The Law of Permanent Campaigning

Election law might have help create permanent campaigns. Can it be used to solve their problems?

The regulation of “money in politics” in Canada follows a bifurcated approach. Fundraising by political parties is subject to strict regulations that apply evenly throughout the electoral cycle. (There are special rule for candidates in elections and party leadership races.) By contrast, the expenditure of money by parties, as well as candidates, and so-called “third parties” ― which is to say, everyone else ― is only regulated, and very tightly regulated at that, during election campaigns, but not at other moments. Indeed, I once wrote that

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

This regulatory approach was developed at a time when election campaigns were mercifully short, and not much electioneering took place outside of the immediate pre-election “writ period”. But what happens if this is no longer so? What if the campaigning becomes “permanent”, to use a word that has been popular for a while now? The Conservative Party of Canada, under Stephen Harper’s leadership, is sometimes said to have brought the permanent campaign to Canada, but everybody’s doing it now, as Anna Lennox Esselment points out in a Policy Options post. The post is only an overview of a book that prof. Esselment has  co-edited with Thierry Giasson and Alex Marland. I have not read it yet ― I will eventually ― so for now I can only venture a couple of comments about prof. Esselment’s post.

One point worth making is the links prof. Esselment makes between “permanent campaigning” and the way in which party leaders are being put at the centre of politics. That political parties have become primarily tools for the promotion of individual leaders is a point made by Bernard Manin in his book on The Principles of Representative Government; I have, I think, shown that it applies with full force to Canada in my article on  “‘Third Parties’ and Democracy 2.0”, where I looked at the 2011 election campaign. (I summarized that part of the article here.) The development of the “permanent campaign” exacerbates this trend, though it did not create it; the days when parties could be seen as the “supermarkets of ideas” that Pierre Trudeau once thought they ought to be are long gone. As I argued in my article, we should not pretend otherwise, and take that into account in revising the ways in which we regulate the democratic process.

Regulation is the subject of another of prof. Esselment’s observations. She points out that “the rules regulating party financing” are among the “factors … contributing to the permanent campaign”. Once rules were in place to prevent “corporations, unions and wealthy individuals” from financing political parties,

the need to fundraise directly from [large numbers of] individual Canadians became a driving force in party operations. Knowing who might donate, how much and when is now crucial.

This in turn fuels the parties’ need for data about voters and potential donors (as well as people who might provide other forms of support). Prof. Esselment notes that this data gathering creates concerns about privacy, and she is right, of course. But another point worth emphasizing is that the story she tells illustrates the inevitability of unintended consequences. The permanent data-hungry campaign was not what those who clamoured for restrictions on party financing were looking to get, but they got it anyway. Their attempts to solve one (perceived) problem, though they may have been successful, also helped create a different one. A whole set of problems, actually, as prof. Esselment explains, having to do not only with the behaviour of parties as organizations, but also with what they do in, and to, Parliament.

This leads me to the final issue I will raise here. Prof. Esselment suggests that more fiddling with the regulation of political fundraising and expenditures is one “way out” of these problems. We might want

to regulate political party financing outside of the writ period and impose annual spending limits. This could limit a party’s ability to launch attack ads against their opponents between elections. … Reintroducing public subsidies for political parties might also reduce their ferocious appetite for information about Canadians, a key part of fundraising efforts.

The suggestion to “regulate party financing outside of the writ period” is a bit vague ― party financing is already regulated at all times, after all, though as I noted above, the regulations tend to apply evenly throughout the electoral cycle. But spending limits outside the writ period, and public financing, would have predictable, if unintended, negative consequences.

Permanent spending limits are, of course, permanent restrictions on the parties’ (and their supporters’) freedom of expression. We might not care too much about that, seeing how parties are vehicles for the aggrandizement of leaders and not contributors to an ideas-based political discourse, though I think that the freedom of expression even of relatively unsavoury actors has a value. But if parties subject themselves to permanent spending limits, they will not leave the rest of civil society alone. They will introduce stringent limits on the ability of “third parties” ― the disparaging name under which every speaker who is not a party or a candidate is known in election law ― to spend and express themselves as well. This is already what happens federally and in some provinces during election campaigns, and the Supreme Court has approved ― in the name of fairness ― the principle of radically lower spending limits for “third parties” than for political parties. Ontario has now gone further and introduced spending limits for “third parties” that apply six months ahead of an election. Permanent limits on party spending will create a strong pressure for what I have called, here and elsewhere, permanent censorship:

[A]n attempt to control “third party” spending between elections … It would extend to all advertising related to political parties or their candidates, including by taking position on issues “associated” with the party or the candidate. Moreover, in addition to dollar limits, the spending control regime includes onerous registration and disclosure requirements. Any individual, group, or organization that wanted to engage in political discourse would have to register with Elections Canada and keep it informed about its income and expenses. In effect, an extension of the rules on “third party” spending between elections would be a step towards the imposition of a regime of wholesale political censorship in Canada.

As I explain in detail in the posts linked to above, the courts may well find that such a regime is an unjustified violation of the protection of the freedom of expression in the Canadian Charter of Rights and Freedoms. But then again, they may not. But it would be no less terrifying even if the courts were in fact prepared to uphold it.

As for public financing for political parties, it is not obvious that it would reduce their hunger for data about us ― if not as potential donors, then as prospective voters (or indeed opponents who might be dissuaded from voting with targeted negative advertising). It would, however, reinforce the dominant position of large parties ― especially, of course, of the winners of the last election ― and prevent smaller, and above all new, parties from competing with more established ones on anything like equal terms. Perhaps these distorting effects are worth it for other reasons (though I’m skeptical), but I don’t think that the uncertain prospect of reduced data collection could justify them.

Permanent campaigns are, obviously, an important political development, and the law must take them into account. I am looking forward to reading the book on which prof. Esselment’s post is based, and perhaps I will have more to say about the subject as a result. But we must be very careful to avoid creating more problems as we try to solve those we have already identified. Indeed, we ought to keep in mind that if these problems arise from previous attempts at regulation, the solution might not be a fuite par en avant, but a retreat.

Selfie Slow-Down

I have already blogged about one American judicial decision on the constitutionality of a “ballot selfie” ban, which has since been upheld on appeal by the Court of Appeals for the 1st Circuit. And I have also written about the history of the secret ballot, which in my view explains why measures to protect ballot secrecy ― including bans on something that might at first glance appear quite innocuous, like a selfie showing for whom a person has voted ― are actually more important than they seem. Another American decision issued last week, this one by the Court of Appeals for the 6th Circuit, provides some additional food for thought on this issue.

Much of the discussion in Judge Sutton’s majority opinion in Crookston v Johnson is procedural. The case came up as an application for a preliminary injunction preventing the enforcement of Michigan’s prohibition on “exposing marked ballots to others”, (1) and Judge Sutton concludes that it is simply too late to grant one now in anticipation of the elections to be held on November 8. The people who will be running the election have already been trained and have received specific guidance on photography at the polling stations. Changing the rules at this point would create unnecessary confusion. So Judge Sutton does not rule on the merits of the case, which will be assessed later, assuming the applicant still cares. (This situation is reminiscent of the Canadian cases about election debates, which are invariably brought on an emergency basis when the debates are set up, and invariably abandoned before a full merits hearing once the election has taken place.)

But Judge Sutton does make some comments that bear on the merits of the dispute, and, although preliminary, these comments strike me as quite sensible and interesting. One observation is that

many Michigan voting stalls … are simply tall desks, placed next to each other, with three short dividers shielding the writing surface from view. In this setting, posing for a ballot selfie could compromise the secrecy of another’s ballot, distract other voters, and force a poll worker to intervene. (4)

My memory of Canadian voting stalls is a bit hazy ― I skipped the last election because I couldn’t tell which of the parties was worst ― but something like that might be true of them too. And indeed, even if it is not in any given case, it is worth thinking about whether our voting arrangements must actually be planned so as to cater to the “needs” of people wishing to snap a selfie.

Another practical point is that allowing ballot selfies could create a “risk of delay” at the polling stations, “as ballot-selfie takers try to capture the marked ballot and face in one frame—all while trying to catch the perfect smile”. (5) In a brief concurrence focusing entirely on the issue of delay, Judge Guy makes the additional point that “with digital photography, if you don’t like the way you look in the first one, you take another and so on ad infinitum.” (7) He wonders, too, whether “the allowance of taking a selfie also include use of the ubiquitous selfie stick”. (7)

And then, there are the issues that I have already discussed here ― whether the absence of evidence of ballot selfies’ harm shows that there is no reason for banning them or, on the contrary, demonstrates the effectiveness of the bans as a prophylactic measure. Judge Sutton clearly thinks that the latter is the case. Moreover, “[t]he links between [voter corruption and intimidation] and the prohibition on ballot exposure are not some historical accident; they are ‘common sense'”. (5, quoting US Supreme Court precedent.) Chief Judge Cole, dissenting, takes the contrary view, as have other American courts that have addressed selfie bans.

For own part, without expressing an opinion as to which of these views is correct as a matter of U.S. law, I have more sympathy for Judge Sutton’s. While I have been dwelling on the importance of evidence in constitutional adjudication for some time now, and critical of restricting rights on the basis of assumptions no later than yesterday, the evidence is actually there, albeit that it is mostly historical. Moreover, a court should be able to pronounce on the issue of delay without waiting for an “experiment” to take place. Common sense can be an unreliable guide to adjudication, but ― absent evidence to the contrary ― courts should be able to rely on it sometimes.

Prohibitions of ballot selfies might seem counter-intuitive or even quaint. In the United States, they run counter to the very strong tradition of virtually untrammelled freedom of expression. While I sometimes wish that Canadians took more inspiration from that tradition than they do (for example when it comes to the criminalization of “hate speech”), this is one instance where a more even-handed weighing of competing interests might be in order. Judges Sutton and Guy provide a useful reminder of what some of these interests are.

Permanent Censorship, Again

Ontario’s proposal for regulating pre-campaign political spending is wrong

Earlier this week, The Globe and Mail reported that the Ontario government is proposing to introduce legislation that would limit the flow of private money into the political process (and introduce public subsidies to political parties). There is no bill yet, as the government is consulting with (some of) the opposition, but there is a very handy table that sets out the details of the government’s proposal and compares them to the rules in other Canadian jurisdictions. In this post, I want to discuss one aspect of the proposed changes: the limitation of “third-party” spending during the six months prior to a scheduled general election to 600,000$ (see the table at p. 4). This proposal is, in my view, unconstitutional, and it is quite possible, although not certain, that the courts, which are likely to be asked to rule on the issue, will agree.

As is clear from the table, a number of Canadian jurisdictions limit the expenses that citizens, unions, corporations, and social movements who want to make their views on political issues known, collectively known to election law under the derisive name of “third parties,” can incur during an election campaign. The Supreme Court upheld the principle of such limitations in Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569, and it upheld the federal limits in Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827. No Canadian jurisdiction, however, currently limits third party expenses incurred prior to the official election campaign period.

What the table doesn’t say though is that British Columbia has tried to do so, only for its attempts to be twice found unconstitutional by the province’s Court of Appeal. In British Columbia Teachers’ Federation v. British Columbia (Attorney General), 2011 BCCA 408, the Court struck down limits imposed during a sixty-day pre-campaign period. Then, in Reference Re Election Act (BC), 2012 BCCA 394, the Court took the view that limiting third-party expenses during a period that could, depending on the dates of legislative sittings, vary from 0 to 40 days would also be unconstitutional. The province did not appeal on either occasion, so that the Supreme Court has not had an occasion to pass on the issue.

In commenting on the latter decision, I wrote that I wasn’t sure that Court was correct to conclude that Harper did not apply to the pre-campaign limitations of third party spending. Its rationale ― that the civil society needs to be silenced in order to make election campaigning a “level playing field” on which political parties can frolic unimpeded ― could be applied to the period preceding the official campaign, especially if the spending of political parties is also limited during that period, as it would be under the Ontario government’s proposal (see the table at 3). But, as I noted when discussing musings in Québec and within the federal government about limiting third party spending prior to or between election campaigns, Harper can indeed plausibly be read as precluding the extension of spending limits beyond the bounds of the election campaign.

In response to the dissent’s (cogent, in my view) observation that the spending limits imposed on third parties prevented them from communicating effectively, the Harper majority observed

that third party advertising is not restricted prior to the commencement of the election period. Outside this time, the limits on third party intervention in political life do not exist. Any group or individual may freely spend money or advertise to make its views known or to persuade others. [112]

This was an important part of the majority’s reasoning on the way to its conclusion that the spending limits were “minimally impairing” of the freedom of expression, and thus justified under section 1 of the Canadian Charter of Rights and Freedoms.

Beyond predicting of what the Supreme Court would or would not do if confronted with pre-campaign spending limits, it is, however, important not to lose sight of the principles at stake. As I wrote in my post on the possible introduction of limits on third party spending between federal election campaigns,

It is important to appreciate just how far-reaching an attempt to control “third party” spending between elections would be. It would extend to all advertising related to political parties or their candidates, including by taking position on issues “associated” with the party or the candidate. Moreover, in addition to dollar limits, the spending control regime includes onerous registration and disclosure requirements. Any individual, group, or organization that wanted to engage in political discourse would have to register with Elections Canada and keep it informed about its income and expenses. In effect, an extension of the rules on “third party” spending between elections would be a step towards the imposition of a regime of wholesale political censorship in Canada.

There are a couple of additional issues with the Ontario government’s proposal worth highlighting too. One concerns federalism. While provincial and federal electoral processes are separate, the issues and, to some extent anyway, the parties involved in them are not quite distinct. A limit on the ability of a civil society group to speak out about an issue relevant to a provincial election can also be a limit on that group’s ability to speak out on an issue ― that same issue ― relevant to federal politics. If these limits are imposed for a short time, it might be argued ― though perhaps not very convincingly ― that the interference with the other government’s sphere is incidental. But the longer the limits, the more tenuous that case is. There is good reason why Justice Rand wrote, in Switzman v. Elbling, [1957] SCR 285, that “[u]nder [Parliamentary] government, the freedom of discussion in Canada, as a subject-matter of legislation, has a unity of interest and significance extending equally to every part of the Dominion,” (306) and is therefore a federal, not a local concern. We have not given much thought to the relevance of this point to provincial electoral regulations, but we ought to before expanding them as much as Ontario seeks to do.

The other point concerns the proposed definition of “political advertising” (at p.5 in the table). It is modelled on the one in section 319 of the Canada Elections Act, and while not nearly as objectionable as the one used by Québec in section 404 of its Election Act (whose defects I discussed here), it is still problematic in that it is not fully technologically neutral. As I explained here (and in my article on the regulation of third parties and their role in contemporary Canadian politics),

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.

Regardless of the views its government and, eventually, the courts take on the other issues I have raised here, it would be unfortunate if, legislating in 2016, Ontario were to repeat a mistake made by Parliament in 2000.

As I also explained in my article, “third parties” play an increasingly important role in contemporary politics, injecting ideas into the political debate which political parties prefer to focus largely on the personalities of their leaders and a select few wedge issues. I am therefore skeptical about the wisdom of regulating them at all. However, even if a case for limited regulation during the relatively short duration of an election campaign can be made out, there is no justification for extending regulation to long periods of time outside the campaign period. Ontario’s plans in this regard would quite possibly be found unconstitutional by courts, and in any event would be a most unfortunate move in the direction of political censorship. They should be scrapped.

No Solution

The reasons people don’t vote suggest a mandatory voting law would be futile

Statistics Canada has released the results of a survey, conducted in conjunction with the November 2015 Labour Force Survey, to inquire into Canadians’ “Reasons for not voting in the federal election, October 19, 2015.” These results are interesting, albeit not quite accurate. To my mind at least, they are further evidence for the proposition that mandatory voting is not the solution to what ails Canadian democracy.

A word, first, about accuracy. Elections Canada put turnout in the last election at 68.49%, though that doesn’t include voters who registered on Election Day. Adding the number of voting day registrations from the Elections Canada “Report on the 42nd general election of October 19, 2015,” I get to a turnout of 70.4% ― though the report itself actually gives a lower figure, 68%. Anyway, these discrepancies don’t matter for my present purposes. What does is that according to Stats Can, 77% of Canadians “reported that they had voted in the 2015 federal election.” So unless the survey’s sample was unrepresentative (which is unlikely though not impossible), anywhere between 7 and 9% of the respondents lied about having voted.

Of course, this suggests that, for these people anyway, voting already is a duty ― albeit one that they might shirk. Which way this cuts in the debate about mandatory voting, I’m not sure. On the one hand, these people don’t need the law to tell them that there is a duty to vote ― they already believe there is one. On the other, the probably need a relatively small nudge to act on their belief, so a mandatory voting law setting a small penalty for not showing up might be effective at getting them involved in the political process.

What about the quarter of the population who actually admit to not voting? Stats Can has a detailed breakdown of their reasons for not voting. Almost a third say they are not interested in politics. Would the threat of a (small) penalty get them to the polls? Quite possibly, though surely not all of them. But what would they do once they get there? The threat of a fine won’t make them develop an interest that they now lack. At best, they will be honest enough to spoil their ballots. At worst, they will cast reluctant, uninformed votes, which will surely not improve our democratic process.

A relatively small number ― only 7% of the non-voters abstained for “political reasons” other than a lack of interest. I suspect that most of these were people who ― like me ― did not find a candidate or party to their liking. If voting were mandatory, most of us would presumably spoil our ballots (or vote “none of the above” if that’s an option). As I’ve observed here, a spoiled ballot doesn’t really add anything to the democratic process either, and even a small number of “none of the above” votes (7% of 23% is just over 1.5% of the electorate) would not be taken as a serious message by the political actors).

Almost half of the self-confessed non-voters invoked what Stats Can terms “everyday life or health reasons” ― being too busy (almost a quarter of the abstainers), being out of town, or being ill. Quite a few of them, especially though surely not only those who were ill, would be excused under a mandatory voting regime, after an inquisition into their circumstances ― which doesn’t strike me as something that the state should be engaging in, but I suppose the defenders of mandatory voting see things differently. Others, those who consider themselves too busy, may well regard a small fine as a cost worth incurring. Even if the fine does tip their utility calculus in favour of voting, it is difficult to imagine that they would be willing to expend the much more substantial amount of time and effort it would take for them to become reasonably informed about the issues. They would show up at the polls and, like those uninterested in politics (to whom, I suspect, they resemble more than they care to admit), cast an uninformed ballot.

Finally, 8% of non-voters said that they stayed home for “electoral-process related reasons” ― such as inability to prove their entitlement to vote, or to get to the polling station, excessively long lines, or lack or information about the process. I find it difficult to believe that the threat of a fine would change anything to situation of these people, most of whom would anyway be excused.

Making voting mandatory will not improve our democracy. It will not make people who cannot be bothered to take the political process serious invest their time in it. While it will doubtless force some ― though not all ― of them to the polls, they will not be good voters, whatever one’s definition of “good” in this context. Nor will mandatory voting make those who simply don’t like the options on offer change their mind. And it will certainly not cure the sick or provide identification or transportation to those voters who lack one or the other. Even assuming for the sake of argument that abstention is a problem, mandatory voting is not a useful solution.

De la formation du gouvernement

Juste avant les élections fédérales en Octobre, j’avais participé (en compagnie de Hoi Kong) à une mini-conférence à l’Université de Montréal, intitulée « Gouvernements minoritaires et/ou de coalition : Legality and/or Legitimacy ». La chose m’avait échappé à l’époque, mais ma présentation est disponible en ligne. Évidemment, elle ne s’est pas avérée très pertinente vu le résultat du vote du 19 octobre, mais elle pourrait l’être dans quelques années, d’autant plus si le système électoral est modifié entre temps. La voici.

Let Them Vote

I have a new post up at the CBA National Magazine’s blog, arguing that, with one significant qualification, a private member’s bill that would lower the voting age at federal elections to 16 is a good idea and should be enacted. I have already made the case for lowering the voting age, to 16 if not lower still, here and here. So I am happy to see that an MP, Don Davies, has taken up this cause ― and I hope that the government endorses it too, which would make the passage of the bill much more likely.

The one reservation I have about Mr. Davies’ bill as it now stands is that it makes no separate provision for, and indeed no mention of, a minimum age for running for Parliament. As I explain in the National Magazine post, under the Canada Elections Act, almost all eligible voters are allowed to be candidates. But it is not obvious that the minimum age for being an MP and for voting should be the same. At the very least, I think the issue deserves to be debated.

Subject to that, I wish Mr. Davies’ good luck with his bill. Its enactment would make our democracy more inclusive, and thus better.

The Core of the Case against Electoral Reform

Why the concerns of those who want electoral reform do not move me

When I wrote about the constitutionality of electoral reform, I did not want to discuss its merits, beyond saying that I did not believe it had many, or the process by which it should be determine upon, beyond saying I favoured a referendum. While I thought it important to mention my positions in order to avoid my constitutional opinion being interpreted as self-serving, I did not mean to argue for them, not least because I did not think I had any arguments to make that would be very interesting or original. Prompted by some of the comments I received, I have thought about these arguments again, and come to the conclusion that one of them may be of some interest, because it is seldom if ever made.

The two main problems that electoral reform is usually said to address are those of “disproportionality” and “wasted votes.” Disproportionality refers to the discrepancy between the percentage of the votes received by a party and its percentage of seats in Parliament, any such discrepancy being, in the view of those who make this argument, undemocratic. Wasted votes are those that apparently do not serve to elect anyone ― that is, under the first-past-the-post system that we now use, those cast for candidates who do not win the riding in which the votes are cast. Proposed reforms ― ranked ballot and mixed-member proportional representation are the main options, if I understand correctly ― address these issues in different ways and to different degrees, but I take it that those are who support reform are usually motivated by these concerns. (Or at least, those who support reform on grounds of principle rather than partisan interest.) There are other arguments for electoral reform, of course, such as that ranked ballot is supposed to make for kinder, gentler politics (like in Australia, I guess), or increased voter turnout (like in Switzerland, I suppose) but they strike me as speculative at best.

Here’s why concerns about disproportionality and wasted votes do not move me. Imagine a simple election between two candidates ― like the run-off stage in a French presidential election. Say the winner gets 55% of the vote, and the loser gets 45%. But the winner gets the prize, the French presidency for example, 100% of it, and the people who voted for the loser go home and their votes have no apparent effect at all. On the account of our would-be electoral reformers, this election results in substantial disproportionality, and a large fraction of the votes cast in it is wasted. Its democratic character should, therefore, be regarded as very questionable. Except that, of course, nobody actually thinks that. Similarly, nobody thinks it undemocratic that a party with, say, 55% of the seats in Parliament gets to govern 100% of the time while that Parliament exists, and nobody seems to say that the votes of the opposition parties are “wasted.”  The disproportion between 55% of the seats and 100% of the power is actually more significant, both in sheer numbers and, more importantly, in effect, than, say, that between getting 40% of the vote and 55% of Parliamentary seats. Yet it is only the latter that is said to be somehow undemocratic. I just don’t see how that is the case. The complaints of the proponents of electoral reform sound in principle, but they strike me as selective and inconsistent with what they are happy to accept in other situations.

For my part, I am no more bothered by the disproportionality or wasted votes in the elections for Parliament than by the same “problems” that arise within Parliament itself. What concerns me is how to limit the ability of a Parliamentary majority, however constituted, to harm both the opposition in Parliament and the citizenry at large ― including its supporters of course ― while it is in office, and how to prevent that majority from entrenching itself so as to become impossible to remove from office at the next election. Electoral reform is not a solution to these concerns. (Indeed some version of it may ― though this too is a speculative argument ― make the entrenchment problem worse.) It is therefore, in my view, an unnecessary disruption of our politics, and a distraction from the issues on which we should be focusing.

NOTE: Feel free to comment, but I doubt I will respond unless I think your observations respond directly to the point I’m making.