Anglin: Administrative Lawmaking

How administrators could make law in the dark of night.

In Anglin v Chief Electoral Officer, 2018 ABCA 296, the Alberta Court of Appeal dealt with a hidden issue in administrative law: to what extent are administrative decision-makers required to follow guidelines specifically contemplated by legislation?

In Anglin, the Chief Electoral Officer of Alberta imposed a $250 fine for breaching the Election Act. Anglin had typographical problems: “the sponsorship information on his election signs was printed in a font size smaller than that required by the Guidelines established under the Act, and was not sufficiently legible.” Anglin argued that the guidelines established by the Chief Electoral Officer do not constitute law and cannot form part of the governing statute, and as such a breach of the guidelines is not a contravention. To Anglin, there was no legal authority to impose an administrative penalty for breach of the Act [3].

The legislative context was dispositive to the Court. Under s.134 of the Election Act, candidates must ensure that ads comply with certain requirements “…in accordance with the guidelines of the Chief Electoral Officer” (s.134(2)). Under s. 134(3), the Chief Electoral Officer is required to “establish guidelines respecting the requirements referred to in (2)” which deals with sponsorship information. The specific guidelines adopted in this case prescribed a legibility requirement along with a minimum font size.

Based on this “clear” language [9], the Court concluded that the statute itself incorporates the Chief Electoral Officer’s guidelines, and that the legislature “has the power to delegate and the guidelines, like other forms of subordinate or delegated legislation are all forms of law.” This delegation, to the Court, “is incidental to legislative sovereignty.”

The Court’s reasoning raises significant problems from a democratic perspective, even though it is likely consistent with governing authority; my problem is with that governing authority itself. The making of guidelines and soft law, taken too far and unrestricted by legislatures or courts, can do an end-run around the democratic channels of adopting law, susceptible as those channels are to citizen input.

We have a few rules, insufficient as they are, to control this risk. For example, a decision-maker cannot bind herself to non-binding guidelines to the exclusion of governing law; this would be a “fettering of discretion” (see Thamotharem, at para 62).  Despite express statutory authority to issue guidelines, those guidelines may not “have the same legal effects that statutory rules can have. In particular, guidelines cannot lay down a mandatory rule from which members have no meaningful degree of discretion to deviate, regardless of the facts of the particular case before them” (Thamotharem, at para 66). At the same time, for example, guidelines issued by the Human Rights Commission have been held to have the full force of law, even if they are formulated solely by the Commission (see Bell, at para 56).

The image of a spectrum is helpful here. As noted in Thamotharem, we could have guidelines that are issued without any statutory authority whatsoever—these guidelines are still, in the traditional account, useful for guiding the administrator’s decision and providing a foundation for reviewing its legality. At the other end, we could have guidelines that are adopted according to specific delegated authority, and which must be followed as if they were law; the Anglin case is a good example. In the middle, we could have a broad legislative authorization that allows an agency to simply issue guidelines without any indication as to whether they must be followed or not.

From a fundamental democratic perspective, all forms of guidelines issued in any of these ways are trouble for different reasons. If the guidelines in the first case are applied as if they were law, we have a classic fettering problem. If the guidelines in the third case are applied as if they were law, the people subject to the guidelines have no say over binding law to which they are subject. Perhaps one could argue that these democratic issues could be excused because (1) the legislature has the undisputed authority, short of constitutional constraints, to prescribe the level of procedure required for internal agency workings and (2) perhaps this is the price of a more efficient government. But the problem remains.

One might say that the Anglin case, from a democratic perspective, is not problematic at all; after all, here the legislature has said itself what is supposed to happen. But in reality, the situation is more serious. In every case, the legislature has approved the Chief Electoral Commissioner’s making of guidelines, and his power to apply them as if they were law formulated and adopted by the legislature. And from a public administration perspective, this is completely understandable. Why would the legislature want to expend the cost of conducting a deep dive into the font sizes required on a sign? This is, on the traditional account, clearly a matter for “expert” administrators.

But if we view the problem from first principles, the legislature has in effect delegated the actual power of making the law to the Chief Electoral Officer. And if we accept that such guidelines are “hard law,” then we must accept that the law could be passed in the dark of night, because administrative agencies control how and when these guidelines (read: laws) are adopted. The answer that the legislature authorized the delegation puts form before substance. The question is whether the legislature should be able to delegate the power to the Chief Electoral Officer in the first place, given that this law will not be adopted in the ordinary course of the normal legislative process.

The context of font sizes is a bad example for this argument because it is relatively unimportant. But if we allow this form of delegation writ large, extremely broad delegations of law-making authority would be permitted. A statute could simply have one line, saying “The Administrator of [whatever agency] is entitled to make Guidelines which have the force of law.” Because there is no restriction on the power to make laws in substance, these guidelines would bind as if they were law under the current authority.

The US has some experience with this phenomenon, with its nondelegation doctrine. In practice, United States courts rarely interfere with broad delegations. But at least they have a doctrine—that a delegation must be accompanied by an “intelligible principle” to guide agencies. Here, there is no such controlling doctrine.

A restriction on Anglin-type delegations would actually likely attack very few delegations and interfere minimally with good government. The delegation problem does not arise as strongly—(ie) as a strict form of delegation in substance—in a case where the legislature authorizes the agency to make guidelines to structure its discretion. Without knowing for sure, I’d imagine this is a more common form of delegation. But where the legislature simply allows an administrator to make law itself, this seems to be a bridge too far.

 

Constitutionalism from the Cave

The constitution is a binding law, not just an incomplete statement of political ideals

The imbroglio with the Ontario legislature’s enactment of Bill 5 to restructure the Toronto City Council a couple of months before an upcoming election, the Superior Court’s declaration of that legislation unconstitutional, the threatened invocation of the “notwithstanding clause” to override that declaration, and the Court of Appeal’s restoration of what little sanity could still be restored by reversing the Superior Court’s decision has generated a great deal of commentary. Some of this commentary has been very imaginative indeed in coming up with constitutional arguments that would have advanced the commentators’ preferred policy agendas and forestalled the seemingly obvious legal conclusions.

Of course, such a creative argument had prevailed at the Superior Court, which (as for example co-blogger Mark Mancini, as well as yours truly, explained) ignored clear constitutional language on its way to finding that Bill 5 violated the guarantee of freedom of expression in the Canadian Charter of Right and Freedoms. Even more unorthodox reasoning was unleashed in attempts to argue that the Ontario legislature couldn’t actually invoke the “notwithstanding clause”, the constitutional text once again be damned. Mark has written about open letter in which professors who wouldn’t dream of treating originalism as a serious interpretive methodology suddenly turned original-intentist ― but that, at least, was an explicitly political text. Other arguments along similar, or even more outlandish, lines purported to be legal ones.

This outburst of creativity is, of course directly related to a certain way of seeing the constitution that is prevalent in the Canadian legal community (including, but not only, in the academy). On this view, the Canadian constitution ― especially, though not only, the Charter ― is not so much a law that courts must apply as a sort of shadow in Plato’s cave, a vague reflection of true constitutional ideals that the judges must discover and explain to us cavemen. The constitution’s text is not in any meaningful way binding on the courts;  it is only an inadequate approximation, one whose imperfections judges can and ought to circumvent in an unceasing quest to get a clearer view of the ideal constitution. And, of course, this ideal constitution, just so happens to enact the political preferences of the persons urging this view, and presumed (often not incorrectly) to be shared by the judiciary.

Perhaps the latest contribution to the post-Bill 5 constitutional free-for-all is illustrative. It is a post by Colin Feasby, over at ABlawg, arguing that section 3 of the Charter, though it ostensibly only guarantees the right of Canadian citizens “to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein”, really also applies to municipal and other elections, and to referenda. Now, I have learned a lot from Dr. Feasby’s law of democracy scholarship (which has also been cited and relied on by the Supreme Court!). But this post is nothing more than a call for the judiciary to wilfully re-write the constitution we have so as to bring it closer to an idealized view of what a good constitution ought to be according to Dr. Feasby (and many others).

Dr. Feasby argues that “the lack of constitutional protection for important democratic processes” ― such as municipal elections ― “is an unnecessary defect in our constitutional arrangement”. “Unnecessary” a word that I wouldn’t use, and as will presently be apparent, Dr. Feasby uses it advisedly. However, I agree with him to this extent ― the lack of constitutional protections for municipal institutions is indeed a shortcoming of our constitution, as I have suggested here.

Dr. Feasby, though, is not suggesting a constitutional amendment to remedy the defect he identifies. Rather, he “proposes a way that the Supreme Court of Canada can remedy this defect”. He argues that “courts have a role in ensuring that the democratic process functions so that the sovereign will of the electorate may be expressed without distortion”, which is true, if somewhat beside the point in matters where the will of the electorate is not, legally speaking, sovereign, including in municipal elections. The question, though, is how far the courts’ role extends. Dr. Feasby thinks it allows the courts to embrace what he describes as a “purposive and … generous approach to interpreting Charter rights”, and “impose a rule” according to which

Where a government, Federal or Provincial, delegates a legislative role to a democratically chosen body or where a government, Federal or Provincial, effectively delegates a decision to the electorate in a referendum, section 3 of the Charter applies.

In other words, “a body elected in processes governed by section 3 cannot delegate its power to an elected body chosen by electors with lesser constitutional protections”.

Dr. Feasby anticipates two objections to his proposal. First, he expects people to argue that it would get in the way of worthy reforms of municipal and other institutions. His response is that “so long as those changes are consistent with the principles that animate section 3 of the Charter“, nothing would get in their way. Fair enough, I suppose. The other objection Dr. Feasby foresees is based on the concern about section 3 claims being brought by people who are not in the intended electorate for a given election (say, the residents of a municipality). Such claims should simply be rejected ― as would that of “Canadian citizens resident in Alberta” demanding “the right to vote in Provincial elections in Quebec”. That too seems fair enough.

There are other, more serious, problems with Dr. Feasby’s argument, however. A practical one is that, even in the form given to it by Dr. Feasby, it reaches very far indeed. Municipalities, band councils, and school boards are not the only entities that might be described as “democratically chosen” entities to which governments delegate legislative powers. Various professional bodies (such as law societies) and agricultural marketing boards come to mind; so do, perhaps, universities, whose powers ― which include the ability to regulate large swathes of student and staff conduct ― are ultimately exercised by (partly) elected boards and senates. (Whether the universities are subject to the Charter in at least some areas is an open question, but there are good arguments for that view.) It’s not at all obvious to me that, “the principles that animate section 3 of the Charter” can be usefully applied to such bodies, even assuming that they can be to municipalities and school boards. And it’s not at all obvious that the argument for rejecting the claims of persons excluded from the relevant electorate ― say, the consumers of professional services or of agricultural products ― can be dismissed as easily as  those of Albertans looking to vote in the Belle Province.

This problem becomes even more pressing if we take up Bruce Ryder’s suggestion “that a province that is bound by s.3 democratic norms shouldn’t be able to do an end run around them after creating subordinate governments” ― seemingly regardless of whether these “subordinate governments” are themselves meant to be democratically elected. If this principle were taken seriously, it would amount to a non-delegation doctrine on steroids, preventing the exercise of legislative power by undemocratic bodies ― which means pretty much all of the administrative state. Anti-administrativist though I am, even I don’t actually favour this approach. In truth, I don’t suppose that Professor Ryder favours it either. He simply makes an argument that furthers his preferences in a particular controversy, and doesn’t worry about its implications in future cases. I’m afraid this is symptomatic of the treatment of the constitution not as a law, but as a series of results-oriented propositions subject to permanent revision from one case to the next.

Equally symptomatic of this way of thinking is the fact that Dr. Feasby apparently does not see coming another objection, a principled rather than a practical one. This objection is, quite simply, that his proposal is a perversion of the constitutional text, a blatant attempt to expand it beyond what it was quite clearly designed to do, and what it not only originally meant but still means. Even if one believes that the constitutional text should be read according to the meaning of its terms today, “an election of members of the House of Commons or of a legislative assembly” does not mean “an election of members of a municipal council”, or “an election of the benchers of a law society”. Dr. Feasby invokes the “living tree” view of the constitution, but he advocates something different than just reading the text in light of evolving social mores or trying to use “progressive interpretation” to “accommodate[] and address[] the realities of modern life”, as the Supreme Court put it in Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 SCR 698, at [22]. It’s not as if municipal election were a new phenomenon unknown to the framers of the Charter. It’s just that Dr. Feasby thinks that the Charter is only an imperfect statement of an “aspiration … to be a truly free and democratic society”, which can be given whatever contents a court, under the guidance of progressive advocates, can come up with in a given case.

Needless to say, I do not share this view. It is contrary to the terms of the constitution itself (specifically, section 52 of the Constitution Act, 1982, which provides both that “[t]he Constitution of Canada is the supreme law of Canada” (emphasis mine) and that “[a]mendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada” ― which says nothing about the Supreme Court amending the constitution in the absence of the political consensus required to do so. It is destructive of the Rule of Law. And it is especially galling because many of the same people who advocate this view of the constitution not as binding law but as merely suggestive of (their) political ideals demand that political actors ― such as the present Ontario legislature ― that do not fully share these ideals comply with judicial decisions based on them. I think it’s right to demand that political actors comply with the law, including the law of the constitution. But why on earth should elected officials comply, not with the law, but with the philosophical preferences people who are not elected to anything? There can be no real constitutionalism in Plato’s cave. It’s time to climb out.

Deuxième Moisson

Tout comme il y a quatre ans, le DGE essaie de censurer une intervention de la société civile dans la campagne électorale québécoise

Les campagnes électorales ont leurs habitudes, leurs rituels. Les autobus, les slogans, les débats des chefs. Certaines de ces traditions sont communes à bien des sociétés démocratiques, d’autres sont plus locales. Une qui est particulièrement québécoise ― mais ne devrait pas pour autant être source de fierté ― c’est la lettre du Directeur général des élections (DGE) sommant un représentant de la société civile qui tente de se prononcer sur les enjeux de l’heure de se la fermer. Le rituel vient d’être renouvelé, comme le rapporte La Presse, avec cette fois Équiterre, dans le collimateur du DGE pour avoir diffusé les résultats d’un questionnaire remis aux principaux partis politiques et portant sur leurs politiques en matière d’environnement.

Je racontais un tel épisode, impliquant les producteurs d’un court documentaire critique du Parti québécois et de sa « Charte des valeurs », alias la Charte de la honte, lors de la campagne électorale de 2014. J’ai dit, à l’époque, que les penseurs et juristes « progressistes » qui ont cherché à limiter le rôle de l’argent en politique en limitant sévèrement les dépenses autorisées en période électorale récoltaient là ce qu’ils avaient semé. Ils s’imaginaient que les limites de dépenses feraient taire les riches, mais en réalité, elles s’appliquent d’abord à avant tout aux étudiantsaux syndicats ou aux individus impopulaires. En 2014, on a visé les défenseurs du pluralisme. En 2018, on vise les environnementalistes. La tendance, encore une fois, se maintient.

Il faut souligner qu’il y a quatre ans, le DGE avait alors fini par faire marche arrière ― au bénéfice de la liberté d’expression, mais au mépris de la Loi électorale. En tordant le sens des définitions pourtant claires de ce qui est et n’est pas une « dépense électorale » (prévues aux articles 402 et 404 de la Loi), le DGE a réussi à éviter l’opprobre médiatique qu’allait provoquer un épisode de censure. Mais la Loi électorale, elle, n’as pas été changée pour permettre à la société civile d’intervenir dans les campagnes électorales. Il n’est pas impossible, je suppose, que le DGE se démène encore pour ne pas censurer Équiterre, même si ce sera, comme je l’expliquerai à l’instant, très, très difficile. Cependant, même si la manoeuvre réussit, la censure ne sera que partie remise jusqu’à la prochaine campagne électorale. C’est à la Loi électorale, et non à son application par le DGE, qu’il faut s’attaquer pour régler le problème une fois pour toutes.

L’article 402 de la Loi électorale définit comme « dépense électorale »

le coût de tout bien ou service utilisé pendant la période électorale pour:

1° favoriser ou défavoriser, directement ou indirectement, l’élection d’un candidat ou celle des candidats d’un parti;
2° diffuser ou combattre le programme ou la politique d’un candidat ou d’un parti;
3° approuver ou désapprouver des mesures préconisées ou combattues par un candidat ou un parti;
4° approuver ou désapprouver des actes accomplis ou proposés par un parti, un candidat ou leurs partisans.

Cette définition s’applique aux dépenses des candidats et des partis aussi bien qu’à celles de la société civile, et il n’est pas surprenant qu’elle ratisse large. La production et diffusion du questionnaire d’Équiterre tombe sous le coup de cette définition, puisque celui-ci vise à diffuser certains aspect des programmes des différents partis et aussi, par l’usage de symboles visuels (coche verte, crois rouge) à approuver ou désapprouver les mesures préconisées par ceux-ci.

Deux problèmes se posent cependant. D’une part, il y a à la fois l’insuffisance et la vétusté des exemptions prévues à l’article 404. Contrairement à la disposition équivalente de Loi électorale du Canada, celui-ci n’exempte pas les communications d’un groupe (par exemple, un syndicat) à ses membres et n’est pas technologiquement neutre, exemptant la diffusion de nouvelles ou éditoriaux « dans un journal ou autre périodique » ou encore « par un poste de radio ou de télévision », mais pas par de nouveaux médias opérant sur internet. En 2014, le DGE a fini par décrire le documentaire en cause comme étant un « média citoyen » pour l’exempter de l’application de l’article 402. C’était, selon moi, à tort, puisque la Loi électorale n’exempte que certains médias, et n’autorise pas le DGE à en inventer de nouvelles catégories exemptées. Quoi qu’il en soit, je ne vois pas comment on pourrait user du même procédé pour aider Équiterre.

D’autre part, la Loi électorale limite excessivement les dépenses électorales des membres de la société civile. En fait, elle les interdit presqu’entièrement, ne faisant qu’une exception minimaliste à l’alinéa 13 de l’article 404, qui permet à un individu (ou un groupe de personnes ne possédant pas la personnalité morale) de s’enregistrer pour, ensuite, engager des dépenses d’au plus 300$ ― mais sans pourtant « favoriser ni défavoriser directement un candidat ou un parti ». Équiterre, si je comprends bien, est une personne morale, et ne pourrait se prévaloir de l’exemption, même si sa part du coût de la production du questionnaire dont on lui reproche la diffusion s’élevait à moins de 300$. De plus, il me semble clair que le questionnaire, même s’il se veut non-partisan, vise à favoriser l’élection de partis ayant des politiques environnementales qui reçoivent l’approbation d’Équiterre et à défavoriser l’élection des autres.

Ces restrictions sont draconiennes. Il est ridicule d’interdire aux acteurs de la société civile de prendre part au débat pré-électoral pour peu qu’ils choisissent d’obtenir la personnalité morale. Il est ridicule d’avoir un plafond de dépenses ― non-indexé, contrairement à celui des partis et candidats! ― de 300$. Il est ridicule d’exiger qu’une personne voulant engager des dépenses tout à fait minimes doive préalablement s’enregistrer auprès du DGE. Il est ridicule d’interdire les interventions qui favorisent ou défavorise l’élection de partis nommés. Même si l’on accepte le principe général de la limitation de dépenses et celui de la primauté des candidats et des partis en période électorale, les restrictions imposées par le législateur québécois sont ahurissantes. Elles ne sont pas justifiées. Elles sont, selon moi, inconstitutionnelles, même si la Cour d’appel du Québec en a déjà décidé autrement.

Ainsi, je pense que le DGE fait son travail en s’en prenant à Équiterre. Il applique la Loi électorale. Cependant, les dispositions en cause n’ont pas lieu d’être. Le législateur québécois devrait s’empresser de les revoir de fond en comble, sinon de les abroger. À défaut, ou d’ici là, c’est malheureusement à Équiterre d’en contester la constitutionnalité. Cette contestation ne sera pas facile, mais, selon moi, elle aura des chances réelles de succès. La Cour suprême a certes avalisé les dispositions de la Loi électorale du Canada limitant la participation de « tiers » aux campagnes électorales, mais, comme je l’ai déjà souligné, celles-ci sont bien plus permissives que celles de la loi québécoise. En attendant, le décret ordonnant la tenue d’élections générales demeure un bâillon.

 

Not That Kind of Voting

What New Zealand’s Electoral Commission’s attempt to boost turnout gets wrong about voting, and what we can learn from it

There will be a general election in New Zealand this Saturday. As is customary in such circumstances, there is some hand-wringing going on about what turnout is going to be like ― it was almost 78% in 2014, which in Canada, never mind the United States, would be considered sky-high, but is regarded as worryingly low in New Zealand. And the Electoral Commission is doing its part in trying to encourage people to vote, among other things by publishing this sleek video that recently showed up in my Facebook feed (and by using other ads based on the same theme):

The trouble, as I see it ― though I will not claim to speak for Kiwi abstainers ― is that, if you think about it for a second, this video’s true message about voting is precisely the opposite of the one it is intended to convey.

We “vote every day”, we are told: for snoozing or getting up; for dirty or clean underwear (that one, I suppose, is of particular relevance to politics); for whether to be a nice person or a not-so-nice one; and for a whole lot of other things. And it follows, apparently, that we should also vote in the election (or those entitled to do so should, anyway ― I am not, since I’m not yet a permanent resident). In other words, according to Elections New Zealand, voting for a party and a candidate to represent you in Parliament is just like making one of those everyday decisions that you are used to making, well, every day. Except, of course, that it isn’t, and in a number of ways.

Perhaps most obviously, if done with a modicum of seriousness, voting in a election is a good deal harder than deciding whether to hit the snooze button or to get up already. (I’ll call that sort of decision-making “voting”, as opposed to voting.) Voting requires one to acquire substantial amounts of information about the candidates and their platforms, about the world and the ways in which the candidates’ proposals fit or do not fit with what we know about it, and ideally also about how the electoral process itself works. (Another video from the Electoral Commission cheerfully showcases the voters’ utter ignorance about the latter point, as if equanimity were the appropriate response to it.) Relatively few people are well informed voters, and even some, perhaps quite a few, of those who are not at least realize that they have work to do in order to become at least somewhat knowledgeable ― though many will never do that work, for reasons to which I’ll presently return. And quite apart from informational difficulties, voting requires one to ponder incommensurable values (do vote, say, for the candidate with the better tax policy or the one more likely to respect the constitution?). By contrast, one doesn’t need to work very hard to “vote”. “Voters” typically have all the information they need from personal experience, and the values at stake are also less abstract and easier to sort out.

The second crucial difference between voting and “voting” is that the “voters” are the ones who live with the consequences of their decisions, whereas voters are not. If you keep on dirty underwear, you are the one who stinks. If you haven’t had occasion to learn that in the past, there’s a reasonable chance that you will learn now. By contrast, if you vote to keep a lousy politician in office, most (and perhaps  all) of the cost of that vote (however small a fraction of the total cost is attributable to an individual vote) is absorbed by others. You may even profit from your bad decision, either because the politician rewards his or her supporters at the expense of  the community as a whole, or simply because voting in that way gave you a satisfaction that is greater than the costs that vote imposes on you ―  though again the costs to the community as a whole are substantial. Moreover, it is often difficult to trace bad outcomes to bad votes, or good outcomes to good ones. The difficulty is sometimes subjective ― a voter who doesn’t understand a modicum of economics will not be able to tell that relative impoverishment resulted from the protectionist policies he or she supported. But it is often objective. Policy is complex, and it is difficult even for knowledgeable people to link causes with effects with much certainty. As a result, voters do not learn from the consequences of their decisions in the way “voters” do.

In short, voting and “voting” are rather different activities, and just because we do a lot of the latter, and do it reasonably well, it doesn’t follow that we should do the former, or that we can do it with any competence. We “vote” well enough because each “vote” is (usually) a relatively straightforward decision and, even when it is not, we have strong incentives to learn enough, and to be objective enough, to decide well, because we are the one living with the consequences of the decision. These reasons don’t apply to voting, which involves complex decisions and trade-offs, which are difficult enough to manage even for unbiased and well-informed decision-makers ― but we lack the incentives to be either of these two things because we do not in a meaningful way bear the consequences of our votes.

Of course, I have no idea whether the Electoral Commission will be successful at persuading people to go to the polls despite the faulty premises underlying its ad campaign. But if it does, this will, I am afraid, be an additional reason to distrust voters, who let themselves be fooled by what is really a well put-together effort at misdirection. Rather, the message we should take from the ad is the one that Ilya Somin delivers in his book Democracy and Political Ignorance: Why Smaller Government Is Smarter: the more decisions we can make by “voting” rather than voting, the better off we will be. Whoever wins this week’s election should really think about that, rather than fret about turnout rates. Don’t worry though: I won’t be holding my breath.

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 rules 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.