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October 9, 2000
Protecting voters from democracyGeorge Koch
The court challenge that began in Calgary last week to a law to restrict spending by independent groups during federal election campaigns is nominally about free speech. Equally important, the challenger is fighting a creeping campaign by the federal Liberals and their acolytes in the bureaucracy and academe to cartelize federal elections.
Bill C-2, the new Canada Elections Act, prohibits anyone other than registered political parties and one other favoured group -- the media -- from spending more than $150,000 during a campaign to promote or criticize a party or candidate or any cause linked to a party or candidate. It imposes huge fines and jail terms on violators, plus onerous registration and disclosure requirements on those planning to spend legal amounts.
Since the early '80s, three laws very much like Bill C-2 have been struck down, thanks to challenges mounted by the National Citizens Coalition (NCC). Trial and appeals courts have agreed these "gag laws" violate the Charter of Rights and Freedoms in ways that cannot be justified in a free and democratic society.
In this trial, again instigated by the NCC, the government's key witnesses are still to come. But so far, things aren't going too well. Fred Fletcher, a political scientist from York University, testified independent groups could mount reasonable advertising campaigns within Bill C-2's limits. Under cross examination, he admitted you couldn't do anything "significant" with less than $1-million.
No kidding -- $150,000 is virtually nothing in the world of advertising. A full page in a big-city newspaper costs $5,000 or more; national papers like this one charge perhaps $20,000. Network TV air time is prohibitive. Even a sustained campaign on local private radio would quickly drain $150,000. Put another way, Bill C-2's limit would be breached if every Albertan contributed even a nickel to a given cause.
Under this law, Air Canada, say, can spend any amount of money between elections to extol the great benefits of its monopoly. But Westjet, or a consumers' group, could not assemble a coherent media buy during an election campaign to call for open competition.
The government's lawyers do not deny Bill C-2 violates at least one Charter right. They argue this is justifiable because it is aimed at preventing a serious harm: The manipulation of elections. Demonstrating a harm is important, because courts require a compelling public purpose to rationalize setting aside Charter rights.
The only problem is, there is no evidence. If independent campaign spending undermined the integrity of the electoral process, we should have noticed by now. In the most recent challenge, to B.C.'s gag law, the court castigated the province's lawyers for relying on hypotheses and predictions.
Filip Palda, an economist at the University of Quebec, election finance specialist and the NCC's expert, argues that none of the government side's experts demonstrate in their submissions that independent election spending causes harm. They merely assert it, based on their "intuition."
Government experts such as Peter Aucoin, a political scientist at Dalhousie University, substitute a series of rhetorical tricks for facts, evidence or a real-world example. They equate the amount of independent campaign spending with effects on people's voting intentions. They brand these (unsubstantiated) effects "undue influence," and equate them with harms such as "corruption."
What's frightening is that we're having this debate at all. The government and its experts argue Bill C-2 is about "equality" and "fairness" and that most annoying of clichés, a "level playing field."
Their underlying logic, however, is that if anyone outside the political parties sways any voter's opinion, and that a person or group spent money to get the message out, the election is unfair, unequal or unlevel. By that reasoning, non-party participation is acceptable only so long as it's demonstrably ineffective.
At best, that's hugely condescending, implying Canadian voters are too obtuse to separate propaganda from reason. Worse, it suggests the gag law's proponents believe only the established political parties should be allowed to influence people's judgment. In other words, an electoral cartel.
The gag law's spending restrictions contain one other huge exception: news and opinions generated by the news media. There's obvious self-interest behind admitting them into the cartel. But it may be a serious error, for it strengthens the NCC's argument that if there's inequality during the next election, it'll be caused by the gag law, not the age-old freedoms it restricted.
Ultimately, the gag law challenge is about two irreconcilable views of democracy. Under one, elections are intellectual free-for-alls in which all society's individuals and associations can compete for voters' attention and agreement, resulting in a winner bearing a message about what kind of government the people want. Society shapes the state.
Under the other, elections are carefully controlled events, in which established parties put forward what they consider appropriate alternatives within narrow parameters they set, and voters choose from among them, using information supplied mainly by the contestants. The state shapes society. Judging by Bill C-2, that is the model favoured by the Liberal government, a number of prominent academics and, remarkably, the chief electoral officer.
Those aren't two visions of democracy at all, but one of democracy and another of oligarchy and incipient tyranny.
As Eric Groody, one of the NCC's lawyers, said in a previous gag law trial, what the government really appears to fear is that people will "vote the wrong way."
George Koch is a Calgary writer.
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