Putting a lid on special interest political ads

Without third-party election spending limits, democracy is up for sale

By Aaron Freeman

  This week, when the Supreme Court of Canada sits down to consider the issue of third-party spending limits during elections, the country's top judges will have an opportunity to firmly establish the right of all Canadians to have elections in which special-interest money does not dominate the debate.
  Third-party spending - money spent by corporations, unions and other organizations during an election to support or oppose a candidate or party - is increasingly being used as a way to influence the vote.
  Canadian elections law keeps the cost of running for office somewhat reasonable by requiring candidates and parties to adhere to spending limits. But these limits can be rendered meaningless if the message of a party or candidate can simply be delivered through a third party.
  This is commonly seen in "attack ads," such as the advertising blitz sponsored by the National Citizens Coalition (NCC) that targeted 12 incumbent MPs in the last federal election. Several groups, including anti-gun control, anti-abortion and environmental organizations, have announced their intention to advertise heavily during this election.
  At a time when many Canadians feel that no party represents their points of view, people should have the right to express their political views during an election. But when expression is boosted by big money, it can tilt the political agenda in favour of wealthy special interests, drowning out democratic debate.
  This was vividly illustrated in the 1988 federal election, in which business groups spent an estimated $13 million on a barrage of advertising in support of the free trade deal, while their opponents spent roughly $1 million. Given that the free trade deal was the key issue of the 1988 election, and only one political party favoured the deal, the pro-trade spending was clearly partisan.
  Because of the ability of third-party spending to dominate political debate, earlier this year the Liberals required disclosure of the names of all those who spend more than $500 on election advertising, and they placed a limit of $150,000 on what each third party can spend during an election. For local riding advertising campaigns, the limit is $5,000. While there are some flaws with the law - notably the "anti-pooling" provision that prevents people from combining their resources to spend over the limits - these restrictions are reasonable.
  The NCC argues the limits constitute a "gag law" that infringes freedom of speech. The group has succeeded in striking down previous restrictions in the Alberta courts, and has now obtained an injunction that will set the federal limits aside during this election, unless the Supreme Court intervenes.
  The "gag law" label is a complete distortion of the purpose and nature of third-party spending limits.
  First, the federal law focuses exclusively on paid advertising. It does not limit in any way the ability of organizations to hold press conferences, communicate with their members through mail-outs or newsletters, or shout their message from the rooftops if they wish. The only thing it limits is the impact of high-priced election advertising.
  Second, the limit is set quite high. Each third party can spend $150,000 to advertise its opinion. When the NCC talks about freedom of speech, they are talking only about those who can throw around more than $150,000 to advertise their political views.
  The Supreme Court has spoken only once on this issue. In the 1997 case Libman v. Quebec, a unanimous Supreme Court stated that limits on third parties are essential, and must be lower than those on official candidates, since "it is the candidates and political parties that are running for election ... Otherwise, owing to their numbers, the impact of such spending on one of the candidates or political parties to the detriment of the others could be disproportionate."
  The judges wrote that "such spending limits are necessary to prevent the most affluent from monopolizing election discourse."
  The NCC is hoping the judges will overlook these strong statements - at least for the purposes of upholding the injunction - because the subject matter of the Libman case was a provincial referendum law. However, the Court in the Libman case said that its analysis would also apply to a federal election law, and stated that even a $1,000 limit on third parties would be constitutionally valid.
  Hopefully, the Court will again apply these principles when considering the injunction, recognizing that the principle of "one person, one vote" cannot be maintained when wealthy special interests are allowed to use their money to skew the democratic process.

Aaron Freeman is an Ottawa-based writer and a columnist with the Hill Times, Canada's parliamentary newspaper. He can be reached at freeman@essential.org

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