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.