalid”. [160]

Needless to say, I am not qualified to comment on whether the High Court is correct as a matter of Australian law. What I can do is compare its decision with that of the Supreme Court of Canada in Harper v Canada (Attorney-General), 2004 SCC 33, [2004] 1 SCR 827, which addressed much the same issues. (Readers will recall that I am not a fan of Harper, to put it mildly, and included it in my list of the Supreme Court’s five worst decisions of the last half-century in this blog’s recent Twelve Days of Christmas symposium.)

This is most obviously so on the issue of deference to the legislature on the issue of the appropriateness of a limitation of the freedom of (political) expression, and the evidence required for the government to make this case. The Harper majority insisted that courts should approach legislative choices with deference. In its view, “[t]he legislature is not required to provide scientific proof based on concrete evidence of the problem it seeks to address in every case”, and that “a reasoned apprehension of … harm” [Harper, 77] is sufficient to restrict fundamental freedoms protected by the Canadian constitution.

This approach is explicitly rejected in Unions NSW. While the Australian judges avoid directly criticizing the Harper majority, both the plurality opinion and Justice Nettle explicitly side with the “strong dissent” of Chief Justice McLachlin and Justice Major (joined by Justice Binnie). The plurality takes a dim view of the submission “that Parliament does not need to provide evidence for the legislation it enacts [and] is entitled to make the choice as to what level of restriction is necessary to meet future problems”. [44] When legislative choice are made in a way that burden the freedom of political communication, they must be justified. Similarly, Justice Gageler speaks of the need for a “compelling justification”, and insists that “[i]f a court cannot be satisfied of a fact the existence of which is necessary in law to provide a constitutional basis for impugned legislation, … the court has no option but to pronounce the legislation invalid.” [95] Justice Gordon insists that “the Court must … be astute not to accept at face value the assertion that freedom of communication will, unless curtailed by a reduction in the cap to $500,000, bring about corruption and distortion of the political process”. [148]

Another point of contrast between Harper and Unions NSW is the treatment of the so-called “egalitarian model of elections” designed in part to favour the interests of political parties and candidates over those of the civil society groups, disparagingly consigned to the status of “third parties”. According to Harper, election campaigns must focus attention on parties and candidates, including by ensuring that any other participants in the public debate, except the media, will behave unobtrusively. By contrast, the plurality opinion in Unions NSW explicitly rejects the submission that candidates and parties deserve preferential treatment, advanced in part on the basis that elections are “not a choice between ideas, policies, views or beliefs except insofar as such choice may be reflected in the electoral choice between candidates”. [39] Rather, the plurality says, “ss 7 and 24 of the Constitution guarantee the political sovereignty of the people of the Commonwealth by ensuring that their choice of elected representatives is a real choice, that is, a choice that is free and well-informed” [40] ― including by third parties. Justice Gageler, of course, takes the contrary view on this point. Justice Edelman’s position is more complex. He explicitly endorses “a Rawlsian, egalitarian model” [178] in which spending limits prevent some speakers from “drowning out” others. However, he also considers that it is not legitimate to target particular speakers for silencing apart from such an anti-drowning out purpose.

A last difference between Harper and Unions NSW worth highlighting is recognition by Justice Gageler of “the propensity of an elected majority to undervalue, and, at worst, to seek to protect itself against adverse electoral consequences resulting from, political communication by a dissenting minority”. [66] Justice Gageler refers to prior cases where the risk of a government legislating to limit political competition the better to maintain itself in office was explicitly adverted to. Such legislation, he notes, is incompatible with presuppositions of the Australian constitutional order. Although he finds that, in this case, “[t]here is no suggestion of abuse of incumbency” [85] by one party against others, this clear-eyed position is in contrast to that of the Harper majorityr, which ignored the possibility that incumbent governments favour legislation that excludes “third parties” from electoral campaigns in order to avoid unpleasant criticism and so reduce the odds of losing power.

There are more interesting things in the Unions NSW decision than I have room to discuss in this post. For example, Justice Gageler’s comments about the role courts in finding facts that are relevant to deciding whether a statute is constitutional are in contrast to the position of the Supreme Court of Canada in cases such as Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101, and should be very nutritious food for thought for those who are skeptical of the Bedford requirement of deference to trial judges. Justice Eledman’s comments on identifying statutory purpose (and in particular the role of general statements of purpose in the legislation) are also very interesting.

Overall, based on this one decision, I think that Canadians have a great deal to learn from Australians. Admittedly, the length of the High Court’s decisions is a deterrent ― Unions NSW is about 85 pages long, and I take it that it’s pretty short by Australian standards. That’s the cost of so many judges delivering full individual reasons. But the upside is that interesting ideas don’t get swept under the carpet in the process of getting to a set of reasons many judges can sign onto. I’m not saying the Supreme Court of Canada should go back to having each judge deliver his or her own reasons (though I wonder sometimes) but, at any rate, reading the Australian decisions may well be worth our while. In particular, the willingness of the Australian judges to keep a legislature accountable for imposing limits on the freedom of political expression without justification is a welcome reminder that their Canadian counterparts can do much more to protect individual rights in the electoral realm, and elsewhere.

Permanent Campaign or Permanent Censorship?

Richard Pildes has an interesting post over at the Election Law Blog, discussing Michael Ignatieff’s take on the “circumvention” of election campaign spending limits by the Conservative Party of Canada in their “permanent campaign” which, Prof. Ignatieff believes (and, in fairness to him, so do many others), destroyed him as a potential Prime Minister. The “permanent campaign” ― that is, political parties spending on advertising outside of the immediate pre-election periods, in which such spending is tightly regulated by the Canada Elections Act ― is a new phenomenon in Canada. (Not quite as new as prof. Pildes suggests; it started in 2007, when it was directed against Prof. Ignatieff’s predecessor, Stéphane Dion.) Prof. Pildes comments:

Why didn’t parties spend like this in the pre-election period before … ? … No reason, except that it just wasn’t done. Yet once political actors, including parties, believe this approach will work and have the funds to implement it, they naturally escape campaign spending limits by shifting spending to the pre-election period.

This, says prof. Pildes, is a problem not just for Canada, but for any other jurisdiction which limits political spending during the pre-election period, but not outside of it. (Prof. Pildes ties these limits to public financing of political parties, but that’s not a necessary connection, and indeed it has now been severed in Canada. Public financing for federal political parties has been abolished, but the restrictions on campaign spending, and hence the incentives to spend outside the regulated campaign period, remain in place.)

Prof. Ignatieff now favours “ban[ning] party advertising outside of election times,” but prof. Pildes notes that

once regulation moves outside of something clearly defined as a discrete “election period,” the issues become much murkier:  does Ignatieff advocate banning all party spending in support or against candidates at all times?  Or does he envision such a ban starting only a certain number of years after the most recent election, say 2-3 years, in anticipation of the next general election?

Expanding the restrictions on political spending and speech applicable during the election period would indeed be problematic. As I write in a paper on the regulation of political spending by “third parties” ― that is, anyone who is not a political party or a candidate for office ― which should appear sometime in the next few months in the McGill Law Journal,

the free discussion so essential to the existence of democracy and of parliamentary institutions is in Canada 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 at the core of the protection of the freedom of expression.

Are we prepared to accept the expansion of these constraints? And if we are, which constraints should we expand? Only those applicable to political parties, which professors Ignatieff and Pildes discuss, or should we also extend the limits applicable to “third parties,” whose political spending during election campaigns is now limited to an almost derisory amount which, as the dissenting judges in Harper v. Canada (Attorney-General), 2004 SCC 33, [2004] 1 S.C.R. 827 pointed out, that doesn’t allow them to use traditional media to communicate with national audiences?

British Columbia has, in fact, attempted to expand its restriction on “third party” spending to “pre-campaign periods,” first of 60 days and then of anywhere between 0 and 40 days, only for both attempts to be declared unconstitutional by its Court of Appeal, in  British Columbia Teachers’ Federation v. British Columbia (Attorney General), 2011 BCCA 408 and Reference Re Election Act (BC), 2012 BCCA 394. As I wrote here in commenting on the latter decision, I’m afraid that it “is a somewhat wilful, or at least wishful, interpretation of Harper.” The rationale of the Harper majority, which upheld severe restrictions on third party advertising during election campaigns, might be stretched to apply to pre-campaign periods.

But it’s not a sure thing that the Supreme Court would so stretch it. (As best I can tell, BC didn’t appeal the decisions striking down its pre-campaign rules to the Supreme Court, so we had no occasion to find out.) At some point at least, it becomes increasingly difficult to justify silencing, or even muffling, political debate. We might find it acceptable for the 35-day period of an election campaign. But longer, and especially permanent, restrictions come with very high costs for our freedom of expression. The “permanent campaign” might be a detestable innovation, but permanent censorship would be even worse.

Bad Timing

In an interesting story yesterday, the Globe and Mail reported that “British Columbia’s largest public-sector union is appealing a fine of more than $3-million levied by Elections BC over a television advertisement that aired during the spring by-elections.” The union started an ad campaign three days before the by-elections were called. As the article tells the story – mostly with the Union’s perspective – the ad had nothing to do with the specific by-elections; it was directed against the provincial government’s policy towards civil servants in general. But since it disfavoured the party in government, opposing its stance on issues with which it is associated, it counted as election advertising. The union eventually cancelled the ad in the ridings in which the by-elections were taking place, but it had run for four days, which, in the view of Elections BC, was enough to violate the very low spending limits for individual ridings.

The union now says that Elections BC misjudged the amount of its spending (and thus of the fine, which is a multiple of the amount by which it broke the spending limit), counting its province-wide expenses for the duration of the ad campaign as expenses on the specific by-elections. That sounds like a reasonable complaint, but the article does not explain the view Elections BC, and I have not been able to find its decision on its website, so I will not express a definitive opinion.

In any event, this story is an illustration of a trend about which I blogged before. It is that restrictions on spending by “third parties” – that is citizens, unions, NGOs and anyone else except political parties and candidates – are, in Canada, working mostly not to the detriment not of the rich, whose influence they were intended to check, but of the not-so-rich who are able to wield considerable resources by organizing. It is mostly unions, as I noted here, but also, in Québec, the student movement. Another important point is that, as I pointed out in this op-ed about the impact of third-party spending restrictions on the Québec student movement, beginning an election campaign – which in most Canadian jurisdictions the first minister can do practically at will – can effectively silence an ongoing social movement or debate. What this case shows is that a general election might not even be necessary. A well-timed and strategically placed by-election can do the trick.

I suppose I will have occasion to blog about this case again, and probably similar ones too. In the meantime, we would do well to think again about whether our election-spending framework is actually a good thing for our democracy.

The Moneyed Interests

Restrictions on pre-electoral spending by citizens and groups other than political parties and their candidates (known in the jargon as “third-party spending”) have gained a rather unlikely supporter: Tom Flanagan. Prof. Flanagan, arguably Canada’s most prominent conservative thinker, has come out in support of such restrictions in an op-ed in the Globe and Mail.

This might seem surprising because conservatives (and libertarians) have usually opposed restrictions on third-party spending, while the left supported them. (Indeed, prof. Flanagan says he opposed the enactment of third-party spending restrictions while Jean Chrétien was Prime Minister.) The support for restrictions was always based on the fear of the pernicious influence of moneyed interests in politics. John Rawls, for example, argued that without spending restrictions, the rich would take over the political process and prevent the enactment of the sort of re-distributive policies he thought were necessary for society to be just. But the reality, as it turns out, is more complicated, which explains prof. Flanagan’s change of heart.

Prof. Flanagan points out that during the last election campaign in Ontario, public-sector trade unions spent large amounts of money on electoral advertising: “[t]ogether, the three spent more on advertising in the writ period than either of the main parties.” Furthermore, this spending all pursued a single objective – to attack the Progressive Conservative Party. Prof. Flanagan argues that it thus effectively amounted to support for the Liberals. The unions would not have been able simply to give that much money to the Liberals, but the absence of limits on third-party spending allowed them to circumvent the limits on direct contributions to political parties.

Prof. Flanagan thinks this has terrible consequences, though if your politics differ from his, you are likely to disagree. What should not be controversial is that third-party spending limits – or their absence – do not necessarily have the effects Rawls and other supporters of these limits on the left expected them to have. It is not only the rich who have a lot of money. It is also the not-so-rich who are able to pool their resources together, through trade-unions for example, or student unions (which are bound to run into the strictures of Québec’s spending restrictions when an election is called, as I have been saying for months). They too are the moneyed interests whom third-party spending limits prevent from getting their message across as effectively as they would like. Both on the left and on the right, those whose opinion of spending limits is based on the conventional wisdom that they prevent the “rich” from gaining a stranglehold on the political process and thus help the “powerless” need to reconsider their views.

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.