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.

 

Politics in, and of, Law Schools

That legal education is tied up with politics is no excuse for indoctrination or ideological homogeneity

In an op-ed in The Globe and Mail Lisa Kerr and Lisa Kelly criticize “[c]alls for a return to … a legal education free of politics”, which they say amounts to “[s]tripping law of context”. Legal education, they insist, is necessarily, and properly, political. It is not just about legal doctrine, but also about “the complex relationship between legal principles and societal values”, as well as “history, culture, economics, and political economy”. I do not disagree with most of what they say on this point, so far as it goes. But I have a strong impression that Professors Kerr and Kelly, as well as their enthusiastic supporters in the Canadian legal academic corner of the twitterverse, elide crucial distinctions, and fail to address important questions that arise is their claim about the relationship between law, and especially legal education, and politics is accepted.

One claim in Professors Kerr and Kelly’s op-ed which I would not endorse without qualificaion is “that law and politics are not distinct domains”. To be sure, as I argued in one of my early posts here, “legal theory … is different from scientific theory, because it is in some measure argument [that] involves values, and hence ideology”. (Some of the things I said in that post now strike me as overstated, but I stand by this claim, and the post’s general tenor.) And it’s not just theory. As I wrote elsewhere, while Canadian courts is sometimes contrasted with American law as being less ideological, this is a mistake; Canadian judges are ideological, though they tend to share an ideology, and observes of Canadian courts believe, or pretend, that it is no ideology at all. Yet for all that, I think it would be a mistake to conclude that law and politics are wholly indistinct. Politics (in the sense of ideology, not necessarily partisanship) influences law, but it is not all there is to law. Professors Kerr and Kelly disparage “formalism”, but the law’s forms and procedures are important and valuable. “Due process of law” is not the same thing as political process, or the court of public opinion. I am not sure whether Professors Kerr and Kelly mean to suggest otherwise, but it would have been better had their op-ed not been open to such an interpretation.

I am also quite skeptical of the claim that Canadian law professors teach students not only law but also “history, culture, economics, and political economy”. With respect to my colleagues, how many of them master these subjects at even an undergraduate level?How many regularly read even, say, blogs written by historians or economists ― let alone scholarship? As readers who have followed my occasional musings on the “empirical turn” in constitutional law will know, it’s not that I am against the law being informed by these ― and many other disciplines; quite the contrary. But I am also skeptical about the capacity of the legal profession ― including the academy, as well as the bar and the bench ― to carry out the immense work that the “empirical turn” requires. Canadian law schools are several hundred Richard Posners short of offering the sort of interdisciplinary teaching that Professors Kerr and Kelly claim for them.

Be that as it may, as I said above, what worries me more is what Professors Kerr and Kelly do not say. First, as Michael Plaxton points out, there is a difference ― which Professors Kerr and Kelly elide ― between “drawing attention to political values” that permeate the law, and “adopting any particular political view, or imposing one on students”. One can expose the law’s politics and explain its context without necessarily arguing that the law is good or bad as a result. Now, I think that this distinction can only be taken so far. Given the limits on the time available to teach any subject, the choice of readings one assigns, or issues one emphasizes, is in part influenced by what one finds interesting and important, and one’s politics help shape those perceptions. Still, that’s not an excuse for giving up on even-handedness, or on broadening the issues one raises beyond one’s own interests and preoccupations.

Another important distinction is that between the positions of individual educators and educational institutions vis-à-vis politics. Professors Kerr and Kelly elide this distinction too, speaking of the way “we … teach law” and “the role of a law school” as if they were the same. They are not. Individual professors will, unavoidably, bring their particular political orientations to their teaching. They have a responsibility to strive, nevertheless, to fairly present views and concerns with which they disagree, but there are limits to how well individuals can discharge this responsibility, both due to the imperfections of the human nature and to the practical constraints I have already mentioned. Professors’ duty to create an environment where students who disagree with them feel free to do so is more absolute, but again, I am afraid that there are limits to what one can do. Ultimately, the professor gets the last word in a classroom discussion ― though the last word should often be a reminder that disagreement is welcome.

Law schools, as institutions, are subject to different constraints. Unlike individual professors, they are not entitled to their own political agendas. Individuals can only go so far in resisting the influence of their pre-existing commitments on their teaching. But law schools should have no pre-existing political commitments to resist. On the contrary, given the inevitability of a certain politicization of the teaching of individual professors, law schools should try to counteract this politicization by ensuring a certain degree of ideological heterogeneity among their staff, so that students are exposed to a variety of perspectives during the course of their studies. As Emmett Macfarlane points out, concerns about the role of politics in legal education have to do with “homogenizing attitudes” at (some) law schools that present them as committed to specific political orientations, so that other views would be unwelcome or at best devalued there.

One response to this that I have seen is to say that professors do not really change their students views. I think this is beside the point. For one thing, I don’t think that it’s necessarily improper for professors to change their students’ minds. If the change results from the students’ free assessment of arguments on both sides of an issue fairly presented by the professor, it’s a good thing, not a bad one. But conversely, even if  professors who set out to indoctrinate their students, or take a one-sided or authoritarian approach out of sheer carelessness, do not succeed at changing the students’ opinions, they are still causing harm. As Ilya Somin observed in a recent discussion of Keith Whittington’s new book on freedom of expression in universities, and as Matt Harringon pointed out in response to Professors Kerr and Kelly, students respond to such professors by hiding their true opinions, which harms the quality of classroom discussion. As Jonathan Haidt often reminds us, this leaves the holders of the majority opinions quite unprepared to argue against contrary views when they are confronted with them ― as will inevitably happen in the legal world, in particular.

 

So while I take Professors Kerr and Kelly’s point that the teaching of law is inevitably political, it is only true in certain ways and to some extent. Good legal educators do not shy away from discussing values, but they try to present more than their own value-laden perspective on the law, and do not seek to impose their own on their students. And, knowing that these attempts are bound to succeed only imperfectly, good law schools try to ensure that students are given opportunities to learn from professors whose political commitments are not homogeneous. I hasten to add that I strongly suspect that any legislative remedies for real or alleged failures of law schools and their faculties to live up to these commitments would be worse than the disease. But that just means that legal educators have to work very hard at it ― no one else can help them.

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.

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.

Stupid but Constitutional

More on why I think legislation forcing floor-crossing legislators to run in by-elections is not unconstitutional

In my last post, I asked whether there is a right to rat—whether member of Canadian legislatures have a right under the Canadian Charter of Rights and Freedoms to cross the floor and join the caucus of a party different from the one for which they were elected, without going through a by-election first. I argued that there is no such right, although the bans on floor-crossing, such as the one that exists, and is now being challenged before the courts, in Manitoba are a bad idea. Somewhat to my surprise, that post provoked a good deal of discussion on Twitter (relative to my other posts, anyway, which to be fair is a pretty low standard). Because of the time difference, the fun mostly happened while I was asleep, and I missed out, so I want to follow up here.

One question that was raised, by Emmett Macfarlane, is whether I sufficiently addressed the floor-crossers’ “freedom”, under section 2(d) of the Charter, to associate with the caucus of their choice (and indeed a party caucus a right to associate with them)”. I’m not sure how much more I can say on this point; there seems to be a fundamental disagreement between prof. Macfarlane and me here. As I see it, no one is prevented from associating with a caucus, nor is a caucus prevented from associating with anyone. Only a preliminary condition is imposed: that before undertaking a (formal) association, the floor-crosser be elected under that caucus’s party label. The floor-crosser is put in the same position as any other citizen—one cannot become a member of a caucus, even if both sides are agreed, unless one first gets elected. (Consider the case of an unsuccessful candidate: he or she would very much like to be part of the caucus, and the caucus would love to have him or her, but those dastardly voters get in the way. ) Similarly, even if  engaging in collective bargaining is a constitutional right, as the Supreme Court now claims it is, I don’t think that even the Supreme Court would say that the requirement that the union have the support of a majority of workers before it is able to impose itself on their employer is a violation of the freedom of association, although it is doubtless a pre-condition that gets int the way of people engaging in associational activities.

Second, prof. Macfarlane remains of the view that the floor-crossers’ constituents rights to effective representation under that courts have read into section 3 of the Charter are infringed when their representatives are “restricted from representing [them] by responding to political circumstances that leads them to believe joining another caucus is the best way to do that”. I do not think that the right to effective representation has ever been taken to go nearly as far as prof. Macfarlane wants to take it here. In a passage from Haig v. Canada, [1993] 2 SCR 995 later endorsed by the majority in Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 SCR 912, Justice L’Heureux-Dubé spoke of a

right to play a meaningful role in the selection of elected representatives who, in turn, will be responsible for making decisions embodied in legislation for which they will be accountable to their electorate. (1031; underlining in Figueroa at [25])

In other words, the right protected by section 3, both as a matter of constitutional text and even in the Supreme Court’s cases that have arguably expanded it to some extent, concerns the process of elections. As the majority put in Figueroa, it is “the right of each citizen to a certain level of participation in the electoral process”. [26] Section 3 does not deal with what happens within the legislature once the elections have taken place.

If the courts were to expand the scope of section 3 in this way, they would become entangled in all manner of questions that have always been thought of as a matter of politics—for example, whether the whip or a party line gets in the way of “effective representation”. (And I don’t think that parliamentary privilege, of which more shortly, will save them. Privilege attaches to the functioning of legislative bodies, not political parties or even caucuses.) Jan Jakob Bornheim pointed out to me that that’s precisely what happens in Germany, where the Basic Law‘s provision making members of the Bundestag “responsible only to their conscience” (article 38) has been interpreted to prohibit the imposition of party lines. For my part, I don’t think it’s a good idea to involve the courts in these issues, and I doubt that Canadian courts are all that keen to take on this responsibility, in the absence of a reasonably clear textual requirement that they do so.

In addition to all of that, I think that we should take seriously the role that party affiliation plays in people’s voting behaviour, and acknowledge that many, and probably most, voters will feel that their representation is undermined, not enhanced, by the ability of a representative whom they chose (in large part, if not exclusively) because he or she was the candidate of one party to switch, mid-term, to a different party. Prof. Macfarlane suggests that this amounts to “using a reality of voting behaviour to transform the core purpose and function of” a legislator “which isn’t to represent a particularly party to but to represent a constituency”. For my part, I wouldn’t want a constitutional doctrine that is oblivious to “realities of voting behaviour” in the name of some high-minded pursuit of politics as it ought to be rather than as it is. In any case, I don’t think the distinction between the roles of representative of a party and representative of a constituency are as sharply distinct as prof. Macfarlane suggests. A legislator elected under a partisan banner can, and indeed is expected to, represent a constituency as a partisan (not in every way, of course, but in much of what he or she does),  and really don’t see how the Charter gets in the way of that, or why it should.

The final question I will address here is whether any of this matters, or whether the whole thing is a matter Parliamentary privilege anyway,  and the courts will not interfere with the way in which privilege is exercised. On this point, I think there is some confusion going on. The internal functioning of legislative bodies is a matter of privilege, as are the rules they make, internally and for themselves, such as their standing orders. That, as Benjamin Oliphant noted, the standing orders of Canadian legislatures deny independent members some important rights that they grant to those belonging to political parties (and thus arguably undermine their constituents’ right to effective representation) is a matter of privilege and not subject to Charter review. But the issue we are concerned with does not arise out of standing orders or an exercise by the Speaker of the Legislative Assembly of that body’s self-governing powers. It concerns the constitutionality of a statute enacted pursuant to one of the province’s legislative powers (namely that in section 45 of the Constitution Act, 1982, to legislate in relation to the constitution of the province), to be part of the law of the land, and not merely the law and custom of Parliament. The exercise of this legislative power is obviously subject to the Charter; as section 52(1) of the  Constitution Act, 1982 provides, “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”.

Now, as the Court of Appeal for Ontario explained in Ontario (Speaker of the Legislative Assembly) v Ontario (Human Rights Commission), (2001) 54 OR (3d) 595 at [35], although the constitutionality of legislation in relation to the functioning of a legislature or one of its components is subject to the Charter, to the extent that this legislation calls for self-application by the legislature or its Speaker, the courts will not interfere with decisions made pursuant to that legislation. (This principle, known as the right of “exclusive cognizance”, is an aspect of privilege.) So, for instance, in the case of Manitoba’s ban on floor-crossing, it will be for the Speaker (I assume) to enforce the rule that “a member who … [has] cease[d] to belong to the caucus of that party during the term for which he or she was elected … must sit … as an independent and is to be treated as such”, and the courts will not call into question the Speaker’s decisions about what that entails. But the question of the constitutionality of that provision is a prior and separate one, and the right of exclusive cognizance does not apply to that question.

In short, although they are not immune from constitutional scrutiny because of Parliamentary privilege, bans on floor-crossing are not unconstitutional. They infringe neither the freedom of association nor the right to vote (or to effective representation) protected by the Charter. Once more, to say that such bans are constitutional is not to say that these bans are a good policy. I think they are ineffective (because they cannot prevent a would-be floor-crosser from voting with his new friends), and useless, because voters can always get rid of a representative they don’t like at the next election. One might even say that these bans are stupid—stupid but constitutional, as the late Justice Scalia used to say.

A Right to Rat?

A Manitoba MLA claims there is a Charter right to cross the floor. He is wrong.

John Markusoff writes in Maclean’s about a Charter challenge launched by Steven Fletcher, now an independent member of Manitoba’s Legislative Assembly, against section 52.3.1 of the province’s Legislative Assembly Act, which prevents members “elected with the endorsement of a political party” from joining the caucus of a different party during  their term. They must, rather, sit as independents—or resign and get themselves re-elected under their new partisan colours. Mr Fletcher will be “arguing that the ban infringes on his freedoms of expression and association, and … on the voting rights of his constituents”, the latter argument being based on an independent member’s lesser privileges (in relation to things like the ability to ask questions) compared to those of the members of a caucus. Mr. Fletcher has been expelled from the Conservative caucus, and Mr. Markusoff describes him as “an MLA marooned, and much disempowered politically for it”—although Mr. Fletcher apparently insists he has no plans to join another party.

Mr. Markusoff is supportive of Mr. Fletcher’s plight, pointing to the fact that Sir “Winston Churchill … cross[ed] the floor twice during his storied career”. (Churchill’s own take on this was that “anyone can rat, but it takes a certain amount of ingenuity to re-rat”.) Mr. Markusoff also quotes two political scientists who think Mr. Fletcher has a pretty good argument. Emmett Macfarlane is one of them, agreeing that Mr. Fletcher’s “constituents are poorly served”. Meanwhile Mr. Fletcher’s lawyer argues that the ban on floor-crossing—or ratting, or, as it’s called in New Zealand, waka-jumping (a waka is a Māori canoe)—serves to give party leaders more power at the expense of ordinary members. With that, I agree, and I too think that the ban on floor-crossing is a bad idea, as I explained here when commenting on a (never-enacted) proposal to impose a similar ban in Québec. Yet as I also noted in that post, in my view, a ban is not unconstitutional.

Indeed, it seems to me that the ban is not a meaningful restriction on anyone’s rights. For one thing, no one has a right to seat in the Legislative Assembly, or to be part of a caucus, without a mandate from the voters. And for another, the ban on floor-crossing does not prevent members from joining a party other than that for which they were elected, still less from voting as they please or voicing whatever opinions the Legislative Assembly’s standing orders allow them to voice. What it does is require them to do is stand for election to have voters confirm their party switch. If the voters still want to have the member as their representative under his or her new colours, then he or she will go on free as a bird, or at any rate as free as his or her new caucus permits. Otherwise, it’s the voters, not the ban on floor-crossing, that will have silenced the now-former member. And if the point is that the voters will likely value being represented by someone of the same party they previously voted for—well, I don’t think the Charter denies them that preference, least of all in the name of “effective representation”.

A couple of other points are worth considering here. First, if the argument is that it is somehow contrary to the Charter for party leaders to be able to exert pressure, even considerable pressure, on the members of their caucuses, this goes very far indeed. Does the leader’s ability to distribute, and to withdraw front-bench (and, in government, cabinet) roles raise constitutional questions? Or his or her ability to boot a member from caucus quite apart from any ban on floor-crossing, on the premise that there is no guarantee that the expelled member will in fact find a new political home, and may remain “marooned” instead? I doubt that a court would want to go that way, and this is as it should be. Voters are quite capable of delivering their verdict on any such shenanigans—if they care which, for better or for worse, they probably mostly do not.

Second, while floor-crossing might be described as a feature, or even “a time-honoured, Churchillian convention”, as Mr. Markusoff does in fact describe it, in a first-past-the-post universe, where members of legislatures are in principle elected in their personal capacity, it is very much a bug in a system of proportional representation. Because the legitimacy of the distribution of seats in an assembly elected using such a system rests on its relationship to the party vote (whether or not some of assembly’s members are in fact elected to represented particular constituencies), changes in the partisan affiliation of individual MPs undermine it to a greater extent than they do a system that rests on the personal relationships between MPs and their constituents. Of course, Manitoba does not have a proportional electoral system, and it should be possible for a court intent on striking down the ban on floor-crossing to do so in a manner that at least leaves the question open should it (or another Canadian jurisdiction) undertake electoral reform, but one should at least be wary of invoking over-broad principles in this matter.

To repeat, I do not think that rules, such as Manitoba’s, that put a break on the ability of members of legislatures to cross the floor are good idea. Whether the practice is Churchillian or Emersonian in any given case, the voters will be able to pass their judgment at the next election; I do not think that there is a pressing need to rush them to it. And to the extent that it can reduce the power of party leaders, there might be something to be said for floor-crossing—though there is also something to be said against a means for individual legislators of acquiring disproportionate power in a finely balanced assembly. Be that as it may, these are matters of political morality and institutional design. There is no right to rat, and the courts should not create one.

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.