While the 2015 federal election campaign officially began in August, the deluge of ads that preceded the election call rightly made Canadians feel that it started long ago. But the political ads on TVs, radios, and billboards along the morning commute didn’t only come from parties. Rather, it was strategic precampaign advertising by interest groups that might have caught voters’ eyes.
Recent pre-writ political advertisements by seemingly well-funded interest groups, like Engage Canada and Conservative Voice, have brought renewed attention to third-party election spending in Canada. Third parties (individuals and groups other than registered candidates and political parties) are able to raise and spend money unencumbered by spending regulations in the lead up to the official election campaign period. They can also remain somewhat anonymous (pre-writ) with no regulation around publicly disclosing their members or donors. This combination of deep pockets and anonymity – dark money as it is sometimes called – has raised questions as to whether Canada’s election policies are equipped for emerging trends in election campaigning.
The role that money should play in elections is a contentious topic. The impact of the US Supreme Court’s 2010 Citizens United decision serves as a cautionary tale about letting corporate interests dominate the campaign-advertising playing field. Spending limits help to ensure that parties can compete on an equal footing and without the appearance of undue influence from moneyed interests. At the same time, spending caps unquestionably place restrictions on political expression, a paramount right in any democracy. The failure to strike the right balance can significantly impact an election campaign.
Finding that balance between the freedom of expression (sometimes uncomfortably associated with the “right” to spend money) and the desire to prevent moneyed interests from drowning out the voices of smaller groups is at the core of the debate – one that frequently breaks down along ideological lines. Whereas the political right (in Canada and elsewhere) shrinks from restrictions on speech and, by extension, spending, the left generally argues that a lack of state-led restraint around spending will prevent substantive equality. Reconciling these views at their extremes is near impossible. Therefore it’s not surprising that this debate was ultimately left to Canada’s courts to adjudicate, as recently as 2004, when past-president of the National Citizen’s Coalition Stephen Harper led a losing legal battle to strike down third-party spending caps.
Today, Canada’s election policy has come out firmly on the side of equality of participation (thanks in part to that same Stephen Harper). In practice, this means that individual donors are heavily restricted in how much they can give to political parties, and political parties are limited in how much they can spend during the actual campaign period. Since 2006 participation by corporations and unions has been particularly limited, as the two groups are now banned from making party donations. Currently, registering as a third party is the only legal channel these groups have for participating in election campaigning, yet it’s not one that is used frequently. While Canada’s main political parties have generally spent to their limits, third parties have been notable for how little they spend, with only a handful coming close to the spending cap since 2004.
But the 2015 election campaign appears to be different. Between the pro-Conservative HarperPAC (shut down in June), the anti-union Working Canadians, and the union-backed Engage Canada, third parties have (intentionally or not) been fighting the parties’ fights in a manner that overcomes campaign finance laws, which forbid such groups from donating to parties directly. That third parties have seemingly used the pre-writ period for strategic spending in this current election, then, is a striking development.
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The extended election campaign figures into this equation as well. When the writ was dropped on August 3, the campaign finance rules for third parties went from open cheque books to a spending limit of about $434,000 (the standard $208,500 plus an adjustment for the length of the 78 day campaign). This is less than 1 percent of what a federal party running a full slate of candidates will be able to spend over the same period.
What should Canadians make of the recent rise of third parties? Given their potential to provide a voice to issues that might be either ignored or misrepresented by political parties, third parties are by no means a self-evident threat to Canadian democracy. However, in an era of permanent campaigning, governments should think carefully about the implications of allowing third parties (or any party for that matter) to spend money anonymously outside the campaign.
One option may be to adopt aspects of the policy framework of the United Kingdom (which, in its redesign of third-party spending policy in 2000, borrowed from Canada). In the Political Parties, Elections and Referendums Act, Tony Blair’s Labour government introduced a third-party spending cap for the entirety of the legislated campaign – a period that begins long before the official writ has been dropped, thereby discouraging the type of strategic pre-writ spending that Canada has just seen.
There is also value in considering not just third-party spending, but the entire campaign-spending framework. Canada’s system places political parties in the centre of campaign activities and third parties at the fringes. Consequently, the rules for political parties and third parties vary considerably in terms of whose donations they can accept and how and where they spend money during the campaign. In re-examining the framework, these two groups should be looked at carefully on their own terms, but also in the way their spending choices might interact with one other. Ostensibly, Elections Canada already has a motivation to revise the approach to campaign advertising, given the increasing role of online and social media campaigning and the inability to regulate elements that are difficult to monetize.
The conversation around third-party spending is currently happening not only in Ottawa, but also in the provincial governments of Alberta and Ontario as well as in the city of Toronto. After aggressive spending by trade unions and interest groups (more aggressive than third-party spending at the national level), third-party attempts to sway the outcome of lower-order elections are also being placed under careful scrutiny. It’s a conversation that’s in its infancy, but one that needs to continue at all levels of government after ballots are cast on October 19.