Balancing Freedom and Democracy

Despite the hand-wringing over the Supreme Court's recent use of the Charter's freedom of speech and freedom of association provisions to strike down Quebec's third-party spending regulations, the ruling gives provincial and federal governments an opportunity to ensure more democratic and fair elections and referendums.

The ruling comes one year after Somerville v. Canada, a Charter challenge in which the Alberta Court of Appeal struck down the federal election spending limit of $1,000 for third-parties. The federal law also prevented people from "pooling" their funds to advocate their views.

One might have the impression that these two cases have slammed the door shut on third-party spending limits in Canada. However, the Supreme Court has actually swung it wide open for both elections and referendums.

In its unanimous ruling -- a rarity for Charter cases -- the Court first concluded that third-party advertising can have "a considerable impact on the outcome of the vote." Some commentators have disputed this conclusion but, as common sense would indicate, evidence has shown that, while it may not always determine the outcome of an election or referendum, third-party spending can influence voters' decisions.

More fundamentally, the Supreme Court recognized that "the principle of fairness presupposes that certain rights or freedoms can legitimately be restricted in the name of a healthy electoral democracy." The Court held that spending limits "are needed to preserve the equality of democratic rights," and that the spending limit system for political parties and candidates "would lose all its effectiveness if independent spending were not also limited."

Some commentators have responded that complete freedom of speech is more important than a fair and balanced voting process, an argument that equates spending money with free speech, and that fails to balance free speech with other democratic principles. A simple example illustrates the absurdity of this argument: Suppose someone decides to spend $5 million in lottery winnings, or a corporate executive decides to spend $5 million of company funds, during the lead-up to a vote. Is it democratic to allow that one person or a corporation (which isn't even allowed to vote) to spend this money trying to defeat a political party, a particular candidate who is limited to spending about $60,000 in an election, or to support one side of a referendum?

To maintain the balance between freedom and democracy, the Supreme Court's ruling does not limit anyone's right to hold news conferences, write letters to the media, or stand on a street corner and speak, but it does take steps to limit wealth as the determining factor in how loudly any one person can speak during voting processes.

The Supreme Court reasonably disagreed with the method chosen by Quebec -- a near ban -- to limit third-party spending. It held that some third-party spending should be allowed, and pointed specifically to the $1,000 limit struck down in Somerville as an acceptable amount. Some commentators have overstated the Court's use of this example, concluding that it is the only system the Court would uphold. In fact, the Court would allow other systems that are consistent with the goal preventing "the most affluent members of society from exerting a disproportionate influence by dominating . . . debate through access to greater resources."

The question now facing Canadian governments is how to implement third-party spending limits that ensure both democratic fairness and fundamental rights.

A blanket $1,000 limit would undoubtedly hinder the ability of corporations, unions and other organizations to outspend candidates and parties. But if Canadians are unable to pool their spending, official parties and candidates will maintain a virtual monopoly on advertising of opinions during elections.

A more democratic and fair spending limit system is one based on the electoral principle of "one-person, one vote." This would result in a restriction on third-party spending based on the actual support for the third party, allowing organizations with popular support to express their views, while ensuring that their spending does not distort the electoral process.

How would such a system work? First, allow each individual to spend up to $1,000 during an election. Second, allow individuals to pool a small part of their funds, say $10, through organizations (non-profit groups, corporations and unions etc.).

However, before such organizations could spend any money, they would have to demonstrate that they have support from their members for spending funds in a particular way (e.g. to attempt to defeat a particular candidate or party, or to promote a specific stand on an issue). In addition, each third party's spending would be limited to an amount consistent with the limit on what official parties and candidates may spend.

For example, if an organization with 40,000 members sent a form to its members asking for support to advocate a position, and 10,000 members returned the form endorsing the position, the organization could spend $100,000 ($10 x 10,000 members) overall, subject to party and candidate spending limits. For companies with shareholders, and unions with members, the system would work the same way.

Democratic systems must ensure equality of access and influence for every citizen. A good place to start is to ensure that the principle of one person, one vote is upheld throughout the political system, including in the area of third-party spending.