The Law of Permanent Campaigning

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How Power Corrupts V

What science has to say about the corrupting effects of power

A recent article by Jerry Useem in the Atlantic, “Power Causes Brain Damage”, provides me an opportunity to return to my series of posts on the corrupting effects of power. My previous musings ― on character as a partial antidote to these effects and the dangers of addiction, on the connections between power, fear, and violence, and those between power and lies, and the perverse incentives that power imposes on those who seek and wield it ― mainly drew on literature, with a bit of political analysis and economics thrown in for good measure. Mr. Useem’s article describes a couple of very different sources for this inquiry: neuroscience and experimental psychology.

Mr. Useem reviews a number of scientific studies that have found some of the same effects that writers and philosophers who have concerned themselves with power have described. One psychologist found that experimental

[s]ubjects under the influence of power … acted as if they had suffered a traumatic brain injury—becoming more impulsive, less risk-aware, and, crucially, less adept at seeing things from other people’s point of view.

The inability of people in power to relate to others is observable both when looking at their brain processes directly, as a neuroscientist’s work suggests, and at their behaviour, whether in experiments or in real life situations that seem to echo them.

It seems likely that the inability of the powerful to empathize with others and their impulsiveness both help explain why power is inevitably violent and deceitful. It is easier to manipulate or to crush people if you do not ask yourself how they might feel about that ― and the individuals or institutions that wield power don’t. Besides, as another psychologist to whose work Mr. Useem refers points out, “power lessens the need for a nuanced read of people, since it gives us command of resources we once had to cajole from others”. In other words, why would you bother being nice to people when you can coerce them? This is a point about power’s perverse incentives, albeit a different one from that which I discussed in a post linked to above.

Now, the psychologists’ experiments’ subjects were not actual politicians or corporate executives ― “[t]hey were”, Mr. Useem explains, “college students who had been ‘primed’ to feel potent by recounting an experience in which they had been in charge.” Mr. Useem speculates that the effects the experiments shows

would presumably wear off when the feeling did—their brains weren’t structurally damaged after an afternoon in the lab. But if the effect had been long-lasting … they may have what in medicine is known as “functional” changes to the brain.

In fact, some experimental findings suggest that this is likely to be so. This is unsurprising, since both the guess that “an afternoon in the lab” is unlikely to have a long-lasting effect, and the possibility that long-term exposure to power does not wear off so easily, are quite consistent with the role of addiction in power’s corrupting effects.

Mr. Useem recounts studies that suggest that people in a position of power can try to resist addiction to it by reminding themselves, or having someone remind them, either of the limits on their power or of its corrupting influence on them and those around them. Although Mr. Useem does not mention it, the old-fashioned memento mori is the best-known implementation of this idea. Gandalf’s repeated insistence that Frodo not use the Ring, and his pointed injunction, when Frodo wears it on Amon Hen and is in danger of being discovered by Sauron’s Eye ― “Fool, take it off! Take off the Ring!” ― is an obvious literary example. But from what we know about power ― from the Lord of the Rings and other sources ― these are no more than temporary fixes. Sooner or later, addiction will take hold.

In exploring the damaging effects of power, Mr. Useem seems mostly interested in business leaders, and in ways in which they can remain effective despite power’s corrosive influence on them. My focus in this series of posts is somewhat different: it is on political power, and what can be done to control it. That politicians might become less effective over time does not particularly bother me. If anything, the possibility that “[o]nce we have power, we lose some of the capacities we needed to gain it in the first place” seems reassuring ― provided that the ineffective politicians can be dispensed with.

I once again conclude, then, with a reminder of the importance of constitutional mechanisms to limit the amount of harm a brain-damaged politician can inflict on us. Separation of powers, federalism, and protections for individual rights limit the amount of power a politician can wield to begin with ― and perhaps even limit the amount of damage his or her brain will come  to sustain. The Rule of Law provides further restraints on the manner in which power, even when it exists, can be exercised. And democracy provides the essential mechanism by which the politician who has overstayed his welcome ― for example because his or her brain has turned to power-corrupted mush ― can be thrown out of office.

To be sure, no constitutional device is fool- or Caesar-proof. For the ultimate, democratic safeguard against the corrupting effects of power to work, voters must be willing to invoke it ― and we should probably harbour no great illusions on that score. But constitutional and democratic safeguards are all we have ― and they are, after all, better than nothing.

The Good, the Bad, and the Ugly

A bill to improve Parliament’s constitutional scrutiny of legislation is a step forward ― but not good enough

Earlier this week, the federal government introduced Bill C-51, which will make some noteworthy changes to the Criminal Code ― mostly cleaning up offenses now deemed obsolete, but also codifying some principles relative to sexual that have been developed by the courts, and some other changes too. There has been quite a bit of discussion about these changes (see, for instance, this tweetstorm by Peter Sankoff), and I am not really qualified to speak to their substance, beyond saying that, all other things being equal, cleaning up the statute and making sure it reflects the law as applied by the courts are pretty clearly good things form a Rule of Law standpoint.

I do, however, want to say something about another, less commented, innovation in the bill: its clause 73, which would oblige the Minister of Justice to provide, alongside to any government bill introduced in Parliament, “a statement that sets out potential effects of the Bill on the rights and freedoms that are guaranteed by the Canadian Charter of Rights and Freedoms. This is a step forward, although not a sufficiently bold one, but also a troubling symptom of the constitutional favouritism that afflicts the government and seems to show no signs of letting up.

* * *

The idea that the Minister of Justice ought to provide advice to Parliament about the compliance of bills with rights protections actually pre-dates the Charter. It was first introduced in subs 3(1) of the Canadian Bill of Rights, which required the Minister to

examine … every Bill introduced in or presented to the House of Commons by a Minister of the Crown, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of this Part and he shall report any such inconsistency to the House of Commons at the first convenient opportunity.

Identical language, but referring to the Charter, now appears in subs 4.1(1) of the Department of Justice Act. Yet these provisions, which might have involved Parliament, or at least the House of Commons, in constitutional discussions, have largely proven ineffective. There was, as we can tell from judicial decisions declaring federal legislation  invalid because contrary to the Charter (or, admittedly rarely, inoperative because contrary to the Bill of Rights), no lack of opportunities for inconsistency reports. Yet in well over half a century, only one such report has ever been made.

The reason for this is that, as the Federal Court explained in Schmidt v. Canada (Attorney General), 2016 FC 269 successive Ministers of Justice interpreted the reporting requirements as only obliging them to notify the House of Commons if they, or rather the Department of Justice (DOJ) lawyers, couldn’t come up with “[a]n argument” that the bill is constitutional “that is credible, bona fide, and capable of being successfully argued before the courts”. [5] Because DOJ lawyers are clever and creative, and perhaps also a little optimistic about their ability to mount successful arguments, this interpretation allows the Minister to avoid making a report to the House of Commons even if the constitutionality of a bill is very much in doubt.

Contrast this situation with New Zealand. Section 7 of the New Zealand Bill of Rights Act 1990 is a direct descendant of the Canadian inconsistency reporting requirements. It provides that the Attorney-General must “bring to the attention of the House of Representatives any provision in [a] Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights”. Attorneys-General have interpreted this as a duty to form their own opinion about whether proposed legislation is consistent with the Bill of Rights Act, and not merely about whether they might make credible arguments for the proposition that it is. As a result they have made almost 40 “section 7 reports” on government bills, and over 70 in total, including on non-government bills, which are not covered under current Canadian legislation and still would not be under C-51, in just 25 years. (One reason why similarly worded provisions have been interpreted so differently in Canada and in New Zealand is that New Zealand, like the United Kingdom, separates the roles of Minister of Justice and Attorney-General, and the latter, although elected as an MP and a member of the Cabinet, by convention acts in a relatively non-partisan fashion. I would love to see Canada adopt this practice, but won’t hold my breath.) And New Zealand’s Attorneys-General have gone further than the Bill of Rights Act required them to. The have also made public the advice regarding the consistency with the Act of all bills since 2003 ― not only those that they found to be inconsistent.

If enacted, Bill C-51 wuld take Canada close to New Zealand in this regard ― and, to some extent, even further. It will go further both in that it will create a statutory requirement, as opposed to a mere policy (albeit on that has been consistently followed by governments of various partisan persuasions), and in that it will formally inform not only the public but Parliament itself. On the other hand, the requirement will not go as far as the New Zealand policy, because it will only apply to legislation proposed by the government ― and not by individual MPs or Senators.

* * *

Despite its limitations, of which more very shortly, this is a good change. Getting Parliament to engage more with constitutional issues that arise when it legislates would be a wonderful thing. To be sur, we should not be too optimistic about what ministerial explanations of Charter concerns will accomplish. In New Zealand, Parliament routinely ignores the Attorney-General’s warnings about the inconsistency of bills with the Bill of Rights Act. It may well be that if such warnings, or a fortiori statements to the effect that a bill gives rise to constitutional concerns but the government believes that it is nevertheless consistent with the Charter become more common in Canada, legislators will similarly ignore them. But even occasional engagement with such concerns is likely to be an improvement on the current situation, in which they are systematically ignored whether or not Parliament is the only place where they could be addressed.

One particular issue to think about here is the role of the Senate. It is at least arguable that it would be more justified in opposing the House of Commons (at least by insisting on amendments, but perhaps even by outright defeating legislation) because of constitutional concerns than for any other reason. Having such concerns outlined by the Justice Minister would make it easier for the Senate to do this, and might thus contribute to make it a more significant legislative actor. That said, the Senate did give way to the House of Commons on the assisted suicide legislation, despite constitutional concerns, so any such changes are, for now, a matter of speculation.

As the above comparison between Canada and New Zealand shows, a lot will depend on just how the Justice Ministers approach their new statutory duties. This is where we come to the less attractive features of clause 73. Its wording is very open-ended ― to repeat, it requires reports bills’ “potential effects … on [Charter] rights and freedoms” (emphasis mine). In a way, this is useful, in that it allows the Minister to offer a nuanced assessment, and perhaps candidly say that there is no clear relevant guidance from the courts. But if a Minister wants to fudge, or simply to say, consistently with currently practice, that plausible ― but not necessarily compelling ― arguments can be made that a bill’s effects can be justified under section 1 of the Charter, clause 73 would allow that too. As Lisa Silver has noted, ministerial “statements may be self[-]serving”. On the whole, then, I would count the clause’s vagueness as a bad thing.

The other bad thing about it is that, as I noted earlier, it only applies to legislation introduced by the government. Now, it is true that most significant legislation is, in Canada anyway. But there have apparently been concerns that the last Conservative government used private members’ bills to advance policies that had its private support but with which it was unwilling to be too publicly associated. Whether or not that was true, something like that might happen in the future. And of course any bills introduced in the Senate would be exempt from scrutiny, at least until the rather hypothetical for now day when there are cabinet ministers from the Senate. In short, the exclusion of legislation not introduced by the government from the current scope of clause 73 is potentially dangerous ― and I have a hard time seeing why it should be there.

It gets worse ― indeed, in my view, it gets outright ugly. Clause 73 confirms what I have denounced the government’s tendency to treat the Charter as a favoured part of the constitution, and ignore the others, notably the Constitution Act, 1867. The clause will, if enacted and approached in good faith by the Justice Ministers (the latter a big if, as I noted above), force the government to alert Parliament to the repercussions of proposed legislation on a part of the Constitution. But why only part? Why that part? Why shouldn’t Parliament be alerted to issues surrounding the division of powers, not to mention aboriginal rights and, arguably above all, the constitution’s amending procedures? And what about the (quasi-constitutional) Bill of Rights, while we’re at it? (Though it is often forgotten, the Bill of Rights does protect some rights that have been left out of the Charter, perhaps most significantly the right to a fair trial in civil cases, and so remains relevant despite the Charter’s enactment.) Of course, the current provisions requiring inconsistency reports only concern the Charter and the Bill of Rights, but since the point of Clause 73 is to expand them, why is this expansion so selective? As I have previously explained, the vision of the Constitution that it reflects is a defective and a pernicious one. To that extent, Clause 73 deserves condemnation ― and cries out for amendment.

* * *

Let me conclude, then, with a quick sketch of what an amended version of Clause 73 that addresses the criticisms outlined above might look like:

(1) The Minister shall, for every Bill introduced in or presented to either House of Parliament cause to be tabled, in the House in which the Bill originates, a statement that sets out potential effects of the Bill on

(a) the rights and freedoms that are guaranteed by the Canadian Charter of Rights and Freedoms or recognized, declared or otherwise protected by the Canadian Bill of Rights;

(b) the aboriginal and treaty rights of the aboriginal peoples of Canada recognized and affirmed by the Constitution Act, 1982; and

(c) the scope of and limitations on Parliament’s legislative powers under the Constitution of Canada.

(2) The statement shall, in addition to any other matter, note whether, in the Minister’s opinion, it is more likely than not that the Bill is inconsistent with the Constitution of Canada.

(3) The statement shall be tabled

(a) in the case of a bill introduced in or presented by a minister or other representative of the Crown, on the introduction of that Bill; or

(b) in any other case, as soon as practicable after the introduction of the Bill.

(4) The purpose of the statement is to inform members of the Senate and the House of Commons as well as the public of those potential effects and the constitutionality of proposed legislation.

This is, in all likelihood, an imperfect effort. In particular, it might be unnecessary to require Ministerial statements on private members’ bills that never make it past first reading. I’d be grateful for any input on this, and on the corrections that might be necessary to my proposal, from those more knowledgeable than I about Parliamentary procedure and legislative drafting. But I do think that my substantive concerns are serious. I would be very nice indeed if Parliament were made to address at least some of them.

Inappropriate Remarks

Justice Abella should be criticized, not praised, for her comments on Donald Trump

In a widely noted (for example in this report by Colin Freeze for the Globe and Mail) commencement address given in the United States, Justice Abella has castigated “narcissistic populism” and, more broadly, what she perceives as the abandonment of a global commitment to human rights, independent institutions, and the Rule of Law. While the academics quoted by Mr. Freeze, and others, are either cheering Justice Abella on or at least think that these comments were acceptable, I disagree. Mrs. Abella would be perfectly free to engage in political commentary, but Justice Abella is not. That she did not recognize this calls her judgment into serious question.

It is quite obvious to anyone who has had the misfortune of following the news in the last year that the “narcissistic populism” quip refers to Donald Trump. Sure, Justice Abella did not utter his name. She did not need to. Populism in general is a broad (and worrying) phenomenon. But the reference to narcissism is a pointed one. Justice Abella was not speaking about Bernie Sanders, or even Marine Le Pen. (Her other remarks presumably did not only concern Mr. Trump ―  though I doubt she was thinking about Mr. Sanders.)

Unlike Justice Ginsburg of the US Supreme Court, who criticized Mr. Trump (by name) last year (at a time when his election to the presidency seemed impossible), Justice Abella wasn’t commenting on the potential head of a branch of government co-ordinate with that of which she is part. To that extent, she wasn’t compromising the separation of powers. Yet that doesn’t mean that her remarks were compatible with her judicial role. The United States are a relatively frequent litigant before the Supreme Court of Canada. Since Justice Abella’s appointment, they have been a party to seven cases decided on the merits, and to almost 20 additional leave applications in which she was involved. (These are mostly, though not quite exclusively, extradition matters.) There is no particular reason to think that there will no more such cases while Justice Abella remains on the Court. And so long as she does, and Mr. Trump remains president of the United States, it seems to me that questions about Justice Abella’s impartiality could be raised.

When I criticized Justice Ginsburg in a blog post for the CBA National Magazine last year, I noted that those whose unbridled admiration for her encouraged her injudicious behaviour had to take some of the blame:

As [Josh] Blackman has pointed out, “[o]ver the past few years, [Justice] Ginsburg has been showered in … sycophantic adoration” by those on the political left who see her as the pre-eminent judicial champion of their values. Prof. Blackman hypothesizes ― correctly, I suspect ― that the adulation got to Justice Ginsburg, to the point that she came to think that “she could do no wrong.” She may also have come to think that the public stood in dire need of her warnings about Mr. Trump, even though, as Paul Horwitz has observed, “her remarks [were] essentially conventional, unexceptional, and banal.” While I do not wish to absolve Justice Ginsburg, I think it is important to also blame those whose flattery has at least contributed to her developing such a high opinion of herself. Four centuries ago, Francis Bacon wrote that “those, that engage courts in quarrels of jurisdiction … are not truly amici curiae, but parasiti curiae, in puffing a court up beyond her bounds, for their own scraps and advantage.” The same goes, I think, for those who encourage judges to overstep their proper role in extrajudicial contexts. It is perhaps unfair to call parasiti people among whom sincere admirers no doubt outnumber self-interested sycophants, but the sincere contribute no less than the two-faced to corrupting the very person they love so much. There is nothing wrong with admiring a judge, or for that matter a politician. But if you well and truly wish him or her well, never tell yourself, and by all that you hold dear, never tell him or her, that the person you admire can do no wrong. Coming to believe that one can do no wrong ensures that one will.

The same lesson applies, I suspect, in the case of Justice Abella. As Mr. Freeze notes, she has become something of a judicial celebrity, and indeed “[e]arlier this year, Justice Abella received a ‘global jurist of the year’ prize.” I am afraid such things are not very good for sitting judges. Justice Abella’s injudicious remarks not only deserve criticism, but also show that she needs it.

Not Withstanding Scrutiny

The Saskatchewan government hasn’t justified its resort to the notwithstanding clause in the Catholic school funding case

Yesterday, I summarized and briefly commented on the decision of the Saskatchewan Court of Queen’s Bench in  in Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212, 2017 SKQB 109, which held that funding Catholic schools for educating non-Catholic students was an unjustifiable infringement of religious liberty and equality guarantees of the Canadian Charter of Rights and Freedoms. In my view this decision is correct. However, plenty of people disagree. Importantly, so does the government of Saskatchewan, which has announced that it will have the provincial legislation resort to the Charter‘s “notwithstanding clause” to nullify the Court’s decision, ostensibly in the name of school choice. Some thoughtful people, like Emmett Macfarlane and Dennis Baker, are supportive of the idea. In my view, however, it is misguided and hypocritical, not to mention illustrative of why the notwithstanding clause should never be used.

The best justification for occasionally resorting to section 33 of the Charter, which allows a legislature to suspend for a renewable period of up to five years the operation of constitutionally protected right is that the legislature disagrees with the courts’ interpretation of that right. After all, if the truth about rights, to borrow a phrase from Jeremy Waldron, exists at all, it’s not obvious that courts have privileged access to it. Questions about rights, about what counts as justifiable limitations of rights, are difficult, and reasonable people can disagree about them. In the face of such disagreement, isn’t it acceptable for the people’s elected representatives to decide that their views ought to prevail over those of unelected judges?

Trouble is, this solemn scene ― representatives of the people deliberating about rights and coming to conclusions that are reasoned and reasonable, if different from the judges’ ― has not taken place in Saskatchewan. The government doesn’t say that it disagrees with Justice Layh’s views about the scope of religious liberty or equality. It does not argue that the constitutionally protected freedom of religion does not encompass a duty of religious neutrality on the part of the state. It does not say that granting funding for students outside of a school’s denomination to Catholic schools and to no others is consistent with neutrality or not discriminatory. It is content to state the objective of “school choice” ― which, by the way, I think is a laudable objective, but which the government’s lawyers didn’t even dare put to the Court ― as if the end justifies the means, and it is permissible to disregard Charter rights as soon as one has a worthwhile reason for doing so. This is not what the defenders of the notwithstanding clause, or indeed the critics of any judicial enforcement of individual rights, say they have in mind. Why, then, do they defend the Saskatchewan government?

The Charter, or any sort of system that protects individual rights against infringement by the state, is based on the idea that the end does not always justify the means. At most, there is a proportionality test, such as the one embodied in section 1 of the Charter. A pressing social objective can justify some limitations of rights, but no more than is necessary, and in particular, not if less restrictive means are available to the government. Of course, whether the means at issue in a given case are the least restrictive available is a difficult question, and legislatures and courts might disagree about that. But there is no sign that Saskatchewan’s government has given any thought to alternative ways of achieving its professed objective of school choice. Why, then, do those boosters of the “notwithstanding clause” that justify its use by the existence of reasonable disagreement defend this government?

In reality, the government’s position is doubly hypocritical. It is hypocritical, first, because although it is posing as the defender of school choice, it is the government that is ultimately responsible for limiting the choices of the parents at the centre of this litigation. The government funds public schools. Its funding was not sufficient to keep a rural school open. The school board decided to close it, and have students be bussed to a different one. Instead of accepting this, some parents took advantage of constitutional rules allowing them to set up a “separate” Catholic school―in a village where there had never been one―, and non-Catholic parents, who had never had any particular interest in Catholicism, decided to also send their children there. If the choices of these parents mattered as much as the government now says they do, the local public school would have stayed open, and this case would not have arisen.

The government is hypocritical, second, because it has perfectly constitutional options to provide even more school choice than it now does ― in which it appears to take no interest. The government could provide all groups, including all religious groups, with funds to educate students from outside their communities. That would be real, meaningful school choice ― not the rather limited choice of a public or a Catholic school, which is only a choice, as Justice Layh points out, for those who do not mind their children receiving a Catholic education. Sure that might be costly system ― but if school choice is important enough to override constitutional rights, surely it’s worth a little tax raise?

Instead of admitting that its position is driven by fiscal, and presumably ultimately electoral, considerations rather than an authentic concern with school choice, the government compounds its hypocrisy with misleading threats. It claims that “[t]he ruling [in Good Spirit School Division] could also risk provincial funding of 26 other faith-based schools including Luther College, Regina Christian School, Saskatoon Christian School and Huda School.” The press release conveniently doesn’t mention the fact that this funding, which was not actually at issue in the Good Spirit School Division case, is less that the funding Catholic schools receive, and that at least the Huda School was on the side of the plaintiffs in the proceedings. Indeed, I wonder how the people involved the Huda School feel about being used in this way to make the government’s case considering the testimony of the school’s president at trial. Here’s how Justice Layh describes it:

he asked why the Huda School cannot receive funding to educate non-Muslim students, just like Catholic schools receive funding to educate non-Catholic students. The Huda School does not discriminate against hiring non-Muslim teachers (unlike Catholic schools). The majority of its teaching staff is non-Muslim. Dr. Aboguddah testified that the Huda School would welcome non-Muslim students to its growing school of 430 students (in 2016) which would provide an opportunity to build bridges with the broader Canadian community to reduce the stereotyping and negative image affecting the Muslim community in light of recent world events. [397]

A Rabbi similarly testified “that certain advantages would accrue to the small Jewish school in Regina if it received complete government funding for non-Jewish students.” [440] Again, if the government were committed to meaningful, non-discriminatory school choice, it would fund schools equally, regardless of who is behind them. The constitution would not stand in its way. It is its choice not to do so ― and it ought to accept the constitutional consequences of this choice.

Like a court looking to uphold a dubious administrative decision on a reasonableness standard, Profs. Macfarlane and Baker, and those who agree with them, offer their own reasons for why Justice Layh’s decision was wrong. I might return to that in a future post. Here, my point is that the government of Saskatchewan does not give any such reasons. Its justification for overriding this decision cannot withstand scrutiny. And it’s the government, not the thoughtful (if in my view mistaken) scholars, that gets to use the “notwithstanding clause”. If government were run by profs. Macfarlane and Baker, I would have fewer qualms about its ability to override judicial determinations of constitutional rights. But it is not.

As this case demonstrates, real-life governments are largely uninterested in thinking about constitutional rights. If they are allowed to disregard judicial decisions, they will not engage in serious deliberation themselves. They will press ahead with their political objectives, sloganeering and lying along the way. I have said this before ― in the face of judicial decisions with which I virulently disagreed ― and I say so again: if we are serious about constitutionally entrenched rights, we are better off with a categorical presumption against allowing legislatures to resort to the “notwithstanding clause”.

Accounts of Accountability

It’s important to keep politicians accountable. But what follows for regulation of money in politics?

Freedom of expression is necessary, among other things, to foster political accountability in a democracy. On that much we can surely all agree. But what follows from the link between the freedom of political discussion and our interest in holding our elected representatives to account? Specifically, when it comes to regulating money in politics, should a healthy concern with maintaining accountability cause us to favour more restrictions, or fewer? The answer to that question is, to say the least, not obvious, as a comparison between two judicial opinions linking democratic accountability and freedom of expression but coming to opposite conclusion shows.

In McCutcheon v Federal Election Commission, 134 S Ct 1434 (2014), the majority of the U.S. Supreme Court struck down limits on the total amount of money an individual is allowed to donate to candidates at an election. (The limit on the amount that can be given to an individual candidate was not at issue.) In dissent, Justice Breyer drew on the value of accountability to justify the limitation of the role of money in politics. He noted that “political communication seeks to secure government action. A politically oriented ‘marketplace of ideas’ seeks to form a public opinion that can and will influence elected representatives.” (1467) The protection of the freedom of expression, he continued, “advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.” (1467; emphasis in the original) According to Justice Breyer, the undue influence of substantial pecuniary contributions to politicians, which he characterized as

[c]orruption breaks the constitutionally necessary “chain of communication” between the people and their representatives. It derails the essential speech-to-government-action tie. Where enough money calls the tune, the general public will not be heard. Insofar as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point. (1467)

In other words, to keep politicians accountable to the voters, it is necessary to limit the influence of money on them, and in this particular case to uphold the constitutionality of limits on donations.

Compare this with the opinion of Australian High Court’s Chief Justice Mason in the case of Australian Capital Television Pty Ltd v Commonwealth, (1992) 177 CLR 106. At issue were provisions eliminating the ability of both political parties and candidates and of “third parties” to pay for electoral advertisements in broadcast media. (Parties represented in Parliament were given some free time for their advertisements.) Chief Justice Mason also extolled the virtues of democratic accountability and emphasized the link between the actions of the governors and the opinions of the governed:

the representatives who are members of Parliament and Ministers of State are not only chosen by the people but exercise their legislative and executive powers as representatives of the people. And in the exercise of those powers the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act. Freedom of communication as an indispensable element in representative government. [37]

Democratic accountability thus required that the freedom of expression be protected (even in the absence of an explicit guarantee in the constitutional text):

Indispensable to that accountability and that responsibility is freedom of communication, at least in relation to public affairs and political discussion. … Only by exercising that freedom can the citizen criticize government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives. … Absent such a freedom of communication, representative government would fail to achieve its purpose, namely, government by the people through their elected representatives; government would cease to be responsive to the needs and wishes of the people and, in that sense, would cease to be truly representative. [38]

So far, so similar to Justice Breyer. But from this, Chief Justice Mason went on to reason that the restrictions on electoral advertising at issue could not stand, because they were incompatible with the freedom of political communication, and thus undermined democratic accountability. More money in politics, not less, was the way to keep politicians accountable to the people.

Now, contrasting these two opinions in this way is oversimplifying things. The issues in McCutcheon and in Australian Capital Television were somewhat different. The former concerned the giving of money to politicians; the letter, spending both by politicians and by civil society actors. Although both come within the general category of “money in politics” concerns, it is possible to think that one but not the other can be strictly regulated. Besides, to some extent at least, both McCutcheon and Australian Capital Television were about means, not just ends. It is possible that, confronted with different regulations, both Justice Breyer and Chief Justice Mason would have reached different conclusions by reasoning from the same values.

That said, we know that the same faction of the U.S. Supreme Court that dissented in McCutcheon was also favourable to restrictions on electoral speech by (at least some) members of the civil society in Citizens United v Federal Election Commission, 558 US 310 (2010). And while there might be a point at which Justice Breyer would have balked at the limitation of permissible financial contributions to politicians, it is not clear where that point lies. Conversely, although Chief Justice Mason suggested that a less restrictive set of regulations might have been compatible with the freedom of political communication, existing regulatory schemes, such as Canada’s or New Zealand’s, would likely not have made the cut, and I struggle to imagine one that would. The disagreement is not only, and I suspect not mainly, about means. It is driven to a substantial extent by conflicting interpretations of the value of accountability.

I’ll leave to another post (maybe, sometime) a discussion of who, if anyone, of Justice Breyer and Chief Justice Mason is right. My point here is rather that appeals to values, and even to generally accepted truths (such as the importance of free political expression to democratic accountability) are unlikely to settle the difficult disputes that arise in the law of democracy. The values may be shared at a sufficiently high level of abstraction, yet understood so differently as to lead those who hold them to starkly different conclusions.

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.