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.

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.

Pré-Censure

La restriction de dépenses pré-électorales est injustifiée et possiblement inconstitutionnelle

Comme le rapporte La Presse, le Directeur général des élections du Québec, Pierre Reid, a dit dans un témoignage devant la Commission des institutions de l’Assemblée nationale travailler sur une proposition d’amendement à la Loi électorale en vue de limiter des dépenses « pré-électorale » ― c’est-à-dire celles engagées en vue des élections, mais avant le commencement de la campagne électorale officielle. Pour l’instant, ces dépenses ne sont pas limitées par la Loi. Or, la date des élections étant maintenant connue à l’avance (sous réserve de la capacité du Premier ministre de violer les dispositions sur les élections à date fixe, comme Pauline Marois l’a fait en 2014), la tentation de faire de la publicité tout juste avant l’entrée en vigueur des limites de dépenses applicables en campagne électorale va être plus forte que jamais. Nous l’avons vu au niveau fédéral, et nous risquons de le voir au Québec avant les prochaines élections. M. Reid s’en dit « préoccup[é] ». Moi, c’est plutôt son désir de limiter ces dépenses qui me préoccupe.

Notons, pour commencer, que M. Reid n’a pas pris la peine d’expliquer en quoi les dépenses pré-électorales sont préoccupantes. Or, une limite aux dépenses sur la communication politique est, comme la jurisprudence de la Cour suprême en la matière le reconnaît, une limite à la liberté d’expression. Il faudrait donc, avant d’imposer de telles limites, avoir une raison, une justification, un tant soit peu sérieuse. Pourtant, M. Reid n’en offre pas, et les députés présents ne lui ont posé aucune question à ce sujet. Pour ce qui est du devoir des élus et de l’administration de respecter les droits constitutionnels, on repassera.

M. Reid a également été flou sur la portée des restrictions qu’il souhaiterait faire adopter par l’Assemblée nationale. Il n’a pas été en mesure de préciser la durée de la période pré-électorale pendant laquelle les dépenses seraient limitées, par exemple. Cependant, il semble songer à une période de plusieurs mois, voire davantage. Il n’a pas, non plus, précisé si ces nouvelles restrictions s’appliqueraient aux seuls partis politiques ou également aux « tiers » ― c’est-à-dire aux individus et organismes, autres que les partis ou les candidats, souhaitant se prononcer sur les enjeux politiques. Là encore, notons que les députés n’ont pas demandé à M. Reid de préciser sa pensée.

Cependant, il est difficile de s’imaginer que les restrictions ne viseraient que les partis politiques. Si M. Reid ou les membres de l’Assemblée nationale sont préoccupés par ce qui s’est passé ou a failli se passer l’été dernier, juste avant les élections fédérales, ils ne sont pas sans savoir que les « tiers » ― notamment les syndicats (et non pas, contrairement à une certaine mythologie populaire, les multinationales) ont cherché à faire de la publicité « pré-électorale » autant, sinon davantage, que les partis politiques eux-mêmes. Et, généralement, le modèle canadien de réglementation des dépenses électorales suppose que l’on restreint davantage les dépenses des tiers que ceux des partis, afin de s’assurer que ceux-ci puissent dominer le débat public.

Or, si constitutionnalité des restrictions des dépenses pré-électorales des partis politiques n’a jamais encore été contestée devant les tribunaux, de telles restrictions n’ayant jamais encore été imposées au Canada, celles de restrictions similaires imposées aux tiers a, quant à elle, fait l’objet non pas d’une, mais de deux décisions de la Cour d’appel de la Colombie-Britannique. Dans  British Columbia Teachers’ Federation v. British Columbia (Attorney General), 2011 BCCA 408 et ensuite dans  Reference Re Election Act (BC), 2012 BCCA 394, ce tribunal a jugé inconstitutionnelle la limitation à 150 000$ des dépenses d’un tiers pour une période pré-électorale de 60 jours dans la première décisions, et d’au plus 48 jours dans la seconde. Ces décisions, contre lesquelles la province ne s’est pas pourvue devant la Cour suprême, ne lient évidemment pas les tribunaux québécois, mais auraient tout de même une autorité persuasive non-négligeable.

On peut, il est vrai, se demander, comme je l’ai fait ici en commentant la plus récente de ces décisions, si la Cour d’appel n’y est pas allée un peu trop loin en soutenant que la logique de l’arrêt de principe de la Cour suprême au sujet des dépenses électorales des tiers Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827, ne peut être étendue à la période pré-électorale. En principe, cette logique voulant qu’il faut limiter la capacité des tiers de communiquer leur message aux citoyens afin de s’assurer que les partis politiques puissent être entendus et afin d’égaliser les ressources des différentes forces en présence pourrait s’étendre au-delà de la campagne électorale, d’autant plus si les dépenses des partis sont limitées, elles aussi. Cependant, une telle extension du principe est loin d’être garantie. Comme je le soulignais dans un billet pour Policy Options où je discutais une idée similaire exprimée par Justin Trudeau, les juges majoritaires dans Harper ont insisté sur le « fait qu’aucune restriction ne s’applique à la publicité faite par les tiers avant le début de la période électorale. En dehors de cette période, les limites à l’intervention des tiers dans la vie politique n’existent pas » [112]. C’est notamment pour cette raison qu’ils ont conclu que la limitation très stricte des dépenses des tiers pendant la campagne électorale état une « atteinte minimale », et donc constitutionnellement permise, à la liberté d’expression. Si la liberté d’expression complète en période pré-électorale n’est pas respectée, l’évaluation que fera la Cour suprême des restrictions imposées aux tiers pourrait bien changer.

Au-delà du pronostic incertain sur une éventuelle décision judiciaire, il faut cependant se rendre bien compte de ce qu’une réglementation des dépenses des tiers en période pré-électorale signifierait. La réglementation, ne limiterait pas seulement la capacité des acteurs de la société civile ― des syndicats, des ONG, des mouvements sociaux, des « médias citoyens » ou de simples individus ― à s’exprimer sur les enjeux politiques. Elle imposerait aussi à tous ceux qui voudraient le faire, même à l’intérieur des limites de dépenses permises par la loi, d’onéreuses obligations de s’enregistrer auprès du Directeur général des élections et de lui faire rapport sur toutes les dépenses encourues pour faire passer leur message. Comme je l’ai dit dans Policy Options, l’extension de la limitation des dépenses des tiers au delà de la campagnes électorale serait un pas vers l’imposition d’un régime de censure politique à grande échelle.

Et même en ce qui concerne la limitation des dépenses des partis politiques, comme l’a écrit le grand spécialiste du « droit de la démocratie » américain, Richard Pildes, sur l’Election Law Blog, une fois qu’on cherche à étendre la limitation des dépenses au-delà d’une période bien circonscrite de campagne électorale, la situation devient trouble. Pourquoi limiterait-on la période pré-électorale à quelques mois, voir à une année? Or, les limites à la liberté d’expression qui semblent acceptables lorsqu’elles sont exceptionnelles, ne le sont plus forcément si elles deviennent permanentes. Et c’est vers ce scénario, qui me paraît inacceptable, que M. Reid et nos députés risquent de nous entraîner. Lorsque nos dirigeants ne se préoccupent guère de la liberté d’expression, nous sommes déjà en situation de pré-censure.

Twelve Banned Books Weeks

Once upon a time, I mused about whether Parliament could ban books as part of its regulation of election campaign spending. The specific question that interested me then was whether the exemption of “the distribution of a book, or the promotion of the sale of a book, for no less than its commercial value, if the book was planned to be made available to the public regardless of whether there was to be an election” from the definition of “election advertising” in section 319 of the Canada Elections Act (CEA) could be abolished. But now, just in time for Banned Books Week, life ― or, rather, the Public Service Alliance of Canada ― has come up with a somewhat different censorship scenario.

La Presse reports that the Alliance has complained to Elections Canada about political commentator, consultant, and activist Éric Duhaime’s giveaway of 5000 copies of his book Libérez-nous des syndicats! (Free Us from the Unions!). Mr. Duhaime is apparently giving the books away for free in order to counteract an anti-Conservative (and pro-NDP) campaign by Québec’s largest union, the FTQ, to which the Alliance is associated. In the Alliance’s view, the anti-union book falls with the definition of “election advertising” in section 319, and since it is being away for free during the election campaign, the exemption for books sold “for no less than [their] commercial value” does not apply. Since Mr. Duhaime has not registered with Elections Canada to advertise as a “third party” as section 353 of the CEA requires, he is, the Alliance says, acting illegally.

Mr. Duhaime says that he is not campaigning for or against a political party ― only against unions ― and thus is not infringing the CEA. But that’s not quite obvious. The CEA deems to be election advertising

the transmission to the public by any means during an election period of an advertising message that promotes or opposes a registered party or the election of a candidate, including one that takes a position on an issue with which a registered party or candidate is associated. (Emphasis mine)

The key issue, it seems to me, is whether Mr. Duhaime’s book (which, to be clear, I have not read) can be considered as “tak[ing] a position on an issue with which a registered party … is associated.” Is the anti-union position Mr. Duhaime expresses “associated with” the Conservatives ― as the Alliance seems to believe? Or is the pro-union position Mr. Duhaime combats “associated with” the NDP? I’m not sure, but I don’t think that the argument is an impossible one to make. As best I can tell, there is no case law interpreting s. 319 generally or the notion of “an issue with which a registered party or candidate is associated” in particular. And these terms aren’t exactly self-explanatory.

Which, in my view, is a big problem. Here we have a statutory provision that can be applied to punish speech, to impose fines on someone whose “crime” is to give away a book ― and we don’t actually know what it means. Mr. Duhaime probably enjoys the free publicity that comes with the complaint, but not everyone will feel that way. The problem of chilling effect from speech-restricting legislation that is imprecisely worded and thus difficult to interpret in advance of application is a real one.

Here’s another issue with the drafting of s. 319, while we’re at it. One of the exemptions from the general definition of “election advertising” concerns “the transmission by an individual, on a non-commercial basis on what is commonly known as the Internet, of his or her personal political views.” So suppose that Mr. Duhaime had put the text of his book on a freely-accessible website. That would pretty clearly fall within the exemption ― even if the website were only set up for the duration of the election campaign, since the statute says nothing about internet communications having to be “regardless of whether there was to be an election,” as it does for books. But now consider a somewhat different example. Suppose that, instead of just putting the text of his book on a website, Mr. Duhaime makes his book available as an ebook, say through the Kindle store ― again, for free. Does that count as an illegal “distribution of a book … for … less than its commercial value,” or as a legal “transmission by an individual, on a non-commercial basis on what is commonly known as the Internet, of his or her personal political views”? I have no idea. On the one hand, it’s not clear that an ebook ought to be treated any differently from a dead-tree book. On the other, it’s equally unclear why a text in .azw, or .mobi, or .epub format should be different, for the purposes of election law, from the same text in .html format. I guess it would be a fun question to put on a statutory interpretation exam, if you are a slightly sadistic professor.

But again, laws that restrict expression, especially expression on political issues, should not be written for the benefit of slightly sadistic professors of statutory interpretation. If expression must be restricted, as the Supreme Court believes the expression of “third parties” ― that is citizens and organizations who are not candidates or political parties ― must be restricted, at least the restrictions should be clear and narrowly defined. Citizens should not have to guess; nor should they be at the mercy of complaints by other citizens or groups who simply happen to detest their politics.

The shoe was once on the other foot. After the 2003 election campaign in Québec, another union associated with the FTQ was prosecuted by Québec’s election authorities for distributing a pamphlet criticizing a party that took an anti-union position ― a party whose leader Mr. Duhaime was then advising, as it happens. The union then challenged the constitutionality of the Québec legislation on third-party participation in election campaigns ― unsuccessfully. Now, it would seem, labour has learned to use this sort of law as a weapon against its enemies. (In fairness, however, Québec’s law was even more restrictive than the CEA. A union’s distribution of a pamphlet to its own members would not be a violation of the federal statute.) But we should, I think, be concerned that our election campaigns are in danger of becoming twelve-week-long periods for banning books.

Plus ça change…

This is the fourth and last post in the series about my most recent article, “‘Third Parties’ and Democracy 2.0″, (2015) 60:2 McGill LJ 253. On Monday, I introduced the paper, which deals with the repercussions of political and technological changes on our framework for regulating the participation of persons other than parties and candidates in pre-electoral debate. On Tuesday, I discussed political the political changes of the last 45 years, which have resulted in political parties more or less deserting the realm of policy debates, and leaving a void which can only be filled by those whom our electoral law considers to be “third parties” and relegates to the sidelines of pre-electoral debate. Yesterday, I discussed the effect of the technologies and business models of Web 2.0 ― a separation of spending and speech that has made it possible for third parties to participate in electoral campaigns without spending money, and thus without being subject to the limits imposed by our election laws.

Today, I consider the amendments I would like to see made to the Canada Elections Act and to similar legislation elsewhere, in light of the changes to the “facts on the ground” which such legislation covers. Perhaps counter-intuitively, my article argues that such amendments can actually be quite modest. I would prefer more substantial changes, to be sure, but they would require a different, more ambitious argument. While I have hinted at it in various posts here, I do not make it in the article. What I am concerned with there is, as I put it yesterday, keeping open the avenue for third-party communications created by Web 2.0.

To do so, the most important thing, as is often the case, is not so much to improve the current state of affairs as simply not to make it worse. There is a danger that the adherents of a conception of politics where pre-electoral debates are entirely dominated by political parties ― not least the parties themselves, but possibly also some electoral authorities ― will seek to restore the parties’ former privileged position by imposing limits on Web 2.0 communications by third parties not restricted by current rules. How serious this danger really is, I cannot tell. I am not aware of any real proposals to this effect, but then the impact of social media on electoral campaigns is only beginning to be felt. And there is at least a chance that politicians and bureaucrats will recognize the difficulty of regulating citizens’ expression on social media, the huge cost of attempting to enforce such regulations, the dangers of political abuse of the inevitably selective enforcement, and generally the huge amounts of censorship that would have to be imposed to achieve the desired effect.

Beyond this “do no harm” position, we can and should reform electoral laws in two ways, which recognize that in light of the political parties’ unwillingness to debate ideas, it is important to make it easier, not more difficult, for third parties to inject issues of policy into election campaigns. First, the existing limits on third-party expenses should be raised. There is plenty of room for doing so, even without calling into question the principle that their expenses should be limited to amounts substantially lower than those permitted to political parties. As I put it in the article,

the Supreme Court recognized long ago [in Reference Re Alberta Statutes – The Bank Taxation Act; The Credit of Alberta Regulation Act; and the Accurante News and Information Act, [1938] SCR 100 at 132-134], elections to Parliament are a national, not a local concern. It must be possible for Canadians to debate the issues they raise on a national and not only a local scale, regardless of the willingness of political parties to do so. (292)

And second, the rules on third-party communications need to be made technologically neutral. 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.

While my article is only concerned with federal law, I will say something here about Québec, because its Election Act suffers from the same problems as the federal legislation, but on a much greater scale. Its limit on third-party expenses is an absurdly low 300$, which of course prevents any sort of effective communication other than through Web 2.0 means. (For instance, I have blogged here about the case of Yves Michaud, who published an ad criticizing some members of Québec’s National Assembly for voting to censor him once upon a time, and was fined by the province’s electoral authorities. Mr. Michaud may be an odious character, but why shouldn’t he have been allowed to make his case?) Besides, only individuals are allowed to make their views known as third parties. Corporations, unions, NGOs, and social movements are forced to shut up altogether.

The Election Act’s provisions on third-party participation are also not at all technologically neutral. This has, in the last two election campaigns, resulted in electoral authorities attempting to shut down expression by online “citizen media” ― a website in 2012 and a short documentary in 2014. In both cases, the authorities quickly reversed course, but ― as I argued here ― it was their initial determinations that such advocacy was not permitted by the law that was correct, and their reversal was a deliberate misreading of the legislation, an attempt to mitigate the law’s harshness and obsolescence that was itself contrary to the Rule of Law. The statute urgently needs to be reformed.

To show the need of reform along those lines and, even more importantly, of avoiding pernicious reform in a (likely futile) attempt to restore political parties to a position of which Web 2.0 is depriving them ― and which they do not deserve ― was the ultimate aim of my article. But if I have just succeeded in making you appreciate the importance of the changes ― in politics as well as in technology and business models ― that are shaping the factual background which electoral law regulates, I have already accomplished something.

Free Speech

This is the third post in the series about my most recent article, “‘Third Parties’ and Democracy 2.0″, (2015) 60:2 McGill LJ 253. On Monday, I introduced the paper, which deals with the repercussions of political and technological changes on our framework for regulating the participation of persons other than parties and candidates in pre-electoral debate. Yesterday, I discussed political the political changes of the last 45 years, which have resulted in political parties more or less deserting the realm of policy debates, and leaving a void which can only be filled by those whom our electoral law considers to be “third parties” and relegates to the sidelines of pre-electoral debate.

Today, I take up the issue of technological change ― and especially the development of various “web 2.0” technologies and business models ― that has made political (as well as other) speech free not only in the legal, but also in the financial sense. I describe this change as the “separation of spending and speech.” I posted about it long ago, when I was writing the first draft of the article. But the issue is important enough to be worth re-emphasizing, and anyway only a few hardy souls were reading this blog at the time.

The idea is a simple one, but its implications are considerable. Up until ten years ago, at most, the only way a message (political or not), could be made to reach substantial numbers of people was through the print or electronic mass media ― either as content a media organization itself chose to run, as part of a news item or an editorial, or as an op-ed, or as a paid advertisement. Unless the media took up your message on its own volition ― and it had limited space to do so, especially for messages transmitted in the form chosen by their authors (such as newspaper op-eds), you had to pay for it to do so ― and pay a lot. The vast majority of individuals could not afford it ― when acting on their own, anyway, because organizations, notably trade unions, are in a different position thanks to their ability to pool together resources from large numbers of people.

Canadian election laws were written with this reality in mind. Those of them that regulate the participation by persons and entities other than candidates and political parties, a.k.a. “third parties,” address these the various types of communications and treat them differently depending on whether the third party has to pay for the transmission of the communication. Communications taken up by the media ― news reports, interviews, or op-eds ― are exempted from the definition of “election expenses” and thus not regulated. Paid advertisement is counted as an expense and strictly limited.

The combination of statutory spending limits and the limitations imposed by the technologies and business models of traditional mass media on the amount of third-party communications not covered by these limits served to circumscribe third party participation in pre-electoral debates. Political parties, by contrast, operate under much relaxed versions of these twin constraints. Spending limits to which they are subject are much higher than those imposed on third parties, and the media are more interested in giving them a voice ― even when, as I explained in yesterday’s post, the parties don’t really have anything interesting to say. Political parties could thus remain at the centre of the discussion.

Web 2.0 ― the websites that allow users to easily generate and communicate their own content, such as social networks, YouTube, and various blogging services ― changes things by removing one of the two constraints on the ability of third parties to communicate with voters. The spending limits are still in place, but it is no longer necessary to spend in order to speak. In Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827, which upheld the federal restrictions on third party advertising, the dissent pointed out that these restrictions were so low as to prevent a third party from taking out advertisements in the national press, or in the electronic media. The majority responded by observing that most people could simply not afford to do so anyway. Both of these facts were and still are true. But now, thanks to the separation of spending and speech made possible by the technologies and business models of web 2.0, both may also be increasingly beside the point. Even a single person’s rant about a political party can easily be seen by hundreds of his or her “friends” on Facebook ― at no financial cost to him or her. Ten years ago, reaching the same audience would probably have cost a substantial sum of money, if it had been feasible at all. And of course the possibilities of “sharing” and hyperlinking increase the potential audience one may reach exponentially, at no additional expense ― which, again is a dramatic departure from the pre-Web 2.0 days.

To be sure, the Web 2.0 means of communication have not yet entirely displaced the traditional media as a means of reaching large numbers of people. But they have added a crucially important avenue through which third parties can express themselves throughout an election campaign, and thus reduced the severity of the effects of the spending limits on their ability to do so. Conversely, they have have deprived political parties of their near-monopoly on the political debate at election time ― which they were using to avoid policy discussion to the greatest extent possible. In my next post, the last in this series, I will argue that the law should keep this avenue open, and suggest some (relatively modest) reforms to ensure that it does so.