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Money and Elections: Can Citizens Participate on Fair Terms amidst Unrestricted Spending?*

Published online by Cambridge University Press:  10 November 2009

Janet L. Hiebert
Janet L. Hiebert
Affiliation:
Queen's University
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Abstract

In 1996 the Alberta Court of Appeal struck down election spending limits for individuals, interest groups, corporations and unions for violating the Canadian Charter of Rights and Freedoms. These spending restrictions were part of a complex regulatory regime which sought to promote fairness by controlling the election spending of candidates and parties. Although this decision was not appealed to the nation's highest court, the Supreme Court disapproved the Alberta ruling in an unrelated decision. This suggests that spending limits are justifiable under the Charter. Yet if new legislation is not introduced, the Alberta decision will continue to govern election conduct throughout the country and could undermine the democratic ideal of citizens participating in fair terms in the act of self-governance.

Résumé

En 1996, la Cour d'appel de l'Alberta a annulé les dispositions fixant des limites aux défenses électorates que pouvaient engager les personnes, les groupes d'intérêt, les sociétés et les syndicats, en prétextant qu'elles violaient la Charte canadienne des droits et libertés. Ces limites s'inscrivaient dans le cadre du régime de réglementation complexe visant à promouvoir la justice en contrôlant les dépenses électorates des candidats et des partis. Même si personne n'a interjeté appel de cette décision devant la Cour suprême du pays, celle-ci a désavoué la décision de la Cour d' appel de l'Alberta dans un jugement distinct, ce qui porte à croire que le contrôle des défenses se justifie en vertu de la Charte. Pourtant, à défaut d'adopter une nouvelle loi, c'est le jugement de la Cour albertaine qui continuera de régir la conduite des élections dans l'ensemble du pays, ce qui risque d'ébranler I'idéal démocratique des citoyens qui participent de bonne foi à l'exercice de la démocratie.

Type
Research Article
Information
Canadian Journal of Political Science/Revue canadienne de science politique , Volume 31 , Issue 1 , March 1998 , pp. 91 - 111
Copyright
Copyright © Canadian Political Science Association (l'Association canadienne de science politique) and/et la Société québécoise de science politique 1998

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References

1 For a spirited commentary on this issue, see Dworkin, Ronald, “The Curse of American Politics,” The New York Review of Books, October 17, 1996.Google Scholar

2 Somerville v. Canada (Attorney General), [1996] 8 W.W.R. 199.

3 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c.11.

4 In October 1996, Alan Rock, minister of justice, announced that the government would not appeal the Somerville decision to the Supreme Court of Canada. He suggested that parts of the law were “not defensible” and indicated that the government was considering legislation that would “express” the “underlying objectives and principles” of the law. However, it did “not plan to go forward with monetary limits” (The Globe and Mail [Toronto], October 10, 1996, A8).

5 The Supreme Court addressed the Somerville decision in Libman v. Quebec (Attorney General) while reviewing the constitutionality of Quebec's Referendum Act. The Court specifically disapproved the Alberta Court's finding that the legislative objective was not justified or consistent with a free and democratic society (Libman v. Quebec [Attorney-General], [1997] SCJ No. 85 [unreported at the time of writing], para. 55, 56, 79).

6 Seidle, F. Leslie and Paltiel, Khayyam Zev, “Party Finance, the Election Expenses Act, and Campaign Spending in 1979 and 1980,” in Penniman, Howard R., ed., Canada at the Polls, 1979 and 1980: A Study of the General Elections (Washington: Enterprise Institute for Public Policy Research 1981), 226–279Google Scholar; and Hiebert, Janet, “Interest Groups and Federal Elections,” in Seidle, F. Leslie, ed., Interest Groups and Elections in Canada (Toronto: Dundurn Press, 1991), 3–76.Google Scholar

7 Alexander, Herbert E., “Money and Politics: Rethinking a Conceptual Framework,” in Alexander, Herbert E., ed., Comparative Political Finance in the 1980s (New York: Cambridge University Press, 1989), 12.CrossRefGoogle Scholar

8 Royal Commission on Electoral Reform and Party Financing, Reforming Electoral Democracy, Final Report, Vol. 1 (Ottawa: Minister of Supply and Services, 1991), 107–108.Google Scholar

9 See ss. 259 and 259.1 of An Act to Amend the Canada Elections Act, Third Session, 34th Parliament, 40–41–42 Elizabeth II, 1991–92–93.

10 The 1997 federal election occurred after research was completed for this article; hence, there is no systematic evaluation of independent expenditures. This does not mean independent expenditures did not occur. For examples, see a National Citizen's Coalition advertisement which targeted Ralph Goodale in the Regina Leader Post, May 27, 1997, and an advertisement in Le Devoir, May 26, 1997, A2, which identified several candidates, including Jean Chrétien and Stéphane Dion, with the message: “Jean Charest n'est pas moins dangereux. Chaque vote pour les fédéralistes est un vote contre le Québec et son territoire. Bloquons-les, dès le 2 juin! La partition, c'est le refus du Québec tel qu'il est. Ce refus s'est trouvé une expression: le Parti libéral du Canada. Ce parti a des candidats postéd dans chacune de nos circonscriptions.”

11 National Citizens' Coalition v. Canada (Attorney General), [1984] 5 W.W.R. 436 (Alta.Q.B.).

12 Author's telephone interview with Hughette Collins, former administrative assistant to Joseph Gorman, Commissioner of Canada Elections, September 16,1987.

13 Hiebert, Janet, “Fair Elections and Freedom of Expression under the Charter,” Journal of Canadian Studies 24 (1989–1990), 79.Google Scholar

14 Hiebert, “Interest Groups,” 20–23.

15 The Globe and Mail (Toronto), November 18, 1988Google Scholar, and The Toronto Star, November 20, 1988.

16 Johnston, Richard et al. , Letting the People Decide: Dynamics of a Canadian Election (Montreal: McGill-Queen's University Press, 1992), 163Google Scholar. Johnston's initial findings, although tentative, suggested that the flood of advertising in the last week of the election may have had a modest effect on voters' intention. See also Hiebert, “Interest Groups,” 24–25.

17 Somerville v. Canada (Attorney General), Alberta Court of Queen's Bench, Calgary, oral judgment, June 25, 1993, unreported.

18 This figure is based on a survey of newspaper advertisements which revealed expenditures of $158,010.92 and an additional $80,000 which the NCC said it spent on election advertising. This figure of $235,000 has been adjusted to reflect an advertisement by the NCC in the Calgary Herald which has been accounted for in the newspaper survey total. Newspapers surveyed during the election period were the Calgary Herald, The Catholic Register, The Halifax Chronicle-Herald, Ottawa Citizen, Le Droit, Le Devoir, The Edmonton Journal, The St. John's Evening Telegram, The Financial Post, The Gazette, The Globe and Mail, The Charlottetown Guardian, The Leader Post, La Nouvelliste, La Presse, The New Brunswick Telegraph Journal, The Toronto Star, The Vancouver Sun, The Kingston Whig-Standard and The Winnipeg Free Press.

19 Figure provided by Communications Director Gerry Nicholls in telephone interview with Nancy Loane, research assistant, December 9, 1993.

20 Nicholls indicated that the interest group spent $50,000 in Calgary, primarily on a television advertisement, as well as three newspaper advertisements and a mail drop in the riding of Calgary West. The television advertisement was a negative one, urging voters to defeat Hawkes for his “shocking” attempts to prevent election advertisements by those other than candidates and parties. The advertisement ran on the CTV's Calgary station CFRN.

21 National Citizens' Coalition, News Release, Calgary, September 27, 1993.

22 Calgary Herald, September 28, 1993, B2.

23 Nicholls characterized the advertisements as a “scorecard type” message with a negative assessment of the Conservative government's performance.

24 One of these was an advertisement by the Council of Canadians which warned voters that “those who cannot remember the past are condemned to repeat it” and offered a photograph and unflattering résumé of Kim Campbell while urging readers to vote to stop free trade, save social programmes and make Canada more democratic (The Globe and Mail [Toronto], September 21, 1993, A12) at a cost of $19,250. Another advertisement, sponsored by the Ontario Secondary School Teachers' Federation, asked “Who's Doing More for Public Education?” with reference to side-by-side pictures of Kim Campbell and the Sesame Street character Big Bird. The message was critical of the incumbent government's record and encouraged voters to support candidates who would remove the application of the Goods and Services Tax to books, restore federal transfer payments to provincial education budgets, invest in national child care and support post-secondary education (The Kingston Whig-Standard, October 16, 1993, 29) at a cost of $1,867.60. This advertisement also ran in The Toronto Star (October 16, 1993, A19) at a cost 6 of $7,020.90.

25 Jean Charest was the only incumbent government member who retained his seat.

26 Other candidates were targeted by independent expenditures in smaller advertising campaigns. Some of these advertisement combined an anti-abortion message with an endorsement of candidates who had answered “correctly” to questions that elicit support for introducing a law, and constitutional amendment, to protect the foetus from abortion. See advertisements by Campaign Life Coalition in The Charlottetown Guardian (October 16, 1993) at a cost of $1,140; and in The Regina Leader Post (October 22, 1993) at a cost of $494.

27 This total was spent entirely on negative advertising, including the $50,000 spent on advertisements directed at Hawkes and another $30,000 spent on advertisements with negative assessments of the incumbent Conservative government's record.

28 The NCC's advertisements in Calgary would have exceeded the legal limit of $1,000. The NCC did not provide the dates or costs of its other advertisements.

29 This was a principal claim in Somerville.

30 Apart from the NCC, a strenuous objection to the regulation of election advertising of either independent expenditures or candidates comes from Palda, Filip, Election Finance Regulation in Canada: A Critical Review (Vancouver: Fraser Institute, 1991).Google Scholar

31 See, for example, ibid; Cameron, Jamie, “Participation and Democratic Process: Do Third-Party Spending Limits Protect or Threaten Democratic Values?” Canada Watch (07/08 1993), 7–8Google Scholar; Francis, Diane, “A New Attack on Freedom of Speech,” Maclean's, May 31, 1993, 9Google Scholar; and Tyler, Brent D., “Third-Party Limits Hurt Public's Right-to-Know,” The Gazette (Montreal), July 31, 1997, B3Google Scholar. The following is an amalgam of many of these concerns and others raised in seminar or conference discussions on the subject.

32 The Supreme Court of Canada has ruled that the importance of free speech is not confined to the speaker but that it protects the listener as well. This is because it plays a significant role in enabling individuals to make informed choices, which is an important aspect of individual self-fulfilment and personal autonomy. See Ford v. Quebec (Attorney General 6), [1988] 2 S.C.R. 712 at 767.

33 Seidle and Paltiel, “Party Finance,” 227.

34 Stanbury, W. T., Money in Politics: Financing Federal Parties and Candidates in Canada (Toronto: Dundurn Press, 1991), 52.Google Scholar

35 Ibid., 411.

36 Somerville v. Canada 226.

37 Ibid., 222.

38 Stanbury, Money in Politics, 361.

39 Ibid.

40 Somerville v. Canada, 227.

41 Buckley v. Valeo, 424 U.S. 1 (1976) 48–49, 56–57.

42 Zechariah Chaffee argued that America's First Amendment was designed to protect the social interest which included “the attainment of truth … as the basis of political and social progress” (Chaffee, Zechariah Jr., Free Speech in the United States [Cambridge: Harvard University Press 1941], 137).CrossRefGoogle Scholar

43 This characterization is made by Barron, Jerome A., “Access to the Press—A New First Amendment Right,” Harvard Law Review 80 (1967), 1643CrossRefGoogle Scholar. Barron describes the judicial view of the First Amendment as a “romantic” conception of free expression because it uncritically accepts the view that constitutional status should be given to a free market theory in the realm of ideas.

44 The Alberta Court of Appeal's difficulty with spending regulations, given absence of proof of harm, echoes the concern expressed in 1984 when Mr. Justice Medhurst ruled that “Fears or concerns of mischief that may occur are not adequate reasons for imposing a limitation [on election advertising]. There should be actual demonstration of harm or a real likelihood of harm to a [societal] value before a limitation can be said to be justified” (National Citizens' Coalition v. Canada, 453).

45 Libman v. Quebec, para. 56.

46 Ibid., para. 78, 79, 80, 81. The Supreme Court indicated that the $1,000 spending limit in the federal legislation may be considered reasonable under the Charter. This inference is drawn from the Court's suggestion that the recommendation of the Lortie Commission represented a “far less intrusive” approach than utilized in the Referendum Act. Although the federal legislation was based on the Lortie Commission's recommendation of a $1,000 spending limit, it differed in one significant respect. The Lortie recommendation was to subject both issue and partisan advocacy to the $1,000 limit, whereas the legislation subjected only partisan advocacy to the $1,000 limit. Hence, the legislation can be considered to be even less intrusive than the Lottie recommendation.

47 Ansolabehere, Stephen and Iyengar, Shanto, Going Negative: How Political Advertisements Shrink and Polarize the Electorate (New York: The Free Press, 1995), 3.Google Scholar

48 Ibid., 48.

49 See ibid, for a discussion of some of the more memorable negative advertisements.

50 Ibid., 133.

51 Sunstein, Cass R., Democracy and the Problem of Free Speech (New York: The Free Press, 1995), 99.Google Scholar

52 “Politicians for Rent,” The Economist, February 8, 1997, 23–25.

53 “How to Cut the Cost of Politics,” The Economist, February 8, 1997, 17–18.

54 Dworkin, Ronald, Taking Rights Seriously (Cambridge: Harvard University Press, 1977), 269.Google Scholar

55 Dworkin, “The Curse of American Politics,” 23.

56 Somerville v. Canada, 229–31.

57 Ibid., 231.

58 Ibid., 229.

59 Perlin, George, “Party Democracy in Canada: An Introduction to the Issues,” in Perlin, George, ed., Party Democracy in Canada (Scarborough: Prentice-Hall Canada, 1988), 2.Google Scholar

60 Royal Commission on Electoral Reform and Party Financing, Reforming Electoral Democracy, Vol. 1, 256.

61 Ibid., 209.

62 Perlin, “Party Democracy in Canada,” 2.

63 Somerville v. Canada, Til. Minimal impairment is one of the criteria developed by the Supreme Court of Canada in its assessment of whether policies, which limit rights, are nevertheless reasonable and constitutionally sustainable. See R. v. Oakes, [1986] 1 S.C.R. 103.

64 For example, the study considered larger spending limits for individuals or groups that would be subject to registration and disclosure but concluded that this would be ineffective and overly burdensome (Hiebert, “Interest Groups,” 48–63).

65 The 1993 legislation departed from the Lortie recommendation by limiting only partisan advocacy and not issue-only advertisements. In its final report, the Lortie Commission concluded that the distinction between issue and partisan advocacy is sufficiently blurred that it “cannot be sustained” (Royal Commission on Electoral Reform and Party Financing, Reforming Electoral Democracy, Vol. 1, 354).

66 Irwin Toy Ltd. v. A.G. Quebec, [1989] 1 S.C.R. 927 at 989–990.

67 The Supreme Court stated that it is “important to limit independent spending more strictly than spending by candidates or political parties…. [Independent individuals and groups cannot be subject to the same financial rules as candidates or political parties and be allowed the same spending limits. Although what they have to say is important, it is the candidates and political parties that are running for election. Limits on independent spending must therefore be lower than those imposed on candidates or political parties. Otherwise, owing to their numbers, the impact of such spending on one of the candidates or political parties to the detriment of the others could be disproportionate” (Libman v. Quebec, para. 50).

68 Somerville v. Canada, 231.