Democracy Watch, in partnership with the National Anti-Poverty Organization
(NAPO), intervened in the Supreme Court of Canada's hearing of the Harper
v. Canada case mentioned in the op-ed set out below. You can see
the arguments of Democracy Watch and NAPO by clicking on the following
link: Factum in Harper v. Canada
For more information about all of Democracy Watch actions on money in politics issues in Canada, go to Democracy Watch's Money in Politics Campaign webpage
The Supreme Court this week (Tuesday, February 10) will hear Stephen Harper’s challenge to a law that limits the amount of money that can be spent on partisan “third-party” election advertising.
Third-party spending is money spent by corporations, unions and other organizations during an election to support or oppose a candidate or party. It is common in the United States, where groups frequently sponsor “attack ads” against those running for office in order to influence the vote. Although not as prevalent in Canada, businesses and other groups frequently air such ads during elections.
Unlike the United States, Canada has historically kept the cost of running for office reasonable, primarily by limiting what candidates and parties can spend in an election. New rules coming into effect this year augment this regime by introducing new limits on political donations, as well as spending limits on candidates for party leadership and nomination contests.
Without any limits on what third parties can spend, those seeking office could simply circumvent their own campaign finance restrictions by delivering their messages through businesses, labour unions and other organizations. As U.S. experience shows, such loopholes mean ever-rising costs for campaigning, with the result that running for office becomes limited to the wealthy.
The limits in the Canadian third-party spending law are quite generous, and are clearly targeted at those who attempt to use wealth to influence elections. Any person or organization wishing to buy election campaign ads can spend up to $150,000 for a national campaign, or up to $3,000 for a campaign focused on a single riding or candidate. The limits do not apply to the most common forms of election advocacy employed by third parties, such as issuing press releases, holding press conferences and public meetings, or distributing newsletters and pamphlets -- any of which can be engaged in without being caught by the law’s provisions.
The challenge to the limits was originally launched by Harper before his return to politics, when he headed the National Citizen’s Coalition. Harper himself has not been talking much about Harper v. Canada, preferring to let the NCC speak in his name.
The NCC argues that “In a democracy all citizens should have the opportunity to freely express opinions and to criticize or praise politicians.”
Sounds pretty good, but if you recall that what the law restricts is paid advertising in excess of $150,000, what they’re really talking about is freedom of speech for those few who can afford to spend huge sums on election advertising.
At the riding level, a limit of $3,000 might seem overly restrictive when candidates can spend roughly $65,000. But once they pay for office space, computers, lawn signs and so on, few candidates can afford to pay for any significant advertising without violating their limit. Three thousand dollars can go a long way in a single riding, especially when one considers that there may be many individuals spending $3,000 each to attack a candidate, and that the candidate would not be able to respond with his or her own ads.
Harper is even fighting disclosure provisions in the law that require third parties to identify who is paying for the attack ads they run, although this reluctance likely has more to do with the NCC’s own steadfast refusal to reveal who their donors are.
If you accept the reasoning of Harper and the NCC, you would have to consider not only third-party limits to be a violation of freedom of speech, but also spending limits on parties and candidates, since the same “money equals speech” principle would apply to these measures. Indeed, an earlier NCC challenge in Alberta that struck down third-party limits on constitutional grounds recognized this, stating that candidate and party spending limits were “additional, apparent Charter breaches.”
Eliminating election spending limits would mean an end to Canada’s system of keeping election costs reasonable, and immediately lead to a U.S.-style spiraling of campaign expenses, with the result that wealthy candidates would be given an enormous advantage. European courts have recognized this, rejecting challenges to third-party election spending restrictions. Even U.S. courts, which until recently maintained the “money equals speech” approach, have turned the corner on this issue. In a case last December, the U.S. Supreme Court distanced itself from the 1976 ruling that established that spending limits were unconstitutional. A challenge to a recently passed U.S. campaign reform law brought by the National Rifle Association and other lobby groups was rejected by the court, which said that third-party spending limits no longer violate U.S. freedom of speech provisions.
Hopefully Canada will follow suit, since freedom of speech and electoral fairness demand that all voices should have the opportunity to express themselves, not just the wealthy.