Telling People Whom to Vote for

An illiberal community seeks to dictate its members’ votes. How can, and should, the law respond ― and quite how different are liberal democracies anyway?

When it comes to election campaigns, where does permissible ― and perhaps even laudable ― persuasion end, and deplorable ― perhaps even illegal ― manipulation or indeed coercion begin? This is a fraught question, as a recent story by Sally Murphy for Radio New Zealand illustrates.

The story concerns what seems to be an totalitarian and abusive fundamentalist religious community, whose leaders seek to dictate not only how members will live, but also how they will vote:

Former members of Gloriavale Christian Community say people still there do not have the freedom to vote for who they want in the general election. … [T]hose inside don’t have free access to the internet or news sources and are told as a collective who to vote for. … One former member … told RNZ Gloriavale leaders would choose which politicians would come and talk to the community before an election. 

“They would talk about their policies and what they would do for us then when they left there would be a discussion, but it was usually only a couple of the leaders who would talk,” she said. “They would say we like this party because of this policy and that we should all vote for them because it’s best if we vote as a collective.” 

It seems fair to infer that current members are likely not to feel free to cast a vote at odds with the preferences of their leaders. But does that mean that something untoward or illegal is going on, and further, that something can, or should, be done?

Consider, first, existing election law. (I am leaving out the charities law aspect of this issue, mostly because it’s not my area of expertise. For a discussion of the restrictions on charties’ ability to engage in politics in the Canadian context, see this guest post by Benjamin Oliphant; and for a broader discussion of the tensions at work in the regulation of charities, this guest post by Kathryn Chan.) Section 218 of the Electoral Act 1993 makes it an offence and a “corrupt practice” to

make[] use of or threaten[] to make use of any force, violence, or restraint, or inflict[] or threaten[] to inflict … any temporal or spiritual injury, damage, harm, or loss upon or against any person, in order to induce or compel that person to vote for or against a particular candidate or party … or on account of that person having voted for or against a particular candidate

But ― going by the statements quoted in Ms. Murphy’s story ― no threats are being made in relation to voting specifically. Gloriavale members are told to vote a certain way, but not actually threatened with reprisals if they do not. Besides, as the Electoral Commission points out, the secrecy of the ballot ought to mean that all voters, including Gloriavale members, can “express their preferences free of outside influence or coercion”.

Beyond threats, the regulation of the persuasion of voters focuses (in various ways) mainly on spending and to some extent on the use of mass media, especially broadcast media. Private, face-to-face exhortation is not targeted, and it would be absurd if it were. Would we want political conversations within families or among friends and co-workers to be subject to regulation? I should think not, even though some of these conversations may be emotionally charged, and people may be uncomfortable, or even distressed, at the idea of going against the wishes or preferences of those close to them. Again, the primary remedy for such situations is ballot secrecy, with section 218 outlawing outright threats.

If the Gloriavale leadership is not breaking election law, is it nevertheless acting immorally in seeking to influencing the members’ votes, and should the law be changed? Again, in relation to voting specifically, it’s not obvious to me that a wrong is being done. All sorts of people and entities tell us to vote one way or another. I don’t think that they necessarily wrong us just by doing so ― even if these people are close to us and may be reluctant to offend or contradict them. Just as it would be absurd to have legal rules regulating political discussions among friends, family members, or other close associates, I think a moral rule to this effect would be contrary to widely held views of both of a good life and of good democratic citizenship. The latter, in particular, surely permits people to urge others to vote in ways they consider to be better for the community.

What makes the Gloriavale situation disturbing is the broader atmosphere ― the habit of obedience and the limitation of alternative sources of information and opinion imposed on its members. People who tell us, even quite forcefully, that we should vote one way or another do not wrong us if the choice is ultimately ours. People who keep us from making an informed choice wrong us even if they do not impose their own preferences. Imagine, hypothetically, that the Gloriavale leadership did not tell the members how to vote. To the extent that they are simply denied information from the outside world, the members would have no idea, and would not be in a position to make a more meaningful choice than they are now, and those responsible for putting them in this position are to blame.

However, election law is not the remedy for such cases. The challenge of illiberal and authoritarian communities within their midst is not an easy one for liberal societies, but to the extent it can be solved at all, the solution has to be at a rather more fundamental level. Perhaps ironically, though, extreme examples like Gloriavale can help us reflect on the fact that liberal societies themselves are not entirely innocent of trying to restrict the information and choices available to their members.

Hard restrictions are, admittedly, rare. Yet not non-existent. In New Zealand, the Classification Office, headed by a Chief Censor, is empowered to ban publications in various media. While that outfit’s website’s proclaims that its enabling legislation “does not regulate political speech, the expression of opinions, or ‘hate speech'”, it has notoriously banned the Christchurch shooter’s “manifesto”, which is obviously an example of ― horrible ― political speech. As Ilya Somin has shown, reading it, in all its gruesomeness, is actually instructive. But New Zealanders are not permitted to do it, because the Chief Censor, on his own motion, decided that he knew better. In some other democratic countries, especially in Europe, political choices can be restricted by the authorities banning political parties deemed opposed to democracy or the existing constitutional order.

Of course, these are extreme examples. There is no equivalence between excluding some outlier political options while preserving a wide range of choice and excluding all options but one. Arguably that the most important thing about democracy is not the ability to vote for one’s preferred agenda ― which constitutional constraints or the vagaries of the electoral system, not to mention a shortage of people who agree with it and are willing to run for office ― might make impossible, but simply the ability to make some kind of choice, and so to throw the bums out from time to time. Still, the censorship impulse has a common foundation in both cases ― the distrust of people’s ability to make acceptable choices, and a confidence in one’s ability to choose on others’ behalf.

And softer, more insidious ways of shaping the range of choices available to voters are common. How do teachers are university professors speak about political views outside the mainstream ― or outside what they perceive as the mainstream? How, if at all, do the media cover unorthodox politicians, at least those who do not also happen to be celebrities? Are the above-mentioned regulations of spending on election campaigns structured so as to favour established parties ― as they are in New Zealand, for example, with the allowed spending on broadcast advertising dependent, in part, on a party’s share of the vote in the previous election? To ask these questions is not, by itself, to advocate for root-and-branch reform of the education system, the demise of the legacy media, and complete deregulation of electoral campaigns. But here again the effects of seemingly disparate and often well-intentioned policies and practices commonly followed in liberal democracies are a little less different from those of the practices of demonstrably illiberal communities than we might be quite comfortable with.

The difficulty of ensuring that all voters, including those who happen to belong to heterodox and illiberal communities, are able to take a meaningful part in an election if they wish to should not stop us from trying. Features of the electoral process that help facilitate meaningful participation and might strike us as obvious today, such as the secret ballot, did not always exist: they had to be invented, and the law had to be changed to implement them. One should of course be wary of unintended consequences, including those of well-meaning but excessive regulation. But perhaps there are ways to make things easier for members of Gloriavale and others caught in similar situations, without introducing unnecessarily intrusive laws. But as we look for such solutions, we should remember that existing laws and practices constrain the range of political choices available to all citizens, and that some of them have effects that differ in degree, but perhaps not in kind, from those of the impositions at Gloriavale and elsewhere. Not all authoritarians in our midst are content to run cults.

In Cautious Praise of Rhetoric

Rhetoric―the art of packaging one’s arguments so as to make them more attractive―has a bad name. It is associated with deceit at worst, and meaninglessness at best. It is seen as a distraction. Why should we care about the way arguments are packaged―surely what really matters is their substance? A student put something like this question to me last week when I gave a guest-lecture on constitutional interpretation at McGill, my alma mater, and exhorted students not describe legal principles on which they rely as “penumbras formed by emanations,” as Justice Douglas does with the right to privacy in Griswold v. Connecticut, 381 U.S. 479 at 484 (1965). Why does the inelegance of this formula matter? And even if it does, isn’t that something we should regret and push back against?

Now there are plenty of areas where rhetoric has no place―in pure sciences for example, or even, I think, in social sciences such as economics. In these disciplines, what matters is only that an argument be right. And―and this is a key point―in these disciplines there are generally accepted ways for telling which arguments are right, and which are not. But law is a different beast.

The reason why rhetoric is important in law has to do with what Jeremy Waldron describes, in his great paper on “The Concept and the Rule of Law,” as “the law’s argumentative character.” Law is essentially, by its very nature, a matter of debate and dispute. Even when we talk about what the law is, rather than what it ought to be, we frequently disagree. This is not to endorse the “critical” claim that law is always indeterminate, so that we never know what it is. We often do know, and we often agree about what we know. But there are also plenty of times when we think we know―and other people think they know the exact opposite. And there is no way to tell that a contested proposition of law is correct, even a judgment of a supreme court. As Justice Robert Jackson famously pointed out in Brown v. Allen, 344 US 443 at 540, “We are not final because we are infallible, but we are infallible only because we are final.”

The law’s being an “argumentative” practice is reflected in the elaborate institutions and procedures that we have for giving people a chance to state their views on what the law is. We let people state their views about what the law applicable to their case is, in writing or orally, and often (especially on appeal) both; we let them―and sometimes pay for them to―hire a professional who will present their views to the court. And we expect judges to respond to these views when giving reasons for their decisions. This is not just because being able to speak out makes people feel better. Perhaps it does, but there’s little good in speaking while knowing that whatever one says, the opinion of the listener will not change. The reason for our legal procedures is that we want to give parties to legal disputes a chance to persuade those who will resolve their differences. (Some time ago, I already wrote at some length about “The Forms and Limits of Persuasion” in legal disputes.)

Rhetoric is essential to law because it is an instrument of persuasion. If it is used properly―more on that shortly―it is, if anything, a sign of respect for the intended audience of one’s legal arguments (judges for a lawyer or a litigant; litigants, especially unsuccessful ones, and the public for judges; fellow-scholars and, hopefully, judges for academics). Using rhetoric is telling the people who read you that you take them seriously enough to try to persuade them; failing to use rhetoric is telling them that you either think them too prejudiced to change their minds or don’t believe that their opinion matters enough to try changing it.

But what of the concerns with rhetoric that is insincere? What of the fact that rhetoric is power over those swayed by it, and this power, like any other, tends to corrupt? Part of the answer to these concerns lies, again, in our procedural arrangements, which allow argument to be met with argument, and rhetoric with rhetoric. Parties to disputes can counter the claims of their opponents. Judges, in multi-member panels that typically decide appeals, have the possibility to dissent from the panel’s decision, and respond to its assertions. And of course academia, the press, and civil society (hey, even bloggers!) can also expose the fluff in judicial decisions.

Still, it is important to recall that with power comes responsibility. So while it is proper―and even necessary―to make one’s legal arguments as persuasive and as attractive as possible, there is no justification for lying or even trying to mislead. Professional norms are different for lawyers, judges, and academics, but none of them are justified, for example, in distorting the import of cases they cite. And academics and judges, in particular, should acknowledge the arguments contrary to theirs, even if they reject them.

But there are many ways to say the truth, or what a reasonable person can honestly believe to be the truth. The argumentative nature of the endeavour lawyers are engaged in requires them to choose that which will persuade. Rhetoric is an art, not a dirty trick.