political parties – Double Aspect

The $100 Question, in Court

A challenge to Québec’s harsh limits on political contributions has a decent chance of succeeding

As reported last week by Le Soleil, a citizen of Québec, Yvon Maheux, is challenging the constitutionality of both the province’s $100 yearly cap on donations to political parties and some of the collateral consequences of a conviction for infringing this cap. In my view, much of the claim has considerable merit, and at least a reasonable chance of success. As I wrote when Québec was first considering lowering the amount its citizens were allowed to contribute to political parties from $1000 to $100, such a low limit is quite clearly unconstitutional, given the Supreme Court’s recognition that spending money to advance one’s political views is a form of expression that is entitled to the protection of the Canadian Charter of Rights and Freedoms.

As Mr. Maheux’s notice of constitutional question (kindly provided to me by his lawyer, Antoine Sarrazin-Bourgouin, whom I thank) explains, in 2016 he paid a provincial party, the Coalition Avenir Québec, $100 for taking part in a breakfast it organized, and then another $100 as a fee to take part in the party congress. For his trouble, he was prosecuted for breaching the $100 yearly cap on donations to political parties, provided for by section 91 of Québec’s Election Act. Section 564.2 of that Act provides that, if convicted, Mr. Maheux will face a minimum fine of $5000. Moreover, the infringement of the contribution cap is deemed a corrupt electoral practice (section 567), meaning that a conviction carries a number of additional consequences ― notably the disqualification from voting or running for office, as well as the loss of “the right to engage in partisan work”, both for five years (section 568).

This is a draconian regime. For one thing, the contribution limit is remarkably low. For another, the consequences for breaching it are astonishingly severe. Neither the Canada Elections Act nor Ontario’s Election Finance Act, for example, impose a mandatory minimum punishment for financial offences; nor do they deem making an excessive contribution a corrupt practice; nor do either Parliament or Ontario strip persons convicted of corrupt practices of their “right to engage in partisan work”. New Zealand ― which of course does not limit contributions to political parties at all, and is the least corrupt country in the world nonetheless ― does nothing of the sort either.

But does draconian, in this instance, also mean unconstitutional? The cases raises a number of distinct constitutional issues. The first is whether the infringement of the freedom of expression effected by the limitation of contributions one can make to a political party is justified under section 1 of the Charter. (That the limitation is a prima facie infringement of the freedom of expression must follow from the Supreme Court’s decisions in Libman v Quebec (Attorney General), [1997] 3 SCR 569 and Harper v Canada (Attorney General), 2004 SCC 33, [2004] 1 SCR 827, although these cases concerned spending independent of parties.) The other issues have to do with the constitutionality of the various consequences of a conviction for breaching the contribution limit.

Regarding the constitutionality of the limit itself, there is no precedent directly on point, I think, but it seems to me that the Québec government will be hard-pressed to show that it is minimally impairing of the freedom of expression. A legislature is entitled to some, perhaps considerable, deference in a line-drawing exercise of this sort ― Libman and Harper indicate that the courts will accept that there ought to be some limit on contributions, and any given figure is bound to be somewhat arbitrary. Still, deference can only extend so far; there is a range of acceptable alternatives, but this range is not infinite. And even if a higher limit would (of course) be somewhat less likely to attain the legislation’s anti-corruption objectives, the issue, as Chief Justice McLachlin’s majority opinion … put it, is only “whether there is an alternative, less drastic means of achieving the objective in a real and substantial manner“. That no other jurisdiction in Canada (and perhaps elsewhere) has seen it fit to set a contribution limit anywhere near this low is a strong indication that Québec’s purposes can be substantially achieved through less drastic means.

The $100 limit also fails, I think, at the final stage of the section 1 analysis, which concerns proportionality between the rights limitation’s benefits and its effects on the rights claimants. These effects, in this case, are significant; indeed, the limit renders Quebeckers’ right to contribute financially to a political party of their choice virtually nugatory. Mr. Maheux’s personal story is an eloquent illustration of this fact. So is the simple arithmetic that shows that a donation of $2 a week would be illegal. This all is particularly galling because the Supreme Court’s law of democracy jurisprudence ― especially Harper but also, before it, Figueroa v Canada (Attorney General), 2003 SCC 37, [2003] 1 SCR 912 ― suggested that participating in the activities of political parties was political participation par excellence, to be valued and protected above others, as I explained here. Québec’s restrictive approach to political financing means that individuals such as Mr. Maheux can be prevented from developing their engagement with political parties, even as they are also prevented from participating in political debates as “third parties”, by spending money on advertising during electoral campaigns. Politics in Québec risks becoming even more of an insider activity ― ostensibly in the name of a fight against corruption. This makes no sense to me.

As for the consequences of conviction, there are three distinct issues. The first one is whether the disenfranchisement of those convicted, which is an obvious infringement of the right to vote protected by section 3 of the Charter, can be justified under section 1. In Harvey v New Brunswick (Attorney General), [1996] 2 SCR 876, the Supreme Court upheld the disenfranchisement, for five years, of a member of a provincial legislature who had been convicted of trying to induce a person who was not entitled to vote to do so. Harvey was, of course, decided before Sauvé v Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 SCR 519, which struck down the general disenfranchisement of prisoners serving sentences of two years or more, but I don’t think that Sauvé calls it into question. The Harvey court accepted that the temporary disenfranchisement of those convicted of corrupt electoral practices was a proportionate way of pursuing the specific purpose of protecting the integrity of elections, with which the general disenfranchisement provisions at issue in Sauvé had nothing to do.

That said, accepting that legislatures can disenfranchise people who compromise the integrity of the democratic process, the question is how far this principle extends. We wouldn’t accept, I think, the disenfranchisement of people who negligently infringe some technical rule about the reporting of a candidate’s expenses. But, again, how do we ― and, more to the point, how does a court ― draw lines? Again, I am not aware of judicial guidance on this point, but looking at what other jurisdictions do is instructive. The lists offences that are labelled as corrupt (or illegal) practices and can lead to disenfranchisement are not identical, but both federally (in section 502 of the Canada Elections Act) and in Ontario (in section 97.1 of the Election Act) the focus is on interference with the composition of electorate (involving voting under various false pretenses or, conversely, preventing electors from voting), or the process of casting ballots. An individual exceeding contribution limits is not deemed guilty of a corrupt practice. Although it is far from certain that the Charter prohibits this, there is, I think, at least a viable argument to be made for this proposition.

The next, related, issue is whether it is permissible not only to disenfranchise a person found guilty of having engaged in some form of corrupt practice, but also to deny him or her the “right to engage in partisan work”. As mentioned above, I do not think that any Canadian jurisdiction except Québec does it; I don’t know if any other democratic country does. The prohibition is an obvious infringement of the Charter freedoms of expression and of association. Can it be justified? Once more, I am not aware of judicial decisions directly on point, but it is possible to venture a few observations. One is that Québec is deliberately targeting political expression and association, which are at the heart of the Charter‘s protections. Another is that it’s not obvious how a ban on “partisan work” is connected to the integrity of the electoral process as such, or even of the political financing regime; at the very least it is seriously overbroad, because much of what might be fairly described as “partisan work” ― a term that Québec’s Election Act does not define, but uses in a number of provisions that suggest that it should be given a broad meaning ― has nothing to do with with either voting or fundraising. Third, once again the experience of other jurisdictions suggests that Québec’s ban is not minimally impairing, and indeed that it is likely quite unnecessary. And fourth, given its breadth, the ban’s deleterious effects on those subject to it surely outweigh whatever social benefits it might be said to have.

Finally, in his notice of constitutional question, Mr. Maheux indicates that he will argue that the cumulative effect of these various sanctions ― not any of them individually, mind you ― amounts to a violation of the prohibition on cruel and unusual punishments in section 12 of the Charter. The test here is whether the punishment is grossly disproportionate, compared to the one that would have been appropriate in the circumstances. This is of course a highly subjective assessment, and I am pretty skeptical of this claim as a standalone ground for constitutional challenge. If a court grants Mr. Maheux’s claims under sections 2 and 3 of the Charter, it is superfluous to consider the section 12 argument. If it thinks that the infringements of sections 2 and 3 are individually justified, I can’t imagine it holding that collectively they are grossly disproportionate; this would strike me as an odd result.

Be that as it may, Mr. Maheux’s challenge is mostly serious and, while we lack specific, on-point guidance from the courts because the provisions of Québec’s Election Act at which it is aimed are so unique, I think it has at least a reasonable chance of success ― perhaps even a very good one. At the level of political morality, the legislation that Mr. Maheux is attacking is indefensible. It is vastly more repressive than it needs to be, and appears to have been enacted in complete disregard of the rights of those affected by it (as well as of the desirability of a competitive political system). I hope that the law recalls Québec’s legislature both to its constitutional duties and to its senses.

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.

Crashing the Party

Andrew Coyne says we should re-think how we choose party leaders. So here are my thoughts.

In a recent column in the National Post, Andrew Coyne argues that “it is time to rethink how we choose party leaders” ― at least if we care about the institution of Parliament, and don’t think that “MPs are nobodies, and the role of the leader is to look good on TV”. As someone who cares about Parliament, he argues that we should go back to “the classic Westminster model”, where party leaders are chosen by the party caucus ― like, say, in Australia. Mr. Coyne is not alone in making this point; Dale Smith has done so repeatedly (for example in this Policy Options post about his new book), and others have too. But, although they are among the more thoughtful observers of the Canadian political scene, their arguments leave a number of significant questions unanswered.

One is simply whether the benefits that they are promising us will materialize if the clock is turned back on the tendency to broaden, instead of narrowing, the constituency that chooses party leaders. Mr. Coyne argues that leaders chosen by their caucus would be “battle-tested and ready to do the job a party leader is supposed to do in our system: lead a caucus in Parliament”, as well as more accountable to the caucus. Moreover, leadership contests would not consume “the vast amounts of time and money” they now do. That last point is no doubt true, so far as it goes ― though while I hope that it’s not an entirely reliable guide to the reality of politics, if you’ve watched the original, BBC version of the House of Cards, you might be a bit skeptical about the intra-caucus leadership contests being any less immoral than the current Conservative leadership race that has prompted Mr. Coyne to write his column. Urquhartian cynicism aside, the frequency of leadership coups in real-life Australian politics seems to disprove Mr. Coyne’s argument that caucus members are be the best placed to chose an accountable and effective leader. If they were any good at it, why would they always be changing their minds?

Part of the reason is that, however much Mr. Coyne may deride this, and however much we may regret this, it really is a very big part of a party leader’s job to look good on TV ― and while caucus members know this, and start worrying when the leader’s polling numbers dip, they might not actually be the best at predicting who will do this job well. In the “audience democracy” described by Bernard Manin in his book on The Principles of Representative Government, leaders are more important than parties, in no small part precisely because of their ability to speak directly to voters through the electronic media. As I explained in an article in the McGill Law Journal, Manin’s “audience democracy” model fits Canada very well (I summarized that part of the article here). Again, this state of affairs may be a cause for regret, but it is a product of technological and social trends beyond our control; changing the way in which party leaders are selected won’t reverse them.

But suppose I am wrong about this, and reverting to having caucuses selecting party leaders would in fact be a useful thing to do. The other question that I have after reading Mr. Coyne is whether he proposes a legal intervention to force parties to adopt his preferred mechanism for choosing leaders. Parties, after all, are not going in the direction he is advocating ― quite the contrary. Delegated conventions used to be the norm, but they are a thing of the past now. Leaders are chosen by membership as a whole and, in the case of the federal Liberals ― as with a number of parties around the world ― it’s not even just by membership, but by self-identified “supporters” too. And though my instinct is to treat this is evidence that the parties know something that Mr. Coyne and those who agree with him don’t, the Tories’ current misery notwithstanding, it at least is conceivable that there is a collective action problem at work. The parties, and the public, would all be better off (let’s assume) with leaders chosen by caucus, but the one that moves to that system first will be criticized for being undemocratic, so no one dares take the plunge.

Would this prima facie case for legislative intervention stand up to scrutiny? One obvious problem might be that such an interference with the parties’ internal affairs might be challenged as a violation of the freedom of association protected by paragraph 2(d) of the Canadian Charter of Rights and Freedoms. Even if the courts were to find a violation, there would no doubt be some material for an attempt at a section 1 justification, but I don’t know if it would be enough. I don’t recall any freedom of association cases about political parties, so any assessment as a matter of positive law would be rather speculative. But even putting a possible Charter challenge to one side, interference with the party members’ freedom should count as an argument, though perhaps not a conclusive one against legislation.

Another issue to consider would be the risk of a one-size-fits-all approach, given the vast disparities in the sizes of parties and caucuses. Many registered parties, of course, have no Parliamentary caucus at all; some others have a very small one, perhaps even a single MP. If leadership selection by caucus were mandated, that could create perverse outcomes ― including a party’s lone MP selecting his or her own successor as leader, should he or she wish to resign. Of course, it would be possible to write legislation so that it would apply to caucuses of a certain size ― but that seems to lead to perverse consequences of its own. A party would be forced to abandon an existing membership-selection system in favour of caucus-selection upon reaching a certain size, and possibly return to one upon falling below the threshold again, which strikes me as odd, though perhaps that’s just me.

Ultimately though, the idea of imposing caucus selection of party leaders runs into the same problem as most attempts at regulating parties. Why can’t the voters settle it? If caucus selection causes parties to have better leaders, then people will presumably vote for them ― perhaps especially given that leaders are so important in the “audience democracy”. The prima facie case for regulation assumes that voters would (irrationally) prefer a flawed but more “democratically” selected leader to a better one picked by a caucus. But while the voters’ irrationality should not be underestimated, this seems hard to believe. Would voters ― who do not seem to pay a whole lot of attention to party leadership contests in the first place ― be so beguiled by the claims of the more “democratic” parties as to overlook substantial differences in leader quality?

It seems to me, ultimately, that Mr. Coyne’s complaint is less about the political parties that have somehow been so naïve as to abandon the virtues of caucus selection in favour of the vice of giving a broader spectrum of constituents a say in how they will be led than it is about voters who fall for the charms of TV-savvy populists. Ideally, he effectively says, we wouldn’t give them the option of voting for these populists at all, leaving them to choose among safe options vetted by the political establishment. The argument has its appeal, during a Conservative leadership race said to be led by a pair of populists, not to mention the Beeblebrox presidency south of the border. But can we count on party caucuses to stem the tide of populism for long? If they are thwarted by these guardians of political propriety, will not the populists launch their own parties (especially if a form of proportional representation, which Mr. Coyne favours, were ever implemented)? I have no firm views on this, but I am skeptical that caucus selection of party leaders, whether voluntarily implemented or enforced, can do us much good.

(Still) a Convention?

At his History News blog, Christopher Moore is arguing that “responsible government is not a ‘convention’.” In his view, the “basis of responsible government in Canada” is right there in the constitutional text ― specifically, in the provisions of the Constitution Act, 1867 that deal with money votes. Dale Smith replies in a post at his own blog, Routine Proceedings, pointing out that these provisions make “no mention of a PM, or cabinet,” reflecting the fact that these are indeed the creatures of “the unwritten conventions that we inherited from the UK.” Mr. Smith has the better of this particular debate ― but his insistence that responsible government is purely conventional overlooks sources of constitutional law other than the text.

Mr. Moore claims that “Section 54 of the Constitution Act, [1867] … sets out in plain language that only the cabinet can make and propose the raising and spending of money,” while “53 … bluntly states that only the House of Commons can give approval to the cabinet’s proposals for getting and spending.” He argues that “[s]ince getting and spending money covers everything a government does, these two sections make the government responsible to the Commons.” This is quite wrong.

First, the language of section 54 is anything but plain since, as Mr. Smith points out, it does not even mention the cabinet, and speaks of the Governor General instead. It convention that requires the Governor General to act on the cabinet’s advice. The constitutional text does not say that. Second, section 53 doesn’t say that “only the House of Commons can give approval” to money bills. It says that such bills must “originate in the House of Commons,” but they must, as all other bills, be approved by the Senate too. It is again convention that dictates that the Senate will not stand in the way of a money bill approved by the Commons. And third, one cannot simply equate the rules dealing with the passage of money bills with those of responsible government. For one thing, not only money bills are matters of confidence on which a cabinet will stand or fall ― so is the Speech from the Throne, and so can be other bills, if the government so chooses. And for another, there is no law of nature that says that money bills must be matters of confidence at all. In the United Kingdom, section 2 of the Fixed Term Parliaments Act 2011 means that they are not ― it takes a separate vote on a motion in prescribed terms for the House of Commons to express its lack of confidence in the government. It is, yet again, convention that (still) singles out votes on money bills as having a special constitutional importance in Canada. In short, while the text of the Constitution Act, 1867 was written with the conventions of responsible government in mind, it neither comes close to codifying them nor can otherwise be understood as “the basis of responsible government in Canada.”

That said, it is important to note, as Mr. Smith does not, that in Canada constitutional text is not all there is to constitutional law, and that it is possible ― and in my view likely ― that the rules of responsible government belong to that part of constitutional law which is not reflected in the text itself, and thus are not only conventional. In Ontario (Attorney General) v. OPSEU, [1987] 2 S.C.R. 2, Justice Beetz suggested that

[i]t may very well be that the principle of responsible government could, to the extent that it depends on … important royal powers [which may be entrenched by the references to the ‘offices’ of the Governor General and the Lieutenant-Governor], be entrenched to a substantial extent. (46)

More recently, and more importantly, in Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704, the Supreme Court took the view that the (legal) constitution encompassed, among other things, an “architecture,” consisting of “[t]he assumptions that underlie the text and the manner in which the constitutional provisions are intended to interact with one another.” [26] An interference with that architecture, the Court opined, amounted to a constitutional amendment. Now, the conventions of responsible government are surely among “the assumptions that underlie the text” of the Constitution Act, 1867, which concern “the manner in which the constitutional provisions are intended to interact with one another.” The text says nothing about the Cabinet, the Prime Minister, votes of confidence, or the Senate’s deference on money bills. But it would not have been enacted in its existing form had the existence of these institutions and rules not been assumed and universally accepted.

This leads me to the conclusion that, although the rules of responsible government are of clearly conventional origin, and the constitutional only leaves room for them to operate (in addition to referring to them, obliquely, in the preamble), they are now entrenched and legal rules. This is not to say that they are, or ought to be, justiciable. Perhaps courts would hold to the orthodoxy, expressed in the Patriation Reference, [1981] 1 SCR 753, that “the remedy for a breach of a convention does not lie with the courts,” (882) though I am not certain that they would. Yet just as a modification to the assumptions regarding the respective roles of the House of Commons and Senate requires, according to the Reference re Senate Reform, a constitutional amendment with provincial consent because it modifies the constitutional architecture (a view which the Supreme Court said “is supported by the language” [64] of the Constitution’s amending formula), so I believe would a attempt to change the rules of responsible government, say by limiting the scope of what counts as a vote of non-confidence. This would, in my view, be the case quite apart from any interference with the vice-regal office, though this may play the same sort of supporting role that the constitutional text played in Reference re Senate Reform.

I’d like to make one additional observation, regarding Mr. Smith’s claim that while

Responsible Government can function without [political] parties … in a theoretical world with vampires and unicorns, … it will never happen in real life. … The practice of parties developed for a reason. Maintaining confidence without them is a fool’s errand.

The conventions of responsible government gelled in the United Kingdom in the 1830s. There already were political parties by then, and there had been for quite some time. However, these parties were looser and much less disciplined than those to which we are used now. And they were indeed rather less good at maintaining confidence in the cabinet. The strong, disciplined, and effective parties that we know now emerged gradually, in response not only to the need for maintaining confidence but also to the broadening of the franchise which had only begun in 1832, and continued over the following decades. So while we almost certainly need political parties of some sort in order to maintain an effective system of responsible government, these parties need not look and operate the way they do today.

A Bad Fit

I blogged about Michael Chong’s proposed “Reform Act” back when it was first tabled as Bill C-559, criticizing both the substance of the changes it sought to introduce into the Canadian democracy, and the choice of legislation as the vehicle for effecting these changes. The bill (now C-586) has been much amended, and passed by the House of Commons recently. It now heads to the Senate. The original C-559 would, among other things, have forced federal political parties to give their caucuses the power to expel members (taking it away from the party leader) and to dismiss the leader him- or herself upon a secret vote of more than 50% of the caucus members. C-586, as it now stands, requires the caucus of each recognized party in the House of Commons to choose, after each general election, whether to grant itself these powers.

This change does not really address my criticisms of the original project’s substance. Among other things, I didn’t like the fact that, by allowing causes to remove the party leader, the Reform Act would in effect allow them to veto the choice of a different, and much broader, constituency ― whether the delegates at a leadership convention, or a party’s entire membership, or even its members and “supporters.” To me, this seemed, and still “seems a decrease, rather than an increase, in democracy.” At a minimum, this shows that the Reform Act is not a well-thought out intervention in our political arrangements. It changes some elements of the system without touching other, directly related ones. From their diametrically opposed perspectives, two op-eds published by the National Post this week confirm this.

One is by John Pepall, who argues that the Reform Act will fail to address the problem of the concentration of power in the hands of party leaders, because

[t]he authority the leaders exercise comes from their having been elected by the party — that is, the extra-parliamentary party, rather than the caucus — by virtue of which they are invested with indefinite power for an indefinite term.

As Mr. Pepall notes,

[t]he idea that parties should choose their leaders has become so entrenched in our political culture that Chong didn’t dare propose that MPs choose their leader.

The other op-ed is by the Liberal MP (and former leader who might know a thing or two about occupying that position without much support from his caucus), Stéphane Dion. Mr. Dion was one of only 17 MPs who voted against C-586, and has taken to the Post’s op-ed page to explain his vote. He notes that, unlike in the countries from which Mr. Chong found his inspiration, “in Canadian democracy, it is a longstanding tradition that the leader is elected by the party membership,” whose will would thus be undermined by a vote of the caucus. He adds that a caucus can be “regionally unbalanced,” presumably making it even less representative of the party membership.

Messrs. Pepall and Dion thus point to the disconnect between the “entrenched” “tradition” of party membership choosing its leader, and the Reform Act giving caucuses the ability to grant themselves the power to kick out the leaders. However, they draw radically different conclusions from their observations. Mr. Pepall is hoping for a “Super Chong” who would have the courage to go against the tradition and “get people to understand what needs to be done to make party leaders MPs’ leaders instead of their parties’ chosen commanders.” In other words, go further in the direction of other commonwealth countries where the caucuses not only fire, but also choose their parties’ leaders. Mr. Dion, by contrast, wants the party memberships to remain in control. “[I]n a sound democracy,” he writes, “MPs need to secure approval of their respective party memberships before giving themselves such a power [to fire their leaders].”

My own sympathies lie with Mr. Dion. There is something perverse in wanting to improve our democracy by severing the link between party leadership and membership. However much contempt Mr. Pepall can have for what he describes as

a mish-mash of political enthusiasts who enjoy working in elections, long-time loyalists who dutifully serve from election to election, birds of passage swept in by an issue or a fetching new leader and instant members bussed in for a nomination or leadership contest and never seen again,

they are a broader and more representative constituency than a few dozen, or even a couple hundred, members of a caucus (which can indeed be unbalanced in any number of ways, as Mr. Dion points out). Party memberships are declining, as Mr. Pepall points out, but some parties are responding by opening leadership selection to non-members as well. Even those that are not seem to be moving towards one-member-one-vote arrangements, which give more people a direct say in the choice of a leader than the delegated conventions of yore.

Be that as it may, it remains the case that the Reform Act is a bad fit with the Canadian political system. It’s not that that system is particularly good. There is indeed a good case to be made for the proposition that it is broken. But if that is so, then fiddling with one particular element of it, while ignoring the way in which that element interacts with others can hardly be the solution.

There Is Method In’t

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

As, for example, Michael Pal explains, in Figueroa

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Permanent Campaign or Permanent Censorship?

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

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

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

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

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

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

the free discussion so essential to the existence of democracy and of parliamentary institutions is in Canada at no point so constrained as during electoral campaigns. No debate in Canadian society is so regulated as the one at the heart of our parliamentary democracy and thus at the core of the protection of the freedom of expression.

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

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

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

Intelligent Life on Parliament Hill

In an interesting recent blog post, Brent Rathgeber, an independent MP, discusses the Supreme Court’s decision in Canada (Attorney General) v. Bedford, 2013 SCC 72, and Parliament’s eventual response to it. Mr. Rathgeber’s post deserves attention for a number of reasons. Beyond its immediate subject, which is of course interesting in itself, it is relevant to the debate about the role of MPs that has been rekindled by the proposed “Reform Act” (my posts on the topic are here). In addition, Mr. Rathgeber has an interesting, albeit in my view unpersuasive, theory of the proper role of courts and of judicial review, which I will address in a separate post.

Mr. Rathgeber agrees with the Supreme Court’s decision, writing that

Sadly, there is no shortage of evidence to support [the] proposition [that these three Criminal Code Prohibitions made practising a legal trade unsafe and that is in violation to the Canadian Charter’s protection of security of the person]. Serial killer Robert Picton and Edmonton’s Project KARE’s Task Force on nearly a dozen murdered or missing women from “at risk” lifestyles are only a couple of the examples of how streetwalking is a dangerous, sometimes lethal, vocation.

As for what Parliament should do now, he notes that the government, which in his view is “[n]ot the least bit interested in harm reduction,” will be tempted by the “Nordic model” of criminalizing the purchase (though not the sale) of sex. In his view, however, doing so would be a mistake. Most importantly, as the Bedford respondents say, this approach still drives prostitution underground and thus makes it dangerous in much the same way the Supreme Court found to be unconstitutional. For another,

the liberty of purchasers also attracts Charter protection; if one could be jailed for purchasing sex, the Nordic Model becomes constitutionally suspect. I am searching for a product that is legal to sell in Canada but illegal to purchase. I cannot come up with an example.

Better to rely on “the approach Canada takes with respect to other morally challenging products such as tobacco, alcohol, and even exotic dancing”: licensing, regulation, and prohibition only where those involved are there as a result of coercion or are minors. This “approach is imperfect in all instances, but is likely preferable to an attempt to prohibit prostitution or unregulated anarchy.”

We can agree or disagree, of course. But what is certain is that this is a well thought-out position. Furthermore, Mr. Rathgeber is the rare politician who acknowledges that the politicians’ ability to shape the world is not unlimited. But of course his ability to think and, especially, to speak, so freely is a consequence of his being an independent MP, not beholden to ― and also, therefore, unable to influence ― any party. Were he still a member of the Conservative caucus, it is more than doubtful that he would have been able to express the same views in the same public way.

Which is a shame. Mr. Rathgeber is, one hopes, not the only thoughtful MP; one hopes that he was not the only one among his former party colleagues. It would surely be better if the intelligent and thinking MPs were able to speak their minds and deliberate about legislation which Parliament enacts. And it is important that such deliberation happen not only behind the closed doors of a party caucus, but also in public.

Conservative MP Michael Chong’s Bill C-559, the “Reform Act,” intended to increase the independence of individual members of Parliament from their resepctive parties’ leaders, might seem like a way to make this more likely. But there seems to be little reason to believe that it would have allowed Mr. Rathgeber to express himself publicly while remaining a member of the Conservative caucus. Bill C-559 would make an MP’s caucus membership subject to the will of his or her riding association, which would need to approve his nomination as the party’s candidate, and caucus colleagues, who would have the power to expel him or her, taking these powers away from party leadership. But party instances (whether leadership or riding association) did not force Mr. Rathgeber to leave the Conservative caucus. He chose to leave, citing his “comfort level in caucus,” policy disagreements, and the fact that the legislative process is subject to control by “unelected staffers” within an “opaque” Prime Minister’s Office. With Bill C-559, a conflict with caucus colleagues could lead to an MP’s expulsion ― indeed, the will of a party leader who, for whatever reason, chose to tolerate an unpopular gadfly MP might be overridden. And Bill C-559 does nothing to address the MPs’ lack of control of, or even involvement in, the legislative process.

Mr. Rathgeber’s story certainly suggests that something is rotten in our Parliament ― but also that the “Reform Act” would not stop this rot. It would be better, it seems to me, to try to take advantage of the intelligence and intellectual curiosity which, though it often seems otherwise, still exist on Parliament Hill, by involving members in the legislative process ― which, after all, is what their job description calls for. No legislation is necessary to make this happen ― only a change of attitude of party leaders who would let their colleagues be more than cogs in an electoral machine, and arguably also of the media who would not make any attempt at thinking out loud and deliberation as an opportunity for creating “gotcha” scandals and questioning the strength of a party leader. The trouble is that minds are much harder to change than laws.

Damn Your Party?

In my post last week assessing the merits of Bill C-559 (a.k.a. the “Reform Act“), I pointed out that it risked creating or embittering conflicts between the caucuses and members of political parties. In particular, I wrote that

[i]t is at least conceivable that a leader would lose the support of the caucus while retaining the support of the party as a whole; perhaps more realistically, a party may elect a new leader who does not enjoy the support of the caucus … In such cases, how would it be legitimate for the members of the caucus to dismiss the leader and, in effect, impose their views to the party members [and potentially supporters]? Bill C-559 acknowledges something like this concern by providing that, upon dismissing a leader, the caucus only has the power to appoint an interim replacement, not a permanent one. But, given the practices of Canadian political parties, even giving a caucus veto power over the members’ choice (which is what C-559 amounts to) seems a decrease, rather than an increase, in democracy.

In a recent op-ed in the Globe, Doug Saunders notes this potential conflict too ― but on his reading of the political situation, it party members rather than MPs who are the potential bad guys, and the MPs the saviours of democracy who need more power and freedom. Mr. Saunders worries about “dues-paying members of [the] politicians’ parties, gathered in a fluorescent-lit hotel ballroom and predetermining the identities and actions of those supposed representatives,” “the most mysterious and unregulated force in politics.” The members, he claims, have too much power; so much that party leaders choose to act in their interests rather than in those of the country. Parties run on a set of widely discussed policies, but they also have obscure manifestos that only their members care about. Political leaders must have the courage to ditch these partisan commitments in the name of the general good, but subjecting them to the membership’s control makes that less likely. Perhaps this was tolerable back when party membership was widespread, but it is no more: “somewhere between 1 and 2 per cent of Canadians are members of political parties,” which is as well, because this means that “[p]eople would rather vote for influence than buy it with a membership card.” Mr. Saunders concludes that “[m]embers no longer matter, and we need to update the system to reduce their influence.” He recommends “[e]liminating the influence of riding committees over MP selection … empowering MPs to select the prime minister [and] making the caucus, not the convention, the policy seat,” as well as, most of all, having leaders “go against their own parties.”

This agenda, of course, is more, not less, elitist than the status quo, or at least it aspires to be so. Yet it seems rather divorced from reality. I wonder whether the members of Canadian political parties would recognize themselves in the picture that Mr. Saunders paints. For most members, the “sinister” influence they wield on Canadian politics is limited to voting for a leadership candidate once every five or ten years. The policy resolutions they occasionally adopt are routinely ignored by party leadership. It takes no courage, contrary to what Mr. Saunders asserts, to do that ― only habit. Whether or not it is a good thing, there is no problem in Canada with party leaders kowtowing to their members ― and this is the truer the closer a party is to power. Do party members “buy influence with a membership card”? Well, maybe, but they get about what they pay for ― a membership costs next to nothing, something like 5 or 10$ a year, and it yields next to nothing too.

If Mr. Saunders’ recommendations were adopted, the members of political parties would have no substantive role at all ― they would select neither their local candidates nor their leaders nor their parties’ policies. It is not clear, indeed, why anyone would become a member in such a system. Parties would be reduced to MPs and their surrounding political operatives, reinforcing the disconnect between the political class and the electorate it is supposed to represent. Mr. Saunders presumably thinks this would be no great loss.

I am not so sure. Of course, party members are not fully representative of the broader electorate. But they are more so than the MPs, staffers, and PR people gravitating around the MPs in Ottawa. A leadership election is the one moment when a would-be Prime Minister leader is forced to engage in retail politics and talk, at a fairly close distance, to lots of different people without many filters. He or she has to meet ordinary party members and ask them for their votes, in person, face-to-face even ― rather from a television screen. Mr. Saunders is right that leadership sometimes demands going against the wishes of one’s party, just it sometimes demands going against the wishes or preferences of the electorate, but leadership does not mean simply ignoring these wishes as if they did not exist. A leader must be able to engage with those who disagree with him or her; maybe to persuade some of them, and at least to let the others know that they have been heard. Arguably, the lack of these qualities is a problem for a number of political leaders in Canada now. Mr. Saunders’ proposals would make this problem worse, not better.

“Damn your principles,” demanded Benjamin Disraeli, “stick to your party.” Mr. Saunders would have politicians do the other way, sacrificing party to principle. This certainly sounds more high-minded, but in reality, we probably need both parties and principles. A single-minded devotion to anything runs the danger of fanaticism ― and fanatics of principle are no better than the partisan kind.

The Ways of Change

I wrote last week about Bill C-559, the “Reform Act,” which if enacted would transfer some power from party leaders to MPs and caucuses in the House of Commons. Yesterday, I addressed the question whether the changes it would operate would be good for our democracy, and concluded that this is very doubtful. In this post, I want to consider the separate question whether, if I am wrong and the changes proposed by the supporters of Bill C-559 ought to be implemented, this implementation should be done through legislation. The way in which Bill C-559 would operate is to make the incorporation of the procedures it mandates into the internal rules (such constitutions and by-laws) of political parties a pre-condition of their registration with Elections Canada, which, in turn is required for a party to obtain important benefits (including the ability of its candidates to use its name on election ballots). In addition, Bill C-559 explicitly says that it provisions would “prevail[] to the extent of the conflict or inconsistency” over those of the parties’ constitutions or by-laws (clauses 11 and 12).

This is quite unusual. As an interesting, eminently readable, and very timely paper by Gaeme D. Orr makes clear, political parties are subject to little (specific) regulation, except insofar as their financing is concerned, in the legal systems of the countries that have inherited the Westminster parliamentary model, including Canada. Parties have always been regarded as free to make their own internal rules. They can have the internal structure they wanted, their preferred way of choosing a leader, etc. The supporters of Bill C-559 like to say that it is not revolutionary, because the rules it would put in place exist in other Commonwealth jurisdictions. That may be so, but C-559 is revolutionary all the same, not because of its substance, but because it would be an unprecedented intrusion in the choices of previously autonomous organizations.

What warrants this intrusion? It is not the inability of political parties to implement the policies of C-559 on their own. Parties can now, if they so wish, give their caucus the right to boot out their leader. They can, if they so wish, give the caucus a say on the expulsion of caucus members. They could even implement rules practices that would deny the leader the ability to refuse to sign a candidate’s nomination papers, making the legal requirement that the leader do so a formality akin to the royal assent to legislation.

The supporters of Bill C-559 might believe that, although having the legal and practical ability to act, political parties are nevertheless prevented from doing so by a collective action problem. Perhaps a party which implemented the changes proposed by the bill unilaterally, without the others doing so, would suffer as a result, so that none has an incentive to act on its own even though they all would be better off if they acted together. I do not believe I have actually seen any such argument, though of course I might have missed something. But I am not sure how much force it would have. Perhaps there is a collective action problem of this sort with respect to candidate selection, insofar as giving a leader veto power over nominations allows a party to present a more unified team, and thus look better in the eyes of the media, which is all too eager to treat internal disagreement as a sign of a leader’s weakness and a party’s disorganization. A party which unilaterally curtails its leader’s power to cut questionable candidates loose might become vulnerable to criticism ― but it could also posture as more open and democratic than its rivals, so I am not sure where the cost/benefit calculus ends up. And certainly there is no collective action problem preventing parties from experimenting with rules on choosing and removing leaders ― there has, in fact, been considerable innovation in this area recently.

The real problem is not that political parties are somehow unable to act. It is that they do not want to. They choose to empower their leaders in ways which the supporters of Bill C-559 do not like. The question, then, is whether some over-riding consideration justifies over-riding their free choices. The answer, of course, will depend on just great the benefits one expects the implementation of C-559 to yield would be, which are the subject of much discussion. But it must also depend on the costs of this interference with the parties’ choices ― and I have the impression that these costs are not discussed at all. Yet there is always a cost in interfering with people’s choices; there is also, more specifically, a cost to telling party members ― people whose participation in the political system should, one might think, be saluted and respected ― that the choices which they make do not deserve to be respected. Bill C-559 does this generally, by over-riding party rules, and more particularly too, by making it possible for MPs to override the party members’ (or supporters’) choice of leader.

To me these costs seem pretty significant. Given that even many of those who support Bill C-559 seem uncertain about its benefits, I do not think that legislation interfering with the internal rules of political parties is the best way to change Canadian politics. Bill C-559 has the merit of having forced upon us a conversation that is well-worth having. But parties should be free to make their own responses to this conversation. And we can, then, judge them by these responses.