Still Playing Favourites

Despite its broader focus, the Court Challenges Program remains objectionable

The federal government has officially announced that it is bringing back the Court Challenges  Program, which provides money to individuals or groups who pursue litigation in which they assert certain constitutional or quasi-constitutional rights. In comparison with past iterations, the program will subsidize claims based on a broader range of rights ― not only equality and language rights under the Canadian Charter of Rights and Freedoms and the Official Languages Act, but also those based on sections 2, 3, and 7 of the Charter (protecting, respectively, “fundamental freedoms” of religion, expression, and association; the right to vote; and the rights to life, liberty, and security of the person). Yet even with this broader focus, the program reflects a flawed and indeed disturbing approach to the constitution by the government.

As I wrote in a post for the CBA National Magazine’s blog last year, we should question the government’s decision to prioritize the enforcement of some parts of the constitution over others. I noted that the government does have a special statutory mandate, under the Official Languages Act, to promote the recognition of both official languages and, especially, the vitality of minority linguistic communities throughout the country ― but of course a court challenges programme is only one of a myriad ways in which this might be done. And there is certainly no mandate to promote some Charter rights in particular. Why are, for instance, the due process rights protected by sections 8-14 of the Charter left out? Nor is there any reason, to promote the respect of Charter rights but not that of other constitutional provisions, such as those pertaining to the division of powers.

The choice of priorities for the Court Challenges Program is symbolic, and as I wrote last year

the symbolism is wrong. In choosing to fund court litigation based on language and equality rights, Parliament isn’t just sending the message it values these rights. It also says that it values these rights more than others. In other words, Parliament is playing favourites with the different provisions or components of the constitution. Yet they are all, equally, “the supreme law of Canada,” which Parliament is bound to respect in its entirety. Thus, in my view, signalling that it regards respecting parts of the Constitution more than the rest, in itself contradicts the principle of constitutionalism.

The government’s public statements today only confirm my impression. The Prime Minister has tweeted that the Court Challenges Program “will help protect the language & equality rights of all Canadians” ― singling out the rights targeted by the old versions of the programme, and omitting even those added by the one announced today. Meanwhile, the Justice Minister brags about “reinstating the Court Challenges Program as we celebrate #Charter35 to show our commitment to human rights and the rule of law” ― without any mention of, you know, that other anniversary we are also celebrating this year, which someone committed to the Rule of Law might also want to notice.

I have other objections to the Court Challenges Program too ― notably, to the fact that it funds challenges not only against federal laws, but also provincial ones, which strikes me as disloyal behaviour for a partner in the federation. If provinces want to pay people to challenge their own laws, they do can do it on their own ― but they should have the choice. And of course, it is doubtful that such a program is really the most effective way for the federal government to uphold the Rule of Law. Giving teeth to its internal reviews of proposed legislation for Charter and Canadian Bill of Rights compliance might be one good place to start instead; there are others as well.

But as the program is first and foremost symbolic, and in light of the Prime Minister’s and the Justice Minister’s statements, my objection to the program’s symbolism, to its playing favourites with the constitution which the government ought to respect in its entirety, is perhaps the most important one. Although plenty of people in legal academia (including Grégoire Weber, who is currently an adviser to the Justice Minister) and the bar have praised the return of the Court Challenges Program, I have not seen a response to my objections. It’s not that I am entitled to have my objections responded to, of course ― but I would be very happy to publish a guest-post if anyone cares to do it. Any takers?

Do You Really Have to Go?

Lessons for Canada and New Zealand on resignations of MPs

A recent article by Audrey Young in the New Zealand Herald observes that the number of resignations of Members of New Zealand’s Parliament during the course of the terms for which they were elected has increased since the country moved from the first-past-the-post electoral system (which Canada now has) to the mixed-member proportional (MMP) system. Ms. Young also writes about proposals to reduce the number of resignations. There may be something for both Canada and New Zealand to learn from each other here.

The overall numbers are stark: “In the 20 years before MMP began in 1996, there were 14 vacancies ― nine caused by resignations of MPs and six by deaths while in office. [NOTE: It occurs to me that the numbers don’t add up; but the correct figure is relatively unimportant here.] In the 20 years since … there have been 48 vacancies”, 45 of them caused by resignations. New Zealand’s Parliament was enlarged when MMP was introduced, but the increase of its membership from just below 100 to 120 does not account for the growth in the number of resignations. Of course, correlation does not equal causation; but there are in fact good reasons to think that there is causation here.

Most significantly, Ms. Young notes that of the 45 MPs who resigned, 30 were “list MPs”. Yet there are at one time only 50 (or, with the occasional addition of overhang seats, sometimes 51 or 52) such MPs in New Zealand’s Parliament, compared to 70 elected in single-member districts. The smaller pool of list MPs is providing two thirds of all resignations. And it’s not hard to see why that might be the case: when a list MP resigns, he or she is simply replaced “by the next available candidate on the party list.” There is little cost for the party, for getting a soon-to-retire or an out-of-favour MP to retire, and replacing him or her with a more eager or better liked one.

Yet David McGee, a former Clerk of the New Zealand Parliament, writes in the Herald that all these resignations are “deleterious to the institution of Parliament and to the sense of obligation that members should feel to it”. While does not elaborate this very much, he adds that “[m]embers in the final year of a Parliament can and should be expected to contribute to its work for the full term that they have signed up to”. And so Mr. McGee suggests a solution to this problem. “In the case of list members … any vacancy occasioned by resignation should not be filled.” This will disincentivize the parties, which prompt most these resignations, from ever doing so.

For Canadian advocates of electoral reform generally, and especially of MMP (which I take it is the most popular option among reformers), there is a warning here. Electoral reform is likely to bring in more resignations ― and more MPs brought in from lower down party lists, without the publicity or scrutiny of elections. An unintended consequence, no doubt, but arguably still an unpleasant one. And solution proposed by Mr. McGee is not very appealing either, it seems to me; it is too dependent, for its attractiveness, on complete success. If it fails to prevent resignations, then it will result in departures from the principle of proportionality of representation ― and in a finely balanced Parliament might even cause a change in the balance of power. And to achieve the absolute success it requires, Mr. McGee’s proposal incentivizes parties in a way that is arguably no less perverse than that of the current system for being its opposite: a party will do everything to keep a list member, even one involved in scandal or found to simply be incompetent, from resigning, and diminishing its power. As Edward Willis points out,

the ability for politicians to resign is usually understood to be an important accountability mechanism. Politicians do not always cover themselves in glory, and sometimes the people want (metaphorical) blood. Falling on one’s sword in a public manner demonstrates the accountability of the political system to the people at the level of the individual politician, and for that reason alone I would be hesitant to put anything in the way that would prevent or inhibit political resignations.

The same concerns arise with respect to Mr. McGee’s proposal for dealing with resignations of MPs elected by constituencies, Mr. McGee argues that

as a condition of being declared elected, electorate members should be required to enter into a bond to serve through the full term of the parliament. The amount of the bond would not cover the full cost of a byelection … but it should be sufficiently high to provide a financial disincentive to resignation for the member and for the party backing the member.

The only exception he would make to the application of these penalties would be for those MPs who resign “on health grounds proved to the satisfaction of the Speaker or the Electoral Commission”.

The idea is similar to one that has already been implemented in Québec, where the Act Respecting the Conditions of Employment and the Pension Plan of the Members of the National Assembly provides, since 2015, that the Assembly members who do not complete the term for which they were elected forfeit the “transition allowance” to which they would otherwise be entitled. Pursuant to section 12 of the Act, a member who resigns can only get his or her allowance upon proving, to the satisfaction of the Assembly’s Ethics Commissioner, that the “resignation is due to a serious family matter or to a major health issue affecting him or a member of his immediate family.”

When this idea was first floated in 2013 by the then-Minister responsible for Democratic Institutions and Active Citizenship, Bernard Drainville ― who would later resign from the National Assembly in June 2016, right in the middle of a legislative term ― I criticized it here. I noted that the supposed “moral contract” between the voters and their representatives, which bound the latter to serve out their terms, appeared to be a matter of wishful thinking, if the experience of the leader of Mr. Drainville’s own party was anything to go by. Pauline Marois had resigned from the National Assembly in 2006, saying that “her heart [was] no longer in it”, and yet came back and was elected again in 2007, later becoming Premier. More importantly, though, I wrote that “requiring members of the assembly to serve out their terms would have perverse effects”, notably in that

it would incentivize a member mired in ethical problems, or even one charged with an offense, to cling to his or her seat rather than resigning and giving it up to another, better able to represent his or her constituents. And more broadly, citizens would not be well served by a representatives whose heart … was no longer in it, and who only show up at the Assembly in order to eventually collect their allowance. Mr. Drainville’s proposal would likely create such zombies.

Needless to say, not many people pay heed to my rants, and the proposal had sufficient bipartisan support that it was eventually enacted, not by Mr. Drainville’s Parti québécois, but by the Liberals who replaced them in government in the meantime.

If New Zealaders get serious about taking action against MP resignations, they would do well to consider Québec’s experience. It is still very brief, but perhaps already instructive. My worries about zombie-MNAs waiting to collect their allowance might have been exaggerated, though of course it is impossible to tell. What is clear, however, is that a financial penalty will not deter at least some legislators from resigning mid-term. Mr. Drainville himself did it, to take up a radio talk-show host job, after Pierre-Karl Péladeau resigned as Parti québécois leader and quit politics. Mr. Péladeau’s own resignation might have fallen within the scope of the “serious family matter” exemption, but his case also shows that a penalty that would be a serious matter for most people would have been of no concern at all to someone as wealthy as he is.

Indeed, this may be unsurprising. In New Zealand itself already denies any sort of golden parachute to members of Parliament who leave before the end of their term. Section 11 of the Members of Parliament (Remuneration and Services) Act 2013 only provides an “additional salary” to those who are “member[s] of Parliament immediately before the dissolution of a Parliament” ― and yet it has not stopped resignations. Admittedly, the amount to which members who serve out their term are entitled is only three months of salary, as opposed to up to a year in Québec. Still, that many choose to forego it ― even leaving just months before they would become eligible for it ― suggests that when a legislator becomes sick and tired of legislating, he or she may walk away from easy money just to get away from it. (Take that, all you cynics who think that politicians are only in it for greed or lust for power!)

Our institutions have flaws; sometimes, very visible, even obvious flaws. Members of Parliament resign without finishing the job for which they were elected; governments come to office without the support of a majority of the people. It is tempting to look for an easy fix to these flaws. But these fixes may be less effective than they seem, and may create problems of their own if implemented. Moving to an electoral system featuring party lists may raise the number of parliamentary resignations; requiring prospective MPs to pay a bond to ensure against their resignation may fail to provide that insurance, yet deter the less well off from standing for office. Tinkering with the rules may feel satisfactory, but it is perhaps better to remember that no system is perfect.

Selfie Slow-Down

I have already blogged about one American judicial decision on the constitutionality of a “ballot selfie” ban, which has since been upheld on appeal by the Court of Appeals for the 1st Circuit. And I have also written about the history of the secret ballot, which in my view explains why measures to protect ballot secrecy ― including bans on something that might at first glance appear quite innocuous, like a selfie showing for whom a person has voted ― are actually more important than they seem. Another American decision issued last week, this one by the Court of Appeals for the 6th Circuit, provides some additional food for thought on this issue.

Much of the discussion in Judge Sutton’s majority opinion in Crookston v Johnson is procedural. The case came up as an application for a preliminary injunction preventing the enforcement of Michigan’s prohibition on “exposing marked ballots to others”, (1) and Judge Sutton concludes that it is simply too late to grant one now in anticipation of the elections to be held on November 8. The people who will be running the election have already been trained and have received specific guidance on photography at the polling stations. Changing the rules at this point would create unnecessary confusion. So Judge Sutton does not rule on the merits of the case, which will be assessed later, assuming the applicant still cares. (This situation is reminiscent of the Canadian cases about election debates, which are invariably brought on an emergency basis when the debates are set up, and invariably abandoned before a full merits hearing once the election has taken place.)

But Judge Sutton does make some comments that bear on the merits of the dispute, and, although preliminary, these comments strike me as quite sensible and interesting. One observation is that

many Michigan voting stalls … are simply tall desks, placed next to each other, with three short dividers shielding the writing surface from view. In this setting, posing for a ballot selfie could compromise the secrecy of another’s ballot, distract other voters, and force a poll worker to intervene. (4)

My memory of Canadian voting stalls is a bit hazy ― I skipped the last election because I couldn’t tell which of the parties was worst ― but something like that might be true of them too. And indeed, even if it is not in any given case, it is worth thinking about whether our voting arrangements must actually be planned so as to cater to the “needs” of people wishing to snap a selfie.

Another practical point is that allowing ballot selfies could create a “risk of delay” at the polling stations, “as ballot-selfie takers try to capture the marked ballot and face in one frame—all while trying to catch the perfect smile”. (5) In a brief concurrence focusing entirely on the issue of delay, Judge Guy makes the additional point that “with digital photography, if you don’t like the way you look in the first one, you take another and so on ad infinitum.” (7) He wonders, too, whether “the allowance of taking a selfie also include use of the ubiquitous selfie stick”. (7)

And then, there are the issues that I have already discussed here ― whether the absence of evidence of ballot selfies’ harm shows that there is no reason for banning them or, on the contrary, demonstrates the effectiveness of the bans as a prophylactic measure. Judge Sutton clearly thinks that the latter is the case. Moreover, “[t]he links between [voter corruption and intimidation] and the prohibition on ballot exposure are not some historical accident; they are ‘common sense'”. (5, quoting US Supreme Court precedent.) Chief Judge Cole, dissenting, takes the contrary view, as have other American courts that have addressed selfie bans.

For own part, without expressing an opinion as to which of these views is correct as a matter of U.S. law, I have more sympathy for Judge Sutton’s. While I have been dwelling on the importance of evidence in constitutional adjudication for some time now, and critical of restricting rights on the basis of assumptions no later than yesterday, the evidence is actually there, albeit that it is mostly historical. Moreover, a court should be able to pronounce on the issue of delay without waiting for an “experiment” to take place. Common sense can be an unreliable guide to adjudication, but ― absent evidence to the contrary ― courts should be able to rely on it sometimes.

Prohibitions of ballot selfies might seem counter-intuitive or even quaint. In the United States, they run counter to the very strong tradition of virtually untrammelled freedom of expression. While I sometimes wish that Canadians took more inspiration from that tradition than they do (for example when it comes to the criminalization of “hate speech”), this is one instance where a more even-handed weighing of competing interests might be in order. Judges Sutton and Guy provide a useful reminder of what some of these interests are.

Yes Or No?

Post-Brexit thoughts on referenda, especially in the context of electoral reform

In the aftermath of the Brexit referendum, there is renewed debate about the lessons, if any, that it might hold for other democratic polities on the use of the referendum generally, and in particular for Canada about an eventual referendum on electoral reform. Many of those opposed to such a referendum have seized on the political ignorance and the acrimony on display in the United Kingdom to bolster their arguments. The problems they point to are real, but the case against a referendum on electoral reform is still not compelling.

First of all, it is important to note that the question of whether a referendum is the right way to settle a political controversy does not arise in a vacuum. If the issue has impressed itself with sufficient urgency on the public debate ― and in the Brexit case, this may be an open question ― it has to be resolved somehow. If not by referendum, then by a parliamentary vote. (Sometimes, adjudication or a reference to a court are also available, but not that often, so let’s discount that possibility here.) To say that a referendum is not the way to resolve the issue, it is not enough to point to that procedure’s flaws. It is also necessary to show that they are worse than those of the alternative. Moreover, it is not enough to point to one referendum that turned out badly (whatever “badly means), or to one successful parliamentary debate, to settle the question. Examples are useful, but to be persuasive, they have to be related to some underlying features that the procedures in question will usually, if not always, have.

Now, that political ignorance affected the Brexit vote, and would affect any other referendum, is not exactly a surprise. Ilya Somin discussed the data on political ignorance’s effects on the Brexit referendum in a detailed post at the Volokh Conspiracy, but those looking for a tl;dr can refer to this tweet from Google Trends showing that, after it was announced that the UK voted to leave the European Union, its residents started looking for answers to questions such as “what is the EU?” and what leaving it entails. Presumably, more than a few of these suddenly-curious people had cast their ballots without having any idea of what they were doing. There was also anecdotal evidence of “leave” voters having second thoughts after their preferred option turned out to have won. And given how little informed voters generally are, there is no reason to think that this particular referendum was an outlier.

There was also plenty of evidence of bitter divisions in the British polity in the aftermath of the vote. That too may be a feature of many referendums, though it’s not clear to me that it has to be a feature of all. I may be missing relevant information, but I do not know that New Zealand’s series of referenda on electoral reform was particularly divisive, and it is not at all obvious to me that a referendum on this topic in Canada would cause “deep divisions within Canadian … societ[y], divisions which [would not be] easily healed,” as Democratic Institutions Minister Maryam Monsef has implied. Referenda about issues seen as well-nigh existential, such as Québec’s future within or outside Canada, are divisive because the issues themselves are. Those about relatively pedestrian matters, such as the electoral system, are unlikely to be.

A referendum is thus highly likely to be affected by voter ignorance, and may, depending on the issue, prove dangerously acrimonious. But what about the alternative? As prof. Somin points out in a post asking whether “the Brexit vote prove[s] democracies should not use referenda,”

Elected officials may, on average, know more about policy issues than voters. But they need to cater to an often ignorant electorate in order to get elected in the first place. For that reason, policymaking by elected officials is often influenced by public ignorance no less than referenda are.

He adds that

In [an] election, there are many different issues on the agenda, which makes it hard for rationally ignorant voters to follow more than a small fraction of them. By contrast, a referendum can focus the voters’ attention on a single discrete question, thereby reducing the information burden.

And for divisiveness, it seems to me that a close election between two (or perhaps more) stark alternatives can be as divisive as any referendum, if we control for the importance of the issue. (Few elections are seen as being as vitally important as some ― though not all ― referenda.) The 2000 election in the United States left bitterness and division enough to last for two presidential terms and even beyond; and even the 2011 election in Canada left in its wake plenty of people who were convinced that the end times of Canadian democracy were at hand. Nor do I see a reason to see that ― again allowing for the significance of an issue to the public opinion ― having it debated in Parliament will turn out to be less divisive. As Andrew Coyne notes in a National Post column,

[r]eferendums are not themselves inherently divisive; rather, they are usually called precisely when the public is most sharply divided — so divided that the issue cannot risk being decided by ordinary means. If you think Quebec was divided during the two referendums on separation, try to imagine the mayhem that would erupt were the Parti Québécois to try to rip the province out of the country by a simple vote of the legislature.

In an op-ed in the Globe and Mail, Mel Cappe and Janice Gross Stein cite “the debate on the right to assisted death in Canada [as] an example” of enlightened parliamentarism, concerned at once “with interests of the majority” and “the rights of minorities.” But they conveniently forget to mention the fact that this debate only happened because of, and took place within the bounds defined by, a decision of the Supreme Court. Moreover, assisted death is an issue on which there seems to be, a fairly broad, if vague, consensus (though there is probably less agreement on the details than on general principles). If the debate in question was a relatively dignified one, that likely had a good deal to do with this consensus, and not only with the form it took.

There is another characteristic of parliamentary decision-making worth mentioning here. Not always, but more often than not, parliamentary votes are whipped party-line votes. If the leaders of the parliamentary majority decide that they want their caucus to vote a certain way, they will almost invariably get their way. In such cases, meaningful deliberation before a vote is a parliamentary ideal, but not a parliamentary reality. Thus, on an issue decided by party-line votes, parliamentary decision-making amounts to treating the last election ― in which that issue may well have featured only peripherally if at all ― as a sort of referendum-by-proxy on that issue.

So I don’t think that, as a general matter, referenda can be ruled out as a democratic decision-making procedure, as profs. Cappe and Stein suggest. At the same time, there issues that lend themselves to resolution by referendum much better than others. I am skeptical of arguments to the effect there that “constitutional,” or “very important,” issues, or those decisions on which are irreversible, should never be decided by referendum, not least because these categories are  vague and therefore liable to be twisted an abused in public debate. I have argued here that even the contention that issues of rights should not be put to a vote in a referendum is a dubious one. However, Prof. Somin has identified a couple of other factors that are more useful to draw the line.

First, prof. Somin writes that

referenda are often likely to be particularly poor mechanisms for making decisions on issues that involve complex tradeoffs with other priorities. … Legislators are more likely to have the time and expertise needed to study the tradeoffs in at least some detail.

Put another way, a referendum is only appropriate when it should be reasonably clear to at least a modestly diligent voter what each option involves. In a post on his (excellent) Public Law for Everyone blog, Mark Elliott points out that in the Brexit case,

[a] slim majority of those who voted may have expressed a desire to “leave”, but what that means is such an open question as to render the referendum outcome largely meaningless. … [T]hose who voted ‘leave’ … could not have been expressing, and did not express, any clear view about what the UK’s future relationship with the EU should look like precisely because no vision of that relationship was on the table.

The same was arguably true in the 1995 referendum on Québec’s separation. When one ― or more ― of the options on offer in a referendum is too vague, whether because it involves complex tradeoffs or because no one has bothered clarifying it, a referendum is not going to be a good idea. (It is worth noting, by the way, that this problem can affect elections if they are treated as referenda by proxy. As Emmett Macfarlane has been pointing out on Twitter, those who insist that Canadians want electoral reform because a clear majority of them voted for parties that supported it fail to mention that these parties were not very clear on what version of reform they favoured, and did not agree among themselves.) But if all the options are reasonably clear ― as they could be in a referendum on electoral reform, provided that the alternative(s) to the current system were actually specified in advance ― that objection is irrelevant.

Second, prof. Somin points out that

[r]eferenda might also be useful when it comes to issues where there is a serious conflict between the interests of elected officials and those of the general public. Most obviously, the former often can’t be trusted to deal objectively with issues that directly affect their own grip on power: electoral districting, campaign finance, and so forth. In such cases, the superior knowledge of politicians often actually does more harm than good, since they can use it to advance their own interests and the expense of the people.

This warning is relevant to the issue of electoral reform in Canada. Indeed, this should be blindingly obvious, given that every single party in the House of Commons (with the possible exception of the Bloc québécois) is supporting that electoral system which it believes will maximize its political power. Even profs. Gross and Stein concede that parliamentarians will “not always” have the best interests of the majority in mind. When we can tell that they do not, the case for a referendum becomes much stronger.

In my post on whether minority rights can be put to a referendum vote, I wrote that I was happy to live in a representative, not a direct, democracy. Many public decisions do involve such tradeoffs and uncertainty that resolving them by referendum is likely to be a bad idea. But that is not always true. In particular, it is not true of electoral reform. And sometimes, we can tell that our elected representatives are trying to help themselves at our expense. Again, that is true of electoral reform. When both of these factors are present at the same time, a referendum sounds like a very good idea. Let’s vote.

Permanent Censorship, Again

Ontario’s proposal for regulating pre-campaign political spending is wrong

Earlier this week, The Globe and Mail reported that the Ontario government is proposing to introduce legislation that would limit the flow of private money into the political process (and introduce public subsidies to political parties). There is no bill yet, as the government is consulting with (some of) the opposition, but there is a very handy table that sets out the details of the government’s proposal and compares them to the rules in other Canadian jurisdictions. In this post, I want to discuss one aspect of the proposed changes: the limitation of “third-party” spending during the six months prior to a scheduled general election to 600,000$ (see the table at p. 4). This proposal is, in my view, unconstitutional, and it is quite possible, although not certain, that the courts, which are likely to be asked to rule on the issue, will agree.

As is clear from the table, a number of Canadian jurisdictions limit the expenses that citizens, unions, corporations, and social movements who want to make their views on political issues known, collectively known to election law under the derisive name of “third parties,” can incur during an election campaign. The Supreme Court upheld the principle of such limitations in Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569, and it upheld the federal limits in Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827. No Canadian jurisdiction, however, currently limits third party expenses incurred prior to the official election campaign period.

What the table doesn’t say though is that British Columbia has tried to do so, only for its attempts to be twice found unconstitutional by the province’s Court of Appeal. In British Columbia Teachers’ Federation v. British Columbia (Attorney General), 2011 BCCA 408, the Court struck down limits imposed during a sixty-day pre-campaign period. Then, in Reference Re Election Act (BC), 2012 BCCA 394, the Court took the view that limiting third-party expenses during a period that could, depending on the dates of legislative sittings, vary from 0 to 40 days would also be unconstitutional. The province did not appeal on either occasion, so that the Supreme Court has not had an occasion to pass on the issue.

In commenting on the latter decision, I wrote that I wasn’t sure that Court was correct to conclude that Harper did not apply to the pre-campaign limitations of third party spending. Its rationale ― that the civil society needs to be silenced in order to make election campaigning a “level playing field” on which political parties can frolic unimpeded ― could be applied to the period preceding the official campaign, especially if the spending of political parties is also limited during that period, as it would be under the Ontario government’s proposal (see the table at 3). But, as I noted when discussing musings in Québec and within the federal government about limiting third party spending prior to or between election campaigns, Harper can indeed plausibly be read as precluding the extension of spending limits beyond the bounds of the election campaign.

In response to the dissent’s (cogent, in my view) observation that the spending limits imposed on third parties prevented them from communicating effectively, the Harper majority observed

that third party advertising is not restricted prior to the commencement of the election period. Outside this time, the limits on third party intervention in political life do not exist. Any group or individual may freely spend money or advertise to make its views known or to persuade others. [112]

This was an important part of the majority’s reasoning on the way to its conclusion that the spending limits were “minimally impairing” of the freedom of expression, and thus justified under section 1 of the Canadian Charter of Rights and Freedoms.

Beyond predicting of what the Supreme Court would or would not do if confronted with pre-campaign spending limits, it is, however, important not to lose sight of the principles at stake. As I wrote in my post on the possible introduction of limits on third party spending between federal election campaigns,

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

There are a couple of additional issues with the Ontario government’s proposal worth highlighting too. One concerns federalism. While provincial and federal electoral processes are separate, the issues and, to some extent anyway, the parties involved in them are not quite distinct. A limit on the ability of a civil society group to speak out about an issue relevant to a provincial election can also be a limit on that group’s ability to speak out on an issue ― that same issue ― relevant to federal politics. If these limits are imposed for a short time, it might be argued ― though perhaps not very convincingly ― that the interference with the other government’s sphere is incidental. But the longer the limits, the more tenuous that case is. There is good reason why Justice Rand wrote, in Switzman v. Elbling, [1957] SCR 285, that “[u]nder [Parliamentary] government, the freedom of discussion in Canada, as a subject-matter of legislation, has a unity of interest and significance extending equally to every part of the Dominion,” (306) and is therefore a federal, not a local concern. We have not given much thought to the relevance of this point to provincial electoral regulations, but we ought to before expanding them as much as Ontario seeks to do.

The other point concerns the proposed definition of “political advertising” (at p.5 in the table). It is modelled on the one in section 319 of the Canada Elections Act, and while not nearly as objectionable as the one used by Québec in section 404 of its Election Act (whose defects I discussed here), it is still problematic in that it is not fully technologically neutral. As I explained here (and in my article on the regulation of third parties and their role in contemporary Canadian politics),

the Canada Elections Act, for a reason that I do not understand, treats online communications differently from more traditional ones, in that it only only exempts online communications by individuals, and not those of organizations (whether corporations, trade unions, etc.) from its definition of electoral expenses. By contrast, for other forms of communications, notably those published in the traditional media, whether exempt from or included in the definition of (restricted) electoral expenses, the messaging of individuals and that of entities are treated in the exact same way. The singling out of online communications for a more stringent rule should be repealed.

Regardless of the views its government and, eventually, the courts take on the other issues I have raised here, it would be unfortunate if, legislating in 2016, Ontario were to repeat a mistake made by Parliament in 2000.

As I also explained in my article, “third parties” play an increasingly important role in contemporary politics, injecting ideas into the political debate which political parties prefer to focus largely on the personalities of their leaders and a select few wedge issues. I am therefore skeptical about the wisdom of regulating them at all. However, even if a case for limited regulation during the relatively short duration of an election campaign can be made out, there is no justification for extending regulation to long periods of time outside the campaign period. Ontario’s plans in this regard would quite possibly be found unconstitutional by courts, and in any event would be a most unfortunate move in the direction of political censorship. They should be scrapped.

Ideologies in the Marketplace of Ideas

The “marketplace of ideologies” is neither new nor quite disastrous

In a post over at Concurring Opinions, Ronald K.L. Collins laments what he regards as the rise, in the place of the good old marketplace of ideas, of a “marketplace of ideologies.” Prof. Collins writes that in this new marketplace, ideas, facts, “the constitutional process of governing,” and “the noble pursuit of truth” itself are only valued if and insofar as they can put to one’s favoured ideological use; otherwise they are dispensed with. Prof. Collins quotes a number of thinkers, from John Milton to U.S. Supreme Court Justices Holmes, Douglas, and Brennan, who wrote about truth prevailing over falsehood in the contest of ideas. His “fear” however is that “[t]he idea of our faith in ideas has passed,” because

[d]ogmatism is ideology’s calling card. Where ideology reigns supreme, an open mind poses a clear and present danger to its stability. There is no trade in ideas with ideologues, there is only the demand that all opposing views surrender to the preferred creed.

The dangers of dogmatism are real, and I hope that people such as professor Collins, or the bright and brave minds behind the Heterodox Academy project, do not give up the fight against orthodoxies, whether enforced by the state, by social justice warriors, or by anyone else. But I think that prof. Collins overstates both the novelty of the problem he decries and its extent.

Skepticism about the ability of truth to prevail over or even to hold its own against falsehood is an old idea, and one that was expressed not only by various censors, but also by people whose credentials as independent thinkers are quite beyond question. Fred Shapiro has pointed out, at Freakonomics, that the idea behind the well-known quip about a lie getting halfway around the world before truth can gets its shoes ― or its pants ― on, usually attributed to Mark Twain (in the shoes version) or Winston Churchill (the pants one), has been traced as far back as Jonathan Swift, in 1710. And then there is Edward Gibbon’s point, in The Decline and Fall of the Roman Empire, that while it may be tempting to think that Christianity spread and prevailed because of its truth, “truth and reason seldom find so favourable a reception in the world,” so that additional inquiry into the reasons for Christianity’s success is warranted.

More recently Bryan Caplan has pointed out in a post at EconLog that “[t]ruth doesn’t largely win out in a well-functioning market for ideas, because consumers primarily seek not truth, but comfort and entertainment” (emphasis prof. Caplan’s). The problem that prof. Collins is describing, then, is not that the marketplace of ideas has failed or been closed down in favour of the marketplace of ideologies, but that it is working about as well as it ever has. As for the lofty quotations prof. Collins invokes as evidence for the proposition that things used to be different, they show at most that some people might have thought that the consumers in the marketplace of ideas had other preferences ― not that this belief was correct.

Was it? I see no reason to think so. It might seem that ideological dogmas are pervasive now (especially in the United States), but what of the earlier dogmas of religion or simply of received wisdom and “common sense”? Were not those who dared go against these orthodoxies shunned, criticized, and sometimes murdered? Did people not compromise their search for the truth to avoid coming to uncomfortable conclusions? It may be that things are less different now than we tend to suppose, but I’m not even sure of that, and see little reason to think that they are worse. More likely, what is the case is that ideological influences are more visible than usual, not that they are stronger. As I have argued in the context of the comparison between Canadian and American courts, the fact that the influence of an orthodoxy is only really obvious when it is opposed by a countervailing orthodoxy does not mean that no orthodoxy is at work at other times.

Besides an absence of evidence to the contrary, there is another good reason to think that ideology was always a part of the marketplace of ideas ― not an alternative to it. Ideologies are a sort of appellation for ideas. Associating an idea with an ideology makes it possible to guess where the idea comes from, who its likely supporters and opponents are, what sort of consequences it might lead to, and so on, in more or less the manner in which knowing that a wine is a champagne or a rioja tells us where it comes from and what it might taste like. Of course, there is no central authority certifying an idea as liberal or conservative in the way wines are certified to earn their appellations ― though such authorities did not always exist for wines either. And, partly for that reason, the guesses we might make based on ideological labels are likely to be less accurate than those based on wine appellations. That indeed is one problem with ideologies. The bigger problem, though, is that ideas that would be recognized as rubbish if considered on their own merits can get a free pass as part of some ideological scheme whose adherents will uncritically accept them ― in the way that sparkling plonk might be able to command a premium price by virtue of being a champagne. Conversely, ideas that deserve consideration may be rejected out of hand by people who reflexively oppose their ideological appellation, just as one might refuse to drink perfectly good wine simply because it does not carry some label deemed necessary. These problems are serious, of course, but they are not, strictly speaking, caused by ideologies or appellations ― they are caused by closed minds, and closed minds would cause problems even if ideologies gave up their role to the old orthodoxies of religion and common sense.

“Things are merely just as horrible as they always were, not worse” is not a terribly inspirational thing to say. So here is something that might be a bit more hopeful. We can and should act as if the idea that truth prevails over falsehood were true regardless of whether we believe that it is, and perhaps even though we have reason to think that it is not. That’s what we do, after all, with human dignity or inalienable human rights. These ideas may not be true, but they are comforting and our life is more fun with them. That’s why we can hope that, despite everything, they will prevail.

No Solution

The reasons people don’t vote suggest a mandatory voting law would be futile

Statistics Canada has released the results of a survey, conducted in conjunction with the November 2015 Labour Force Survey, to inquire into Canadians’ “Reasons for not voting in the federal election, October 19, 2015.” These results are interesting, albeit not quite inaccurate. To my mind at least, they are further evidence for the proposition that mandatory voting is not the solution to what ails Canadian democracy.

A word, first, about accuracy. Elections Canada put turnout in the last election at 68.49%, though that doesn’t include voters who registered on Election Day. Adding the number of voting day registrations from the Elections Canada “Report on the 42nd general election of October 19, 2015,” I get to a turnout of 70.4% ― though the report itself actually gives a lower figure, 68%. Anyway, these discrepancies don’t matter for my present purposes. What does is that according to Stats Can, 77% of Canadians “reported that they had voted in the 2015 federal election.” So unless the survey’s sample was unrepresentative (which is unlikely though not impossible), anywhere between 7 and 9% of the respondents lied about having voted.

Of course, this suggests that, for these people anyway, voting already is a duty ― albeit one that they might shirk. Which way this cuts in the debate about mandatory voting, I’m not sure. On the one hand, these people don’t need the law to tell them that there is a duty to vote ― they already believe there is one. On the other, the probably need a relatively small nudge to act on their belief, so a mandatory voting law setting a small penalty for not showing up might be effective at getting them involved in the political process.

What about the quarter of the population who actually admit to not voting? Stats Can has a detailed breakdown of their reasons for not voting. Almost a third say they are not interested in politics. Would the threat of a (small) penalty get them to the polls? Quite possibly, though surely not all of them. But what would they do once they get there? The threat of a fine won’t make them develop an interest that they now lack. At best, they will be honest enough to spoil their ballots. At worst, they will cast reluctant, uninformed votes, which will surely not improve our democratic process.

A relatively small number ― only 7% of the non-voters abstained for “political reasons” other than a lack of interest. I suspect that most of these were people who ― like me ― did not find a candidate or party to their liking. If voting were mandatory, most of us would presumably spoil our ballots (or vote “none of the above” if that’s an option). As I’ve observed here, a spoiled ballot doesn’t really add anything to the democratic process either, and even a small number of “none of the above” votes (7% of 23% is just over 1.5% of the electorate) would not be taken as a serious message by the political actors).

Almost half of the self-confessed non-voters invoked what Stats Can terms “everyday life or health reasons” ― being too busy (almost a quarter of the abstainers), being out of town, or being ill. Quite a few of them especially, though surely not only, those who were ill, would be excused under a mandatory voting regime, after an inquisition into their circumstances ― which doesn’t strike me as something that the state should be engaging in, but I suppose the defenders of mandatory voting see things differently. Others, those who consider themselves too busy, may well regard a small fine as a cost worth incurring. Even if the fine does tip their utility calculus in favour of voting, it is difficult to imagine that they would be willing to expend the much more substantial amount of time and effort it would take for them to become reasonably informed about the issues. They would show up at the polls and, like those uninterested in politics (to whom, I suspect, they resemble more than they care to admit), cast an uninformed ballot.

Finally, 8% of non-voters said that they stayed home for “electoral-process related reasons” ― such as inability to prove their entitlement to vote, or to get to the polling station, excessively long lines, or lack or information about the process. I find it difficult to believe that the threat of a fine would change anything to situation of these people, most of whom would anyway be excused.

Making voting mandatory will not improve our democracy. It will not make people who cannot be bothered to take the political process serious invest their time in it. While it will doubtless force some ― though not all ― of them to the polls, they will not be good voters, whatever one’s definition of “good” in this context. Nor will mandatory voting make those who simply don’t like the options on offer change their mind. And it will certainly not cure the sick or provide identification or transportation to those voters who lack one or the other. Even assuming for the sake of argument that abstention is a problem, mandatory voting is not a useful solution.