More about Election Law

There are two things to mention today, both related to election law, and more specifically to restrictions on “third-party” speech in the pre-electoral context.

First, Radio-Canada reports that Québec’s Chief Electoral Officer has been in touch with the leaders of the student organizations who are protesting the tuition fee hikes announced by the provincial government. The protesters are angry at Premier Jean Charest and the Québec Liberal Party and have made no secret of their desire to help defeat them when the next election is called – there was speculation that it might happen this spring, but the fall now seems more likely. Well, as I have argued in an op-ed that Cyberpresse published in mid-April, the expenses the protesters will incur during an eventual election campaign will be covered – and severely limited, indeed almost to the point of being prohibited – by the draconian third-party spending provisions of Québec’s Election Act. Radio-Canada quotes the Chief Electoral Officer’s spokesperson as saying that the “objective was not to prevent [the protesters] from expressing themselves. The goal was to make sure that they comply with the law.” The trouble is, the effect of the law will be to prevent the protesters from expressing their views. As I said here already, Québec’s law was intended to prevent the rich from capturing the democratic process, but operates to silence not only the rich, but also those who are not well-off, while shielding the incumbent politicians from criticism by political outsiders.

And second, NYU’s Richard A. Epstein has an interesting (albeit asininely entitled) essay responding to Jeffrey Toobin’s story of the U.S. Supreme Court’s Citizens United decision. As before,  I will avoid discussing the merits of the Citizens United decision itself (though I find prof. Epstein’s essay well-argued, as I did a lecture he gave at NYU in September 2010; at least, a good criticism of Citizens United would need to address the points prof. Epstein makes). I want to mention, however, that prof. Epstein is skeptical of the distinction that Mr. Toobin sought to make between “electioneering” by means of TV advertisements and books. He writes that

Toobin … fights against modern technology when he seeks to draw a hard and fast line between “the pervasive influence of television advertising on electoral politics” and books that operate “in a completely different way,” given that individuals have to make an “affirmative choice to acquire and read a book.”

Oh? Thanks to the internet, books can be excerpted and transmitted in a thousand different ways online to consumers who need only a single click to ignore messages they don’t like. Given the vast reduction in cost in the production of information, it seems positively odd to ban, or even regulate, one form of dissemination while allowing other forms to survive unregulated.

His conclusion, of course, is not that we should censor books, but that we should not restrict other forms of “electioneering” either. That’s pretty much what I argued in my previous post on this topic. The distinction between books and TV ads is not obvious, and indeed probably not tenable. Canadian election legislation makes it, exempting (some) books from its application, but it is not a principled distinction. The principle underlying our law would in fact allow censorship of books (indeed it already allows censorship of some books, as I explained), and that suggests that this principle is misguided.

UPDATE: The Globe also has a story about the Chief Electoral Officer’s warning to student organizations. It emphasizes limits on individual contributions to electoral campaigns, but I think this emphasis is misplaced. The real problem is not with contribution limits, but with those on third-party spending.

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