Rights and Votes, Again

The Irish referendum on same-sex marriage has brought a common trope back into the public discourse: rights should not be subject to voting. There are actually a number of distinct claims that can be advanced under this heading, although they are often run together, as for instance in this piece by Saeed Kamal Dehghan in the Guardian. These claims range from plausible (although far from certain) to outright silly.

The plausible version of the rights-should-not-be-subject-to-voting position is the claim that rights should not be subject to voting in a referendum. (Perhaps this is the view that Mr. Dehghan really wants to say in his article, although, as I will explain, this is very clear.) A referendum campaign may indeed be a poor way of debating about rights. The ignorance of much of the electorate ― which of course goes hand in hand with the prevalence of stereotypes, usually unflattering ones, about minorities ― may make it unfit to decide important, even assuming that it is fit to choose representatives who eventually decide such issues. I have some sympathy for this view; I certainly have no desire to live in a direct, rather than a representative, democracy.

That said, even the claim that issues of rights should not settled by popular vote is both under- and over-inclusive. It is under-inclusive because all sorts of other issues should not be settled by popular vote either, for very similar reasons. I would not want income tax rates set in a referendum, for instance. If anything, rights issues may be simpler, and thus more amenable to resolution by way of referendum, than some policy matters. On the other hand, there seems to be something like an international consensus that secession of political communities is a matter that must be settled by referendum, and secession, as the Supreme Court of Canada has rightly pointed out, necessarily has an impact on minority rights. In short, the issue of whether a given topic can be resolved by referendum, and why, is not an easy one, and we must be wary of rushing to conclusions based on nothing more than hunches.

A stronger version of the rights-should-not-be-subject-to-voting position holds that rights should not be subject to any sort of democratic vote, including that of a legislature. Thus Mr. Dehghan quotes Ayn Rand’s assertion that “individual rights are not subject to a public vote; a majority has no right to vote away the rights of a minority.” This claim, in my view, is quite clearly wrong. Legislation enacted in the normal course of governance will often affect rights. Must every bill that could conceivably affect someone’s rights be stopped in its tracks so that a court can rule ― in the abstract, without knowing how the bill would be applied in real life ― on the rights issues it raises? France actually has something like that system, but of course even there, it takes a group of (democratically elected) politicians to refer a bill to the Conseil constitutionnel. (A few years, France has authorized the Conseil constitutionnel to also rule on the constitutionality of a statute after its enactment, on reference by a court.)

Now it is certainly possible to argue that courts, rather than legislatures, should have the last word on issues of rights. But the last word isn’t the same thing as exclusive competence. Legislatures can debate and vote on rights ― as they have long done ― and the courts should be available as a last resort, to respond to legislative abuse or inaction. We should not forget that legislatures have done much for rights. In much of the world, including in Canada, it was legislatures that, for instance, created (almost) universal suffrage, decriminalized homosexuality, or abolished the death penalty. All of this involved individual rights being subject to public votes. Were those votes somehow wrong?

And then, there is the paradox that ought really to be embarrassing to the defenders of the claim that rights should not be subject to democratic votes. Judicial review, which they presumably think the proper mechanism for settling issues of rights, is normally itself a creature of a democratic constitution-making process. The rights which it enforces may (or may not) be natural rights, but they are still recognized, expressly or by implication, in constitutional texts enacted through some sort of democratic process.

The strongest version of the rights-should-not-be-subject-to-voting position is the contention that rights should not be subject to any sort of vote at all. I’m not sure whether anybody seriously thinks that, although Mr. Dehghan concludes his article by endorsing Rachel Maddow’s insistence that “[h]ere’s the thing about rights – they’re not actually supposed to be voted on.” There is no qualification here about who isn’t supposed to vote on rights. On its face, this statement applies to judges as well as to voters and legislators. Yet if it really means what it says, this claim is not just wrong, but actually silly. If people are to live together, issues of rights need to be settled somehow. Negotiation is unlikely to be of much assistance, because there are too many individuals affected. Realistically, there are only two options: legislation, or adjudication. And, as Jeremy Waldron points out in a recent essay which I discussed earlier this week, the latter mechanism, no less than the former, ultimately relies on voting.

The dirty little secret of judicial review ― not much of a secret, really, but something that we try not to think about unless prof. Waldron forces us to ― is that it sometimes leaves issues of rights to be settled by a single person’s vote. That person wears an impressive-looking robe to work, but he or she is still only a human being, and not necessarily a human being of superior wisdom or virtue. The idea of the right of Irish gays and lesbians to marry being dependent on the vote of a popular majority may be unsettling. But is the idea of that right of their American fellows being dependent on the vote of a single 78 year-old man of no discernible towering intellectual abilities ought to be unsettling too.

Here’s the thing about rights ― we disagree about them, as about everything else, more or less. It may be that rights are the inalienable endowments bestowed on us by our Creator. But even if that is so, He has not left us a very clear description of just what it is that He gave us. We have to figure it out for ourselves ― and not just individually, but collectively too. Unfortunately, our ability to figure things out is pretty limited. We set up procedures that are supposed to help us do it, but none of these is fail-safe or fool-proof. As unsettling as they may be, they may also be the best we can do, at least at this point in our history.

Let’s Hear It

I’ve mentioned Aniz Alani’s challenge to the constitutionality of the Prime Minister’s apparent and admitted policy of not making any Senate appointments. The federal government moved to strike Mr. Alani’s application for judicial review, arguing that it had no chance of success, and also that the Federal Court had no jurisdiction to hear it. Yesterday, that Court’s Justice Harrington rejected the motion to strike, thus allowing the application to proceed to a hearing on the merits. It is important to keep in mind that this is not a decision on the substance of any of the multiple issues Mr. Alani’s application raises. Indeed, Justice Harrington is very careful to make it clear, throughout his reasons, that these issues are very much open. Still, these reasons might give us some indications of what the eventual merits ruling could look like.

The issues presented by this case can be sorted in four categories. Logically the first is the question of whether the constitutionality of senatorial non-appointments is justiciable at all. Then there is the procedural question of whether Mr. Alani’s application to the Federal Court is the right way to raise it. Justice Harrington most consider a variety of sub-questions that grouped under these two headings, dealing with procedure first and with justiciability second.

What I have in the preceding paragraph called the procedural question is actually mostly one of jurisdiction. Justice Harrington briefly considers the matter of Mr. Alani’s standing, but does not really go beyond “grant[ing] him standing on a public interest basis to oppose the motion to have his application struck.” [11]

His comments on the question of whether there is a “decision” not to appoint Senators which the Federal Court could review. If there is no decision, Justice Harrington suggests when considering some amendments Mr. Alani proposed making to his application, then the application becomes a pure “reference” on a point of law, which the Federal Courts Act does not authorize an individual to pursue. The Federal Court would, in other words, be without jurisdiction to entertain a challenge not focused on a “decision.” For the purposes of a motion to strike, Justice Harrington is prepared to assume that a “decision” has been made, but he seems somewhat skeptical. This is likely to be a problem for Mr. Alani going forward, as I had already suggested here.

The other jurisdictional question Justice Harrington addresses is also one I had pointed at. Even assuming that the Prime Minister has made a “decision,” within the meaning of the Federal Court Act, not to advise the Governor General to appoint Senators, does this decision fall within the scope of the Federal Court’s review powers? More precisely, the government contended that decisions regarding advice do not fall within the scope of Crown prerogative, and are thus nonrenewable. Justice Harrington does not decide this point, but rather says that there is enough doubt about it to leave it open to a hearing on the merits. (It is worth noting, though, that he does not once mention the concept of “constitutional architecture,” which in my view is Mr. Alani’s best hope of bringing the issue of the Prime Minister’s advice within the legal, as opposed to the purely conventional, realm.)

As for the justiciability issues involved in Mr. Alani’s challenge, they all have to do with the role of constitutional conventions in the appointment of Senators. All agree that there is a convention pursuant to which Senators are appointed by the Governor General on the Prime Minister’s advice. The government has argued that, as conventions are not legal rules or legally enforceable, the whole matter non-justiciable. Justice Harrington suggests that this is not so. He notes that the government has not argued that a convention governs “the timing of the Prime Minister’s recommendations” to the Governor General, and adds that

[c]ertainly, at some stage, senators have to be appointed. If there were to be no quorum, (the quorum being fifteen), Parliament could not function as it is composed of both the House of Commons and the Senate. [17]

Justice Harrington goes on to say that courts can determine whether a convention exists, and that if the government wants to rely on one, it will not only have to establish its existence, but possibly also show that any convention it relies on does not “flaunt[]” the requirements of the Constitution Act, 1867, “that Senate vacancies be filled” “promptly” [18] ― though the existence of such a requirement is also left to be established (presumably by Mr. Alani) at the merits stage of the application. Finally, Justice Harrington suggests that, contrary to the government’s contention, the court could make a declaration even if doing so has the effect of making the government follow a convention.

It is good, I think, that Mr. Alani’s challenge will be considered on the merits. It underlying premise, that the timely appointment of Senators to fill vacancies is a constitutional requirement pursuant to s. 32 of the Constitution Act, 1867, seems to me obviously correct, and since the Prime Minister, as well as one of the men hoping to replace him, are committed (the latter perhaps even more strongly than the former) to disregarding the constitution, it would be good if the courts could call them to order. That said, it is still not clear that the Federal Court is actually authorized to do that. Specifically, it remains to be seen whether the Prime Minster’s course of action can be regarded as a reviewable decision and, if so, whether it is the sort of decision the Federal Court has jurisdiction to review. Courts, unlike Prime Ministers, cannot simply ignore pesky legal rules that might stop them from doing what they think is best.

In Defence of Judicial Majorities

First of all, apologies for my silence of late. Partly, I just couldn’t find anything interesting to write about. Partly, I have been much more diligent about my dissertation-writing, and that hasn’t helped with the blogging. Actually, as I’m trying to finish a draft over the next couple of months, I’ll compensate by occasionally posting on some of the topics I write about, hoping they may be of at least some interest to my readers. Here goes.

* * *

In a paper published last year, Jeremy Waldron asks: “why do bare majorities rule on courts?” Why is it that five judges prevail over four, for instance? The question, he points out, hasn’t been asked much, and indeed people tend simply to assume that majority voting among judges is somehow natural. It’s not, says prof. Waldron. In political theory, people are often asking why a majority of votes (whether among the electorate or among legislators) prevails over the minority. And we know of other decision-making procedures used by courts, too. A couple of States in the U.S. require supermajorities of their Supreme Courts to declare a statute unconstitutional, while civil law courts (such as the French Cour de cassation) ostensibly require their judges to be unanimous, although it seems clear enough that, behind the scenes, their judges do not necessarily reach unanimous agreement on every case, and vote when they do not. So what accounts for the common law courts’ normally using simple majority decision? Prof. Waldron examines four possible explanations, and finds all wanting.

The first is simply that allowing a simple majority to prevail is a relatively efficient way of settling disputes. That is true, says prof. Waldron, but it is not enough for a decision procedure to be efficient. After all, nobody would accept deciding cases by tossing a coin, which is even more efficient than a majority vote. This would not, prof. Waldron insists, be a legitimate decision procedure, no matter how efficient it is. Legitimacy requires “fairness” and “responsiveness” to the merits of the case the court is considering.

The second argument prof. Waldron examines addresses this concern about responsiveness to the merits. It is the claim, based on Condorcet’s jury theorem, that the majority of a panel is more likely to be right than the minority (and indeed that, as we progress in the court hierarchy and move towards larger panels, the likelihood of the majority’s being right increases). Prof. Waldron, however, is unpersuaded that the claim holds up not only for overwhelming majorities (an 8-to-1 vote, say), but also for “bare” ones ― notably, for 5-4 votes. Must we really believe that five judges are more likely to be right than four? Condorcet’s theorem says so, but “[t]here is something gimmicky about [this result],” says prof. Waldron; the theorem “is just arithmetic” and “has nothing to do with objective truth or right answers” (1716; emphasis in the original). Prof. Waldron’s concern seems to be that we cannot really know whether judges, although they are supposed to be experts, are more likely than not to get at a right answer, which is the necessary condition for the Condorcet theorem to work. Prof. Waldron points out that in politically charged matters, people tend to ascribe rather abysmal levels of expertise to the judges with whom they disagree, so that the theorem cannot make these judges’ decisions legitimate to them.

The third argument prof. Waldron considers addresses the demand that the decision procedure courts use be fair. In his view, it is not clear that elements of fairness that are often thought to justify majority decision-making in democratic contexts ― its neutrality as between the options presented, and its giving an equal weight to all the voters ― apply to judicial decision-making. Perhaps we shouldn’t want judicial decision-making to be neutral ― witness the supermajority requirements to invalidate legislation referred to earlier. And it’s not so clear that the votes of different judges are entitled to an equal weight, as the votes of different citizens are. Why aren’t more experienced judges entitled to more voting power, for instance? We seem to have just stipulated that the judges’ votes should be treated equally, and that stipulation, prof. Waldron suggests, is a weak argument for demanding that those on the losing side of close judicial votes put up with them.

Finally, prof. Waldron briefly examines a hybrid argument, according to which the judges’ equality suggests that the majority is more likely than the minority to be right. The judges of a court are equal, on this account, because they are all experts and all represent the law in the same way. But here again, prof. Waldron is skeptical “about the significance of a very narrow majority among Justices, to each of whom we have reason to defer.” (1725)

Prof. Waldron stresses that the point of his questioning is not “to embarrass defenders of judicial review” (1727) by calling into question the legitimacy of courts. On the contrary, he says,

[t]he fact that courts address matters of principle by voting tells us that there is nothing inherently inappropriate about these issues being decided in institutional contexts that are more notorious for their majoritarianism. (1727)

Voting is not something to be embarrassed about. It should be acknowledged, and integrated into our thinking about trying to resolve disagreements.

* * *

I am not persuaded that the weaknesses that prof. Waldron sees in the arguments in favour of majoritarian decision-making by courts as serious as he suggests they are. His reasoning, it seems to me, is somewhat distorted by a focus on constitutional adjudication. The legal dispute that prof. Waldron seems to have in mind throughout his essay is a challenge, probably a rights-based challenge, to the constitutionality of a statute. But cases of this sort are, of course, a small minority, and they have some unusual features that distinguish them from much of the universe of justiciable disputes. Even if he is right that majority decision is a problematic mechanism for resolving constitutional controversies ― and, while his challenge is at its strongest there, I am not persuaded that he is ― it would not necessarily follow that it is similarly problematic for adjudication in general.

Now, I agree with prof. Waldron that efficiency alone does not justify the use of majority decision (or of any other decision-making formula) by courts. However, it is important be aware of the stakes here. Achieving super-majority consensus (or, a fortiori, unanimity) can be difficult. As I explained here, the price to pay may consist of opinions that are either extremely narrow or very vague and, either way, fail to adequately guide litigants and judges in future cases. And it may of course be impossible for judges to achieve the requisite degree of consensus even on those terms. This might not be a fatal problem for an intermediate appellate court, where the case could be remitted to a different panel, much like a case left unresolved by a hung jury is then adjudicated by a different one. But there is no s such solution (simple, but still quite costly for the parties!) available to a court of last resort where all the members hear every case. The only way for such a court is simply to silence the dissenters and hypocritically pretend that they do not exist, like the civilian courts may be doing.

This efficiency issue is directly connected to one of fairness. In the constitutional cases which Waldron seems mostly to have in mind, neutrality as between the possible outcomes might not be obviously necessary. There is at least an argument to be made that there is nothing wrong with the proposition that the impugned statute, being democratically enacted by a legislature, ought to stand unless its unconstitutionality can be demonstrated to the satisfaction of a super-majority of judges. (Actually, this argument might only make sense in the case of rights-based constitutional challenges. It is much less obvious why there ought to be a preference in favour of legislation enacted by one or the other democratically elected legislature in federalism-based disputes, or in favour of one or another democratically elected branch of government in separation of powers controversies.) But it is not at all clear why there ought to be an in-built preference for a given outcome in, say, ordinary civil litigation.

Prof. Waldron’s approach to fairness seems to more or less ignore the parties to the dispute which the court is asked to resolve. Perhaps we can question the equal authority or the “political equality” of that court’s judges. Prof. Waldron is surely right that this equality is a matter of stipulation. But what about the citizens who come before the court? Again, prof. Waldron may argue that a citizen is not the equal of a government that acts in the public interest ― though that proposition would be very controversial. But surely there is no reason to question the equality of the parties in ordinary private law disputes by telling one of them that he or she can only win by persuading a super-majority of the judges, while conversely the opponent need only persuade a blocking minority.

Focusing too much on constitutional cases may also be affecting prof. Waldron’s take on the issue of expertise. It way well be that the expertise of judges, and thus their ability to get the right answer in more than half the cases, required by the Condorcet theorem, is questionable when it comes to fundamental issues of rights. (I should note, though, that other strands in prof. Waldron’s work might seem to commit him to resist this claim. What I have in mind is his defence of a global judicial consensus on such issues as ius gentium. As my friend Maxime St-Hilaire suggests in a very interesting recent paper, it seems logical to suppose that judges should be experts in that.) However, must we push the cynicism about judges to other realms, including those in which they have long been developing the law, such as contract and tort? And if judges are really that incompetent, then their use of majority voting is really the least of our problems. We should probably put the courts out of business altogether, and certainly to put them out of the business of developing the law, at least until we are able to re-educate the judges to a minimal standard of competence. Indeed, this is exactly what prof. Waldron advocates doing with issues of rights. But I’m not sure that he is prepared to expand this approach much beyond the realm of constitutional law.

None of that might provide a very convincing answer to the person who disagrees with a five-to-four judicial decision. As an empirical matter, prof. Waldron is obviously right that such people will often not trust the competence of judges who rejected their claims. For that matter, they might not trust the competence of judges in near unanimous decisions either. I, for one, do not trust the competence of the judges of the Supreme Court of Canada when it comes to basic economics, even though they are in overwhelming agreement on the matter.

But surely the fact that the losers might not accept the legitimacy of a decision procedure isn’t enough to conclude that it really is illegitimate. Prof. Waldron himself has little sympathy for those who reject the legitimacy of the decisions of bare majorities of legislatures and argue that such decisions cannot override their natural, or constitutional, rights. He is content to tell them that majority decision is the best we can do in politics, and to admonish them that “the imposition of the disadvantage on the minority by a majority decision is not necessarily tyrannical.” (1728) I’m not sure why something like that could not be said about a judicial decision. (Indeed, prof. Waldron does apply this reasoning to judicial decisions ― but he only addresses it to the dissenting judges.)

It thus seems to me that, at least when it comes to ordinary litigation, there very good reasons ― mostly fairness considerations, but perhaps also those of expertise ― to have courts decide cases by simple majority vote. These reasons may or may not be applicable in constitutional litigation, or at least in rights-based constitutional litigation. Prof. Waldron does, I think, show that we need to make the argument for the proposition that they are. Contrary, perhaps, to his intention, his essay thus adds an important element to his challenge to the legitimacy of judicial review of legislation; it does not, however, in my view, succeed at calling into question the legitimacy of the courts’ more conventional adjudication practices.

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.

The Party’s Over

This is the second post in the series about my most recent article, “‘Third Parties’ and Democracy 2.0″, (2015) 60:2 McGill LJ 253. 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. Today, I want to discuss the changes, in the last 45 years or so, to the respective roles of political parties and “third parties” in political debates. To me, this is probably the most important part of the article, even though it is not directly about election law, or any sort of law, at all. While it is obviously key to my argument about the regulation of elections, I would like to think that it is a contribution in its own right, because it should help us understand the way Canadian politics actually work.

Our electoral regulations, as well as the Supreme Court’s jurisprudence in this area, are based on the idea that political parties are the normal, the central mode of citizen participation in politics. The political process, as theorized, for instance, by John Rawls, is a competition between political parties, which tend to represented various social and economic classes and interests. Much ― though certainly not all ― of the worrying about “money in politics” has to do with this association between parties and social classes, because political competition cannot be fair if the “moneyed interests” all support just one of the parties. Importantly, however, parties not only contest power, but also compete in the realm of ideas. Their campaigns are based on fairly detailed policy proposals, expressed in manifestos and party programmes. Citizens assess these proposals and vote for those that advance their interests ― in theory, anyway, because political ignorance was no weaker then than it is now, and most people simply voted for “their” party without knowing or caring much about what it stood for. And since parties compete on ideas and policy, those who seek to inject their own ideas by other means are regarded as anomalous.

However, as Bernard Manin explains in his illuminating book on The Principles of Representative Government, while this may have been a decent approximation of what politics actually looked like up until, roughly, 1970, this model does not fit the politics of 2015. Parties may still release detailed platforms, but these are less important to their appeals to the electorate now than they ever have been. From representatives of class interests, political parties have remade themselves into vehicles in the service of leaders. Instead of campaigning for the interests of social groups and classes, what parties do is identify a wedge issue, a social cleavage, no matter how superficial and short-lived, that allows them to position themselves on the “right” side, and move their opponents onto the “wrong” one. In addition to, or better in combination with, this sort of tactical positioning, parties rely on demonstrating the leadership qualities of the person at their helm.

While this may sound terribly cynical, prof. Manin points out that there are compelling reasons for the parties to adopt this approach. One is the rise of electronic media, and especially television, which made it possible for party leaders to communicate directly with voters, and made their personalities the focus of the voters’ attention. The other is the increased complexity and unforeseeability of the environment in which governments operate, which makes would-be governors reluctant to commit to policies which they might then have to abandon in the face of changed circumstances ― and arguably also makes it more rational for voters to judge their would-be leaders on their decision-making skills than on specific policies.

Canadian politics, at the federal level anyway (my paper did not look at the provinces, though I suspect there is little reason to think that things are much different there), fits this analysis. In the article, I rely descriptions of the Conservatives’ and the NDP’s campaigns, and that of the “campaign in the media,” in a collection of essays about the 2011 election, which illustrate these trends marvellously. Television coverage, focusing largely on party leaders’ tours through the country, shown mostly as a series of speeches to cheering supports, was central to the campaign ― as it was to every campaign since the 1970s. Substantive policy issues were mostly absent. The two successful (in different ways, of course) campaigns played up the personalities of their Stephen Harper and Jack Layton, respectively, and their leadership qualities. They also, tellingly, attacked the personalities of their opponents much more than their proposed policies. Admittedly, it is difficult to attack the policies of a politician who is not proposing any. But that’s the point. Policy does not matter.

Now even, beginning in the 1970s, parties were abandoning the field of policy ― they stopped being what Pierre Trudeau claimed he wanted them to be, “supermarkets of ideas” ― other entities came to fill the void. The supermarkets were replaced by variety of boutique suppliers: NGOs, think tanks, unions, and more recently social movements. For many citizens who care about ideas, these means of participating in public life are thus more effective, more meaningful, than membership in a political party. Indeed, these entities may be the only force injecting a debate about ideas, which parties would rather avoid, into politics. Yet come election time, they are treated as “third parties,” and silenced by rules that seek to make political parties the central if not the only participants in pre-electoral debate. Besides, as an empirical matter, rules restricting third-party participation seem to affect unions and social movements (such as students in Québec) much more than corporations (which are typically uninterested in participating in electoral politics), belying the concern about money skewing political competition in favour of the wealthy.

Our electoral rules were conceived for politics where political parties dominated not only competition for power, but also debates about policy. While the parties have kept their former role, they have largely abandoned the latter. Yet the rules, and the thinking of the courts that apply them, have failed to take that change into account. It is perhaps too much to ask, but I hope that my paper helps change that.

“Third Parties” and Democracy 2.0

The McGill Law Journal recently published a paper of mine, “‘Third Parties’ and Democracy 2.0″, (2015) 60:2 McGill LJ 253, about which I haven’t yet had the chance to brag here. Unfortunately, I won’t be able (pursuant to the Journal’s policy) to upload the full text of the paper to SSRN for a while. But I want to talk about it now anyway. I’ll introduce it in this post, and talk about some of its themes in greater detail in subsequent ones.

Here is the abstract:

Although the Supreme Court of Canada has described freedom of political, and especially electoral, debate as the most important aspect of the protection of freedom of expression in Canada, no debate in Canadian society is so regulated as that which takes place during an electoral campaign. Parliament has set up—and the Supreme Court has embraced—an “egalitarian model” of elections, under which the amount of money participants in that debate can spend to make their views heard is strictly limited. “Third parties”―those participants in pre-electoral debate who are neither political parties nor candidates for office―are subject to especially strict expense limits. In addition to limiting the role of money in politics, this regulatory approach was intended to put political parties front and centre at election time.

This article argues that changes since the development of the “egalitarian model” have undermined the assumptions behind it and necessitate its re-examination. On the one hand, since the 1970s, political parties have been increasingly abandoning their role as essential suppliers in the marketplace of ideas to the actors of civil society, such as NGOs, unions, and social movements. On the other hand, over the last few years, the development of new communication technologies and business models associated with “Web 2.0” has allowed those who wish to take part in pre-electoral debate to do so at minimal or no cost. This separation of spending and speech means that the current framework for regulating the pre-electoral participation of third parties is no longer sufficient to maintain political parties’ privileged position in pre-electoral debate. While the current regulatory framework may still have benefits in limiting (the appearance of) corruption that can result from the excessive influence of money on the political process, any attempts to expand it to limit the online participation of third parties must be resisted.

And here is the summary of the paper from the introduction:

I begin, in Part I, by reviewing the Supreme Court’s two major decisions on third-party participation, Libman and Harper. In Part II, I describe in more detail the “egalitarian model of elections … premised on the notion that individuals should have an equal opportunity to participate in the electoral process” without regard to wealth, which the [Canada Elections Act, the] CEA and these decisions embrace. In Part III, I explore the assumptions that the CEA and the Supreme Court make about the nature of the political process and the central role that political parties play in it. Then, in Part IV, I describe the changes that have occurred in politics since the framework for regulating third-party participation embodied in the CEA was first conceived. I illustrate the effects of these changes by using the 2011 federal election as an example and show that the assumptions behind the CEA’s framework are no longer valid. This challenges the privileged position of political parties in pre-electoral debate. In Part V, I focus on another, more recent change that I describe as the separation of spending and speech: the emergence of new technologies and business models, in particular those associated with “Web 2.0”―social networks, blogs, video sharing services, and the like―which make it possible for third parties to communicate with large numbers of voters without spending much, if any, money. Finally, in Part VI, I explore the implications of these changes for regulating third-party participation in pre-electoral debates. I conclude that what might be called “electoral campaigning 2.0” does not, in itself, require radical changes to the current legal framework and only suggest two limited amendments to the CEA. Nevertheless, the changes in politics and technology that I describe are significant. Ignoring them is likely to lead scholars, legislators, or judges to unrealistic, and possibly pernicious, conclusions about the law of Canadian democracy. (257-58; footnotes omitted)

I actually posted my favourite (because somewhat flippant), passage from Part III ― the one describing the assumptions behind our current model of election regulation back when I first wrote it, almost three years ago. It takes the metaphor of the “level playing field,” which is key to the Supreme Court’s election law jurisprudence, and considers what happens on ― and around ― that field. The answer is that, in our system, political parties play on the field of pre-electoral debate, while everyone else is expected merely to look on, though the media, in particular, is allowed to cheer. In upcoming posts, I will discuss in more detail the changes, political (Part IV of the article) and technological (Part V), that should lead us to re-think the old assumptions on which our regulatory framework rests ― and which are also, I think, independently important.