First of all, apologies to Policy Options readers for my long silence. Shameless self-promotion may not be the ideal way to break it, but here it is. I wanted to discuss, briefly, an article of mine recently published in the McGill Law Journal, “Third Parties” and Democracy 2.0.

“Third parties,” in the parlance of electoral law, are all those who may wish to speak out on issues relevant to an election, except political parties and candidates. It is, therefore, a broad category, encompassing corporations, labour unions, NGOs, social movements and, last but not least, individual citizens.¬†At the federal level (on which my paper focuses) and in some provinces, the amount of money third parties are allowed to spend on advertising during an election campaign is sharply limited. The federal limit¬†will be set at just over 200 000$ for this year’s election (assuming a normal campaign duration of 37 days). As the dissenters in the Supreme Court’s leading case on the subject pointed out, this limit is well below¬†what it costs to communicate effectively with a national audience through media such as newspapers, radio, or television.

The raison d’√™tre of these limits is double. First, along with various limits on contributions to and expenses by the parties and candidates¬†they limit the role of money in politics. Second, because political parties are allowed to spend substantially more than third parties, these limits help ensure that political parties and their candidates remain at the centre of election campaigns. Any voices other than theirs are muffled if not muted.

However, this regulatory scheme, first conceived in the early 1970s, rests on two assumptions which, my article argues, are now obsolete. The first such assumption is that political parties deserve a privileged position in pre-electoral debate because they compete with each other on the basis of their ideas and platforms. The second is that it is necessary to spend money in order to communicate one’s ideas to any substantial number of people, and that therefore limiting third parties’ spending also limits¬†their ability to intervene in an election campaign.

The first of these assumptions is wrong because, as I demonstrate in the article on the basis of a theoretical framework developed by Bernard Manin in his work on The Principles of Representative Government and of a collection of in-depth studies of various aspects of the last federal election campaign, Canadian political parties are not really interested in campaigning on their policy proposals. Because of the complexity and the rapidly-changing nature of the policy environment in which they will operate if elected, politicians are reluctant to commit to specific proposals. Instead of making such proposals and debating those of their opponents, political parties focus on exploiting short-term cleavages in the electorate and, especially, the qualities, real or perceived, of their leaders.

The second assumption behind the laws regulating third party participation in election campaigns ‚ÄĚ‚ÄĘ that according to which limiting their expenses effectively curtails their ability to participate¬†‚ÄĚ‚ÄĘ is false because of what I call the separation of spending and speech that is a protect of the technologies and business models of Web 2.0. Social media and other platforms (such as YouTube or blogging services) make it possible to communicate with large numbers of people without paying for the communication. To be sure, Web 2.0 has not yet replaced traditional media is the main purveyor of political information and commentary for most people. But these are still early days.

The combined result of these changes is somewhat paradoxical. On the one hand,¬†excluding third parties from the debates happening during an election campaign is all the more pernicious now that they are one of the very few forces that may yet compel politicians to engage substantive issues, and that increasing numbers of people chose to become involved in public affairs through¬†various “civil society” groups¬†rather than as members of political parties. On the other, now that spending limits are not an insuperable barrier to the participation of third parties, preserving them as protection against the corrupting effects of money in politics is less harmful than it used to be.

My recommendations are accordingly quite limited. I suggest that the limits on third party spending be raised somewhat, to allow them to make their voice heard through traditional media. I also believe that it is important that legislation regarding their participation not be more restrictive with respect to online communications than it is with respect to those using more conventional platforms. Beyond that, however, the most important thing is actually to avoid change ‚ÄĚ‚ÄĘ to avoid, that is, an imposition of additional limits on third party participation in election campaigns, intended to restore the political parties’ primacy by restriction third parties’ online communications.

In order to understand why attempts to do so would be ill-advised (not to mention likely unenforceable and possibly unconstitutional), we must keep be mindful of the political and technological changes of the last forty years. I hope that my article helps draw attention to these changes, which are not yet much discussed, even if their effects are strongly felt, in Canada.

NOTE: I have posted more detailed overviews over at my own blog, Double Aspect. That of the part on political changes is here; that of the part on technological changes and the separation of spending and speech is here; and that of my reform and non-reform proposals is here.

Leonid Sirota
Leonid Sirota teaches constitutional law at the Auckland University of Technology Law School. He is a graduate of the Faculty of Law, McGill University and the New York University School of Law. His main interests are Canadian constitutional law, other areas of public law and legal theory.

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