Twelve Banned Books Weeks

Once upon a time, I mused about whether Parliament could ban books as part of its regulation of election campaign spending. The specific question that interested me then was whether the exemption of “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 the definition of “election advertising” in section 319 of the Canada Elections Act (CEA) could be abolished. But now, just in time for Banned Books Week, life ― or, rather, the Public Service Alliance of Canada ― has come up with a somewhat different censorship scenario.

La Presse reports that the Alliance has complained to Elections Canada about political commentator, consultant, and activist Éric Duhaime’s giveaway of 5000 copies of his book Libérez-nous des syndicats! (Free Us from the Unions!). Mr. Duhaime is apparently giving the books away for free in order to counteract an anti-Conservative (and pro-NDP) campaign by Québec’s largest union, the FTQ, to which the Alliance is associated. In the Alliance’s view, the anti-union book falls with the definition of “election advertising” in section 319, and since it is being away for free during the election campaign, the exemption for books sold “for no less than [their] commercial value” does not apply. Since Mr. Duhaime has not registered with Elections Canada to advertise as a “third party” as section 353 of the CEA requires, he is, the Alliance says, acting illegally.

Mr. Duhaime says that he is not campaigning for or against a political party ― only against unions ― and thus is not infringing the CEA. But that’s not quite obvious. The CEA deems to be election advertising

the transmission to the public by any means during an election period of an advertising message that promotes or opposes a registered party or the election of a candidate, including one that takes a position on an issue with which a registered party or candidate is associated. (Emphasis mine)

The key issue, it seems to me, is whether Mr. Duhaime’s book (which, to be clear, I have not read) can be considered as “tak[ing] a position on an issue with which a registered party … is associated.” Is the anti-union position Mr. Duhaime expresses “associated with” the Conservatives ― as the Alliance seems to believe? Or is the pro-union position Mr. Duhaime combats “associated with” the NDP? I’m not sure, but I don’t think that the argument is an impossible one to make. As best I can tell, there is no case law interpreting s. 319 generally or the notion of “an issue with which a registered party or candidate is associated” in particular. And these terms aren’t exactly self-explanatory.

Which, in my view, is a big problem. Here we have a statutory provision that can be applied to punish speech, to impose fines on someone whose “crime” is to give away a book ― and we don’t actually know what it means. Mr. Duhaime probably enjoys the free publicity that comes with the complaint, but not everyone will feel that way. The problem of chilling effect from speech-restricting legislation that is imprecisely worded and thus difficult to interpret in advance of application is a real one.

Here’s another issue with the drafting of s. 319, while we’re at it. One of the exemptions from the general definition of “election advertising” concerns “the transmission by an individual, on a non-commercial basis on what is commonly known as the Internet, of his or her personal political views.” So suppose that Mr. Duhaime had put the text of his book on a freely-accessible website. That would pretty clearly fall within the exemption ― even if the website were only set up for the duration of the election campaign, since the statute says nothing about internet communications having to be “regardless of whether there was to be an election,” as it does for books. But now consider a somewhat different example. Suppose that, instead of just putting the text of his book on a website, Mr. Duhaime makes his book available as an ebook, say through the Kindle store ― again, for free. Does that count as an illegal “distribution of a book … for … less than its commercial value,” or as a legal “transmission by an individual, on a non-commercial basis on what is commonly known as the Internet, of his or her personal political views”? I have no idea. On the one hand, it’s not clear that an ebook ought to be treated any differently from a dead-tree book. On the other, it’s equally unclear why a text in .azw, or .mobi, or .epub format should be different, for the purposes of election law, from the same text in .html format. I guess it would be a fun question to put on a statutory interpretation exam, if you are a slightly sadistic professor.

But again, laws that restrict expression, especially expression on political issues, should not be written for the benefit of slightly sadistic professors of statutory interpretation. If expression must be restricted, as the Supreme Court believes the expression of “third parties” ― that is citizens and organizations who are not candidates or political parties ― must be restricted, at least the restrictions should be clear and narrowly defined. Citizens should not have to guess; nor should they be at the mercy of complaints by other citizens or groups who simply happen to detest their politics.

The shoe was once on the other foot. After the 2003 election campaign in Québec, another union associated with the FTQ was prosecuted by Québec’s election authorities for distributing a pamphlet criticizing a party that took an anti-union position ― a party whose leader Mr. Duhaime was then advising, as it happens. The union then challenged the constitutionality of the Québec legislation on third-party participation in election campaigns ― unsuccessfully. Now, it would seem, labour has learned to use this sort of law as a weapon against its enemies. (In fairness, however, Québec’s law was even more restrictive than the CEA. A union’s distribution of a pamphlet to its own members would not be a violation of the federal statute.) But we should, I think, be concerned that our election campaigns are in danger of becoming twelve-week-long periods for banning books.

Persuasion and Voting from Abroad

When Norman Spector and I debated the disenfranchisement of Canadians abroad on the CBC’s The 180 a couple of weeks ago, he pointed to the fact that some expatriates ― such as Americans he met in Israel while he was Canada’s ambassador there ― vote on the sole basis of the candidates’ policies towards their current country of residence. I replied that there are plenty of single-issue voters in Canada too, and that there is no good reason for treating expatriates differently from them. Life has come up with an ironic twist on this particular argument: an effort is underway in Israel to “to send a small group of Canadians living currently in Israel that will go back to Canada in order to vote in the coming elections [and] encourage the Canadian Jewish Community to go out and vote for him.” The project’s founder, Dan Illouz, claims that “Stephen Harper is Israel’s greatest friend amongst world leaders,” and deserves the Israelis’ help and support.

Mr. Illouz is, clearly, not very well acquainted with Canadian election law, if he thinks that the missionaries he proposes to send to Canada will be able to vote here. They won’t, since they are not registered to do so. He also appears to be unaware if the fact that “[v]oting through absentee,” as he puts it, is not an option available to those Canadian citizens who, like him it would seem, have resided abroad for more than five years. And, while I cannot be sure of that, I somehow suspect that he is equally unaware of Mr. Harper’s government not only having vigorously defended the disenfranchisement of Canadians abroad in the courts, but also having introduced a bill, C-50, that would have made it well-nigh impossible for any Canadian expatriate to vote.

Those Israelis who are contributing to Mr. Illouz’s effort might also want to consider the fact the Canada Elections Act provides that a person who is not a Canadian citizen or permanent resident and does not live in Canada may not “during an election period, in any way induce electors to vote or refrain from voting or vote or refrain from voting for a particular candidate.” Mr. Illouz and his hypothetical emissaries are within their rights, being Canadian citizens, to induce others to vote for Mr. Harper. But to the extent that financial contributions that enable their efforts are themselves a form of “inducement,” those of their contributors who are not Canadian are not. (If you think that’s unjust, consider that the Canada Elections Act also prohibits people who are not citizens or permanent residents from contributing to political parties, and ― after amendments enacted under Mr. Harper’s government ― provides that people who are not citizens or permanent residents and do not live in Canada are not allowed to run third-party election advertising. For my part, I’m not quite sure whether any of these prohibitions are justified, but there they are.)

Anyway, I am writing about this not in order to educate Mr. Illouz and his contributors about Canadian election law, but rather to highlight the inconsistency in that law’s relationship to Canadian citizens who live abroad. They are allowed to contribute to political parties, to advertise during election campaigns (subject to the same, admittedly excessively stringent, limits that apply to all Canadians), and otherwise to seek to influence the outcome of Canadian elections. Yet they are not allowed to vote themselves. Frankly, I don’t see how that makes any sense.

Why Disenfranchising Canadians Abroad Is Wrong

Yesterday, the Court of Appeal for Ontario ruled that Parliament can disenfranchise Canadians who live abroad.  I summarized the decision, Frank v. Canada (Attorney General), 2015 ONCA 536, in my previous post. Here, I make a number of comments that explain why I believe that the majority is wrong, and Justice Laskin, who dissented ― quite angrily, going so far as to call some of the arguments the majority adopted “inventions” ― is right.

First, the majority’s attempt to tie the right to vote to a “social contract” in which one participates by obeying the laws of Canada and paying taxes to Canadian authorities fails not only because the constitutional text explicitly ties it to something else ― namely, citizenship ― but also because our political practice does as well. Permanent residents too must obey the laws and pay taxes, but they lack the right to vote, no matter how long they have lived in the country. Many permanent residents will have plenty of relevant knowledge, and be affiliated in a myriad informal ways with their communities and even Canada as a whole, in addition to obeying the laws, which the majority says are the things on which “the right to vote is premised.” [91] Yet they lack this right. That’s because, contrary to the majority’s assertion, that right is premised on something else.

A second, related, point, is that tying the right to vote to obedience to laws and, especially, to paying taxes, can just as easily serve to disenfranchise Canadians in Canada as those abroad. People who live on the margins of society, perhaps in a more or less deliberate attempt to avoid the reach of its laws, or those who do not make enough money to pay much (if any) tax, could be deemed less worthy of the franchise than other Canadians. As Justice Laskin points out, both the evolution of our electoral laws and the Supreme Court’s decision in Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, 2002 SCC 68 suggest that this reasoning is unconstitutional.

Third, the majority is wrong to invoke the fact that Canadian laws tend not to reach outside Canadian borders as a reason for restricting the expatriates’ right to vote, because that is just a contingent fact about Canadian legislation as it exists now, which can neither be taken for granted nor used to justify the curtailment of a constitutional right. As a matter of law, Parliament is free to legislate extraterritorially. It could, if it wishes, require Canadian citizens who live abroad to pay taxes to Canada on their foreign income ― as the United States requires its expatriates to do ― at its next session. To say that because Parliament does not do so now, Canadians abroad need no voice in electing its members is to let the statutory tail wag the constitutional dog.

Fourth, the majority’s description of the “social contract” as an exchange of obedience to laws, especially fiscal laws, against the right to vote assumes away many important functions of government that continue to affect Canadians who live outside the reach of most Canadian legislation. While it is true that we only (directly) elect legislators, whose main function is to enact laws, we cannot be blind to the fact that in our constitutional system, Parliamentary elections also serve to elect, albeit indirectly, the executive. The executive, in turn, defines foreign policy, and is responsible for a variety of decisions that affect Canadians who live abroad. Will you be evacuated or otherwise helped in a crisis? How will your consulate be staffed? What sort of attitude will you be confronted with at the border when you travel home? And even, what will people think of you when, to the inevitable “where are you from,” you answer, “I’m Canadian”? The answers to these questions depend, if only indirectly and partially, on the results of elections, and thus give Canadians abroad a stake in the government of their country which the majority simply ignores.

Fifth, as Justice Laskin suggests, the sort of country they will return to matters to Canadians who live abroad, no matter how long they do so. The laws enacted today will continue to apply for years, maybe decades, to come. Path dependency is no less real in public policy than in our private lives. Being deprived of a say in the government of Canada today means that you lose that meagre measure of control over its future to which other citizens are entitled, even though you have the same right as they to live there. Indeed, one is entitled to vote, in Canada, on the eve of one’s permanent emigration from the country, but not, outside Canada, on the eve of one’s permanent return.

Sixth and last, at a more philosophical level, the majority’s understanding of the “social contract” is also problematic in its exclusivity. For the majority, one is either a member of the Canadian social contract or of that of some other country. Attachment to more than one society is impossible. If one lives abroad long enough, one simply withdraws from the Canadian social contract, even if one does not become a citizen of one’s new country of resident, and even though, as the majority recognizes, it is quite possible to maintain a subjective attachment to Canada from abroad. Indeed, subjective perception is insignificant. You may consider yourself Canadian, but objectively, you are not. I think that this is a condescending attitude to take, and it is not the least regrettable of the many regrettable features of the majority opinion.

I can only hope that the respondents have the stomach, and the resources, for keeping up their fight (they are, according to a website set up by their lawyers, “considering next steps.”) I can also only hope that the Supreme Court will actually agree to hear their appeal, should they file one. I have, however, no doubt as to what the outcome of such a hearing, if it takes place, ought to be.

Plus ça change…

This is the fourth and last post in the series about my most recent article, “‘Third Parties’ and Democracy 2.0″, (2015) 60:2 McGill LJ 253. On Monday, I introduced the paper, which deals with the repercussions of political and technological changes on our framework for regulating the participation of persons other than parties and candidates in pre-electoral debate. On Tuesday, I discussed political the political changes of the last 45 years, which have resulted in political parties more or less deserting the realm of policy debates, and leaving a void which can only be filled by those whom our electoral law considers to be “third parties” and relegates to the sidelines of pre-electoral debate. Yesterday, I discussed the effect of the technologies and business models of Web 2.0 ― a separation of spending and speech that has made it possible for third parties to participate in electoral campaigns without spending money, and thus without being subject to the limits imposed by our election laws.

Today, I consider the amendments I would like to see made to the Canada Elections Act and to similar legislation elsewhere, in light of the changes to the “facts on the ground” which such legislation covers. Perhaps counter-intuitively, my article argues that such amendments can actually be quite modest. I would prefer more substantial changes, to be sure, but they would require a different, more ambitious argument. While I have hinted at it in various posts here, I do not make it in the article. What I am concerned with there is, as I put it yesterday, keeping open the avenue for third-party communications created by Web 2.0.

To do so, the most important thing, as is often the case, is not so much to improve the current state of affairs as simply not to make it worse. There is a danger that the adherents of a conception of politics where pre-electoral debates are entirely dominated by political parties ― not least the parties themselves, but possibly also some electoral authorities ― will seek to restore the parties’ former privileged position by imposing limits on Web 2.0 communications by third parties not restricted by current rules. How serious this danger really is, I cannot tell. I am not aware of any real proposals to this effect, but then the impact of social media on electoral campaigns is only beginning to be felt. And there is at least a chance that politicians and bureaucrats will recognize the difficulty of regulating citizens’ expression on social media, the huge cost of attempting to enforce such regulations, the dangers of political abuse of the inevitably selective enforcement, and generally the huge amounts of censorship that would have to be imposed to achieve the desired effect.

Beyond this “do no harm” position, we can and should reform electoral laws in two ways, which recognize that in light of the political parties’ unwillingness to debate ideas, it is important to make it easier, not more difficult, for third parties to inject issues of policy into election campaigns. First, the existing limits on third-party expenses should be raised. There is plenty of room for doing so, even without calling into question the principle that their expenses should be limited to amounts substantially lower than those permitted to political parties. As I put it in the article,

the Supreme Court recognized long ago [in Reference Re Alberta Statutes – The Bank Taxation Act; The Credit of Alberta Regulation Act; and the Accurante News and Information Act, [1938] SCR 100 at 132-134], elections to Parliament are a national, not a local concern. It must be possible for Canadians to debate the issues they raise on a national and not only a local scale, regardless of the willingness of political parties to do so. (292)

And second, the rules on third-party communications need to be made technologically neutral. The Canada Elections Act, for a reason that I do not understand, treats online communications differently from more traditional ones, in that it only only exempts online communications by individuals, and not those of organizations (whether corporations, trade unions, etc.) from its definition of electoral expenses. By contrast, for other forms of communications, notably those published in the traditional media, whether exempt from or included in the definition of (restricted) electoral expenses, the messaging of individuals and that of entities are treated in the exact same way. The singling out of online communications for a more stringent rule should be repealed.

While my article is only concerned with federal law, I will say something here about Québec, because its Election Act suffers from the same problems as the federal legislation, but on a much greater scale. Its limit on third-party expenses is an absurdly low 300$, which of course prevents any sort of effective communication other than through Web 2.0 means. (For instance, I have blogged here about the case of Yves Michaud, who published an ad criticizing some members of Québec’s National Assembly for voting to censor him once upon a time, and was fined by the province’s electoral authorities. Mr. Michaud may be an odious character, but why shouldn’t he have been allowed to make his case?) Besides, only individuals are allowed to make their views known as third parties. Corporations, unions, NGOs, and social movements are forced to shut up altogether.

The Election Act’s provisions on third-party participation are also not at all technologically neutral. This has, in the last two election campaigns, resulted in electoral authorities attempting to shut down expression by online “citizen media” ― a website in 2012 and a short documentary in 2014. In both cases, the authorities quickly reversed course, but ― as I argued here ― it was their initial determinations that such advocacy was not permitted by the law that was correct, and their reversal was a deliberate misreading of the legislation, an attempt to mitigate the law’s harshness and obsolescence that was itself contrary to the Rule of Law. The statute urgently needs to be reformed.

To show the need of reform along those lines and, even more importantly, of avoiding pernicious reform in a (likely futile) attempt to restore political parties to a position of which Web 2.0 is depriving them ― and which they do not deserve ― was the ultimate aim of my article. But if I have just succeeded in making you appreciate the importance of the changes ― in politics as well as in technology and business models ― that are shaping the factual background which electoral law regulates, I have already accomplished something.

The Party’s Over

This is the second post in the series about my most recent article, “‘Third Parties’ and Democracy 2.0”, (2015) 60:2 McGill LJ 253. I introduced the paper, which deals with the repercussions of political and technological changes on our framework for regulating the participation of persons other than parties and candidates in pre-electoral debate, yesterday. Today, I want to discuss the changes, in the last 45 years or so, to the respective roles of political parties and “third parties” in political debates. To me, this is probably the most important part of the article, even though it is not directly about election law, or any sort of law, at all. While it is obviously key to my argument about the regulation of elections, I would like to think that it is a contribution in its own right, because it should help us understand the way Canadian politics actually work.

Our electoral regulations, as well as the Supreme Court’s jurisprudence in this area, are based on the idea that political parties are the normal, the central mode of citizen participation in politics. The political process, as theorized, for instance, by John Rawls, is a competition between political parties, which tend to represented various social and economic classes and interests. Much ― though certainly not all ― of the worrying about “money in politics” has to do with this association between parties and social classes, because political competition cannot be fair if the “moneyed interests” all support just one of the parties. Importantly, however, parties not only contest power, but also compete in the realm of ideas. Their campaigns are based on fairly detailed policy proposals, expressed in manifestos and party programmes. Citizens assess these proposals and vote for those that advance their interests ― in theory, anyway, because political ignorance was no weaker then than it is now, and most people simply voted for “their” party without knowing or caring much about what it stood for. And since parties compete on ideas and policy, those who seek to inject their own ideas by other means are regarded as anomalous.

However, as Bernard Manin explains in his illuminating book on The Principles of Representative Government, while this may have been a decent approximation of what politics actually looked like up until, roughly, 1970, this model does not fit the politics of 2015. Parties may still release detailed platforms, but these are less important to their appeals to the electorate now than they ever have been. From representatives of class interests, political parties have remade themselves into vehicles in the service of leaders. Instead of campaigning for the interests of social groups and classes, what parties do is identify a wedge issue, a social cleavage, no matter how superficial and short-lived, that allows them to position themselves on the “right” side, and move their opponents onto the “wrong” one. In addition to, or better in combination with, this sort of tactical positioning, parties rely on demonstrating the leadership qualities of the person at their helm.

While this may sound terribly cynical, prof. Manin points out that there are compelling reasons for the parties to adopt this approach. One is the rise of electronic media, and especially television, which made it possible for party leaders to communicate directly with voters, and made their personalities the focus of the voters’ attention. The other is the increased complexity and unforeseeability of the environment in which governments operate, which makes would-be governors reluctant to commit to policies which they might then have to abandon in the face of changed circumstances ― and arguably also makes it more rational for voters to judge their would-be leaders on their decision-making skills than on specific policies.

Canadian politics, at the federal level anyway (my paper did not look at the provinces, though I suspect there is little reason to think that things are much different there), fits this analysis. In the article, I rely descriptions of the Conservatives’ and the NDP’s campaigns, and that of the “campaign in the media,” in a collection of essays about the 2011 election, which illustrate these trends marvellously. Television coverage, focusing largely on party leaders’ tours through the country, shown mostly as a series of speeches to cheering supports, was central to the campaign ― as it was to every campaign since the 1970s. Substantive policy issues were mostly absent. The two successful (in different ways, of course) campaigns played up the personalities of their Stephen Harper and Jack Layton, respectively, and their leadership qualities. They also, tellingly, attacked the personalities of their opponents much more than their proposed policies. Admittedly, it is difficult to attack the policies of a politician who is not proposing any. But that’s the point. Policy does not matter.

Now even, beginning in the 1970s, parties were abandoning the field of policy ― they stopped being what Pierre Trudeau claimed he wanted them to be, “supermarkets of ideas” ― other entities came to fill the void. The supermarkets were replaced by variety of boutique suppliers: NGOs, think tanks, unions, and more recently social movements. For many citizens who care about ideas, these means of participating in public life are thus more effective, more meaningful, than membership in a political party. Indeed, these entities may be the only force injecting a debate about ideas, which parties would rather avoid, into politics. Yet come election time, they are treated as “third parties,” and silenced by rules that seek to make political parties the central if not the only participants in pre-electoral debate. Besides, as an empirical matter, rules restricting third-party participation seem to affect unions and social movements (such as students in Québec) much more than corporations (which are typically uninterested in participating in electoral politics), belying the concern about money skewing political competition in favour of the wealthy.

Our electoral rules were conceived for politics where political parties dominated not only competition for power, but also debates about policy. While the parties have kept their former role, they have largely abandoned the latter. Yet the rules, and the thinking of the courts that apply them, have failed to take that change into account. It is perhaps too much to ask, but I hope that my paper helps change that.

“Third Parties” and Democracy 2.0

The McGill Law Journal recently published a paper of mine, “‘Third Parties’ and Democracy 2.0”, (2015) 60:2 McGill LJ 253, about which I haven’t yet had the chance to brag here. Unfortunately, I won’t be able (pursuant to the Journal’s policy) to upload the full text of the paper to SSRN for a while. But I want to talk about it now anyway. I’ll introduce it in this post, and talk about some of its themes in greater detail in subsequent ones.

Here is the abstract:

Although the Supreme Court of Canada has described freedom of political, and especially electoral, debate as the most important aspect of the protection of freedom of expression in Canada, no debate in Canadian society is so regulated as that which takes place during an electoral campaign. Parliament has set up—and the Supreme Court has embraced—an “egalitarian model” of elections, under which the amount of money participants in that debate can spend to make their views heard is strictly limited. “Third parties”―those participants in pre-electoral debate who are neither political parties nor candidates for office―are subject to especially strict expense limits. In addition to limiting the role of money in politics, this regulatory approach was intended to put political parties front and centre at election time.

This article argues that changes since the development of the “egalitarian model” have undermined the assumptions behind it and necessitate its re-examination. On the one hand, since the 1970s, political parties have been increasingly abandoning their role as essential suppliers in the marketplace of ideas to the actors of civil society, such as NGOs, unions, and social movements. On the other hand, over the last few years, the development of new communication technologies and business models associated with “Web 2.0” has allowed those who wish to take part in pre-electoral debate to do so at minimal or no cost. This separation of spending and speech means that the current framework for regulating the pre-electoral participation of third parties is no longer sufficient to maintain political parties’ privileged position in pre-electoral debate. While the current regulatory framework may still have benefits in limiting (the appearance of) corruption that can result from the excessive influence of money on the political process, any attempts to expand it to limit the online participation of third parties must be resisted.

And here is the summary of the paper from the introduction:

I begin, in Part I, by reviewing the Supreme Court’s two major decisions on third-party participation, Libman and Harper. In Part II, I describe in more detail the “egalitarian model of elections … premised on the notion that individuals should have an equal opportunity to participate in the electoral process” without regard to wealth, which the [Canada Elections Act, the] CEA and these decisions embrace. In Part III, I explore the assumptions that the CEA and the Supreme Court make about the nature of the political process and the central role that political parties play in it. Then, in Part IV, I describe the changes that have occurred in politics since the framework for regulating third-party participation embodied in the CEA was first conceived. I illustrate the effects of these changes by using the 2011 federal election as an example and show that the assumptions behind the CEA’s framework are no longer valid. This challenges the privileged position of political parties in pre-electoral debate. In Part V, I focus on another, more recent change that I describe as the separation of spending and speech: the emergence of new technologies and business models, in particular those associated with “Web 2.0”―social networks, blogs, video sharing services, and the like―which make it possible for third parties to communicate with large numbers of voters without spending much, if any, money. Finally, in Part VI, I explore the implications of these changes for regulating third-party participation in pre-electoral debates. I conclude that what might be called “electoral campaigning 2.0” does not, in itself, require radical changes to the current legal framework and only suggest two limited amendments to the CEA. Nevertheless, the changes in politics and technology that I describe are significant. Ignoring them is likely to lead scholars, legislators, or judges to unrealistic, and possibly pernicious, conclusions about the law of Canadian democracy. (257-58; footnotes omitted)

I actually posted my favourite (because somewhat flippant), passage from Part III ― the one describing the assumptions behind our current model of election regulation back when I first wrote it, almost three years ago. It takes the metaphor of the “level playing field,” which is key to the Supreme Court’s election law jurisprudence, and considers what happens on ― and around ― that field. The answer is that, in our system, political parties play on the field of pre-electoral debate, while everyone else is expected merely to look on, though the media, in particular, is allowed to cheer. In upcoming posts, I will discuss in more detail the changes, political (Part IV of the article) and technological (Part V), that should lead us to re-think the old assumptions on which our regulatory framework rests ― and which are also, I think, independently important.

There Is Method In’t

To students of the Supreme Court’s “law of democracy” jurisprudence, there usually seems to be something distressingly inconsistent in the ways in which the Court approached the issue of discrimination against smaller political parties in Figueroa v. Canada (Attorney General), 2003 SCC 37,[2003] 1 S.C.R. 912, and that of the silencing of “third parties” in Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827. The former struck down the requirement that a party present at least 50 candidates at an election to benefit from a number of advantages, notably tax-deductibility of donations to it. The latter upheld very severe restrictions on the ability of “third parties” ― that is, persons who were neither parties nor candidates ― to advertise during an election campaign.

As, for example, Michael Pal explains, in Figueroa

the Court’s s. 1 analysis was extremely skeptical,  and diverged from the reasoning by the Harper …. majorit[y]. The regulation of political parties in the fashion adopted by Parliament was no less of a “political choice” than the law governing third parties in Harper … The 50-candidate threshold also engaged the same kind of policy-making role for Parliament in balancing where to draw the appropriate line that led the majority in Harper to defer to the specific cap set on third party spending. … Yet the Figueroa majority persisted in a searching examination under s. 1, because it was the role of the Court to ensure meaningful participation in the electoral process. (10)

But perhaps the two decisions are actually less inconsistent than we tend to assume. A re-reading of Figueroa shows that some of the ideas which caused the Supreme Court to adopt a deferential posture in Harper were already present there.

The first is the belief that political parties are the principal means by which citizens make their ideas heard in the political process. Justice Iacobucci, for the majority, claimed that

political parties have a much greater capacity than any one citizen to participate in the open debate that the electoral process engenders. By doing so in a representative capacity, on behalf of their members and supporters, political parties act as a vehicle for the participation of individual citizens in the political life of the country. Political parties ensure that the ideas and opinions of their members and supporters are effectively represented in the open debate occasioned by the electoral process. [40]

In Figueroa, this belief in the centrality of the parties to pre-electoral debate led the majority to insist that all parties be allowed to compete equally ― among themselves. But in Harper, where the issue was the participation of persons and entities other than parties, the same belief not illogically led the majority to consider their participation as less deserving of protection. Indeed, the majority pointed out that

as the Court discussed in Figueroa, there are few obstacles for individuals to join existing political parties or to create their own parties to facilitate individual participation in elections.  Still, some will participate outside the party affiliations. [113; emphasis mine]

For the majority, participation “outside the party affiliations” clearly seems anomalous.

The second idea which was first expressed in Figueroa but then became much more important in Harper is that pre-electoral debate is a zero-sum game; that one person’s or group’s ability to express his or its views as part of that debate effectively comes at the expense of the ability of others to do the same. In Figueroa, the majority took the position

that there is only so much space for political discourse; if one person “yells” or occupies a disproportionate amount of space in the marketplace for ideas, it becomes increasingly difficult for other persons to participate in that discourse.  It is possible, in other words, that the voices of certain citizens will be drowned out by the voices of those with a greater capacity to communicate their ideas and opinions to the general public. [49]

This view is key to Harper where, combined with the belief in the centrality of political parties to pre-electoral debate, it led the majority to conclude ― with reference to the passage just quoted ― that

[i]f a few groups are able to flood the electoral discourse with their message, it is possible, indeed likely, that the voices of some will be drowned out … Where those having access to the most resources monopolize the election discourse, their opponents will be deprived of a reasonable opportunity to speak and be heard. This unequal dissemination of points of view undermines the voter’s ability to be adequately informed of all views. [72]

And this, in turn, prompted the majority’s holding that not only was it permissible to limit the amounts “third parties” would be allowed to spend in pre-electoral debate, but that these limits could be very low, to avoid all danger of “drowning out” and ensure the centrality of the parties’ discourse.

Figueroa and Harper thus have more in common than we realize, or like to admit. But although there is method in this jurisprudence, it is still misguided. The parties no longer represent the best way for citizens to participate in pre-electoral debate. Indeed, without going into too much detail here (I may have occasion to do so in the near future), they are no longer very interested in debating policy issues at all. The role of injecting policy into public debate is increasingly shifting to “third parties” ― whether unions, NGOs, social movements, or even individuals. Nor is it at all obvious that pre-electoral debate is a zero-sum affair, and that the “drowning out” which worries the Supreme Court is a real danger.

Now, in Figueroa, neither of these ideas is necessary to the outcome. As prof. Pal points out, the legislation at issue in that case “disadvantaged small parties to such a degree that it can fairly be termed an incumbent protection mechanism insulating the large political parties from competition.” (10) This should have been enough to invalidate it. Incumbent-protection mechanisms that have no redeeming value (and, as the Court concluded, the 50-candidate rule was not rationally connected to any pressing and substantial governmental objective) should be regarded as necessarily contrary to the protection of the right to effectively participate in the political process, which the Court has interpreted section 3 of the Charter as protecting. In Harper, by contrast, the Court’s dubious ideas about the political process are central to its conclusion. If they are abandoned, that conclusion is indefensible.

Kingsley & Mayrand on Election Law

I had the chance to attend a great talk at McGill yesterday, with the former and current Chief Electoral Officers, Jean-Pierre Kingsley and Marc Mayrand, speaking and exchanging views on the past, present, and future challenges of election law in Canada. It was great, and especially interesting in that their two perspectives, while similar, were just different enough to make the conversation into something, for lack of a better term, tri-dimensional. Mr. Kingsley was freer in his statements, more activist. He is concerned about the disappearance of public financing for political parties; Mr. Mayrand spoke more of the value of private financing. Still,, on most issues, they largely agreed.

I live-tweeted the conference ― a first for me, and more enjoyable than I expected ― so what I’m going to do, below the fold, is to collect my tweets, as they came. It’s obviously not a verbatim transcript, but rather my record (and translation!) of what struck me most in what Messrs Kingsley and Mayrand said. Here goes.

(NOTE: I accidentally published a very incomplete version of the post last night. Apologies!)
Continue reading “Kingsley & Mayrand on Election Law”

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.

ID OK

It seems like a long time since I’ve blogged about a court decision, especially one not by the Supreme Court. Today is a perfect day to return to that particular genre, because the decision I want to write about, Henry v. Canada (Attorney General), 2014 BCCA 30, concerns the constitutionality of voter identification requirements for federal imposed by Parliament in 2007 ― and which are about to be tightened if the reforms announced by the government today are enacted.

The Canada Elections Act now provides that a voter must present either a single piece of government-issued identification bearing his or picture and address, or two pieces of identification of a list established by the Chief Electoral Officer, both of them bearing the voter’s name, and one, his or her address. (The list of acceptable documents is quite long, and includes not only government-issued identity cards, but also cards issued by schools, libraries, and hospitals, as well as bills and government benefit cheques). Alternatively, a voter may swear an oath and be vouched for by another voter resident in the same district and who has neither vouched for any other voter nor been vouched for him- or herself.

The plaintiffs in Henry claimed that these identification requirements are a violation of the right to vote, protected by s. 3 of the Canadian Charter of Rights and Freedoms. The option of being swearing an oath and being vouched for is, in their view, insufficient to remedy to potential disenfranchisement of voters unable to present the required documents. They contended that a voter should only have to swear an oath, without having to be vouched for. At least, any voter should be able to vouch for another one, regardless of residence, having vouched for others, or been vouched for.

The Court of Appeal accepted the appellants’ claim that the identification requirements amounted to a violation of s. 3 of the Charter. Writing for the Court, Justice Ryan concludes that

the rights given under s. 3 of the Charter are restricted only by citizenship and connection to an electoral district.  This follows from the wording ofs. 3 of the Charter which provides that citizens have the right to vote “in an election of members of the House of Commons or of a legislative assembly”.

Any additional requirements, even if they are, as those at issue here, intended to enhance the integrity of the electoral system, must be justified under s. 1 of the Charter. The purpose of s. 3, which the Supreme Court defined as guaranteeing a right to a meaningful participation in the electoral process, is relevant to defining the “implicit rights”  that it protects alongside the “explicit” right to actually vote, but when that right itself is impeded, no additional inquiry is necessary to find a breach of s. 3.

The question, then, is whether the voter identification requirements imposed by Parliament are “demonstrably justified in a free and democratic society,” under s. 1 of the Charter. After concluding that deference to Parliamentary choices is inappropriate where infringements of the right to vote are at stake, the Court asks itself whether the identification requirements impair that right as little as possible, and whether their negative effects outweigh the positive ones. (The first two elements of the s. 1 analysis, the importance of the legislative objective and the rational connection between the impugned measures and that objective, were not really in dispute.) On the issue of minimal impairment, the Court accepts the finding at first instance

that in both alternatives suggested by the appellants, particularly in the case of a bare oath, there is a meaningless paper trail that cannot be used to detect or punish fraud (par. 92).

Therefore, the legislative objective could not be realized in any other way. As for the balancing of the deleterious and positive effects of the identification requirements, the Court accepts that while the positive effects are quite limited, voter fraud being rare, the deleterious effects will be minimal, as cases of actual disenfranchisement will be rarer still.

The decision is, in a way, quite unsatisfactory. Although I have been worrying about the Supreme Court’s insistence on the importance of evidence in Charter litigation, this is a case where more evidence would have been nice to have. The appellants’ evidence in Henry was largely limited to their personal experience, which is hardly grounds for making any serious conclusions about whether people who want to vote will be disenfranchised. (For what it’s worth, two of the three appellants had, in fact, been able to vote, despite their life circumstances which made obtaining the requisite documents rather more difficult than it is for most people. The third one had not been to vote because she had left the required documents ― which she had ― at home.) The government’s evidence was no better. There have, it said, been occasional prosecutions for voter fraud, but that proves neither that the problem is serious enough to run the risk of disenfranchising citizens, even very few of them, nor that the old rules were insufficient.

In any case if the government wants to tighten the identification rules and abolish the vouching procedure (it is not clear how just yet, because the text of its bill is not available on Parliament’s website as I’m writing this), the Henry decision is likely to be more important for what it says about the courts’ approach to such cases than for its actual holding, which the reform would render moot. Even on this point, however, Justice Ryan’s opinion is a frustrating one. On the one hand, the Court rejected any deference to Parliament. On the other, it accepted the government’s arguments without much evidence to support them. All we know, then, is that the current identification requirements are constitutional. Whether more stringent requirements would be ― and even how courts would go about deciding that question ― is anybody’s guess.