Maybe democracy does work. The opposition to the Fair Elections Act was so widespread, from academics, experts, ordinary people and in the end even MPs and senators within the Conservative Party, that a government that had been intent on using its majority to ram it through Parliament abruptly backed down. Democratic Reform Minister Pierre Poilievre spent weeks aggressively defending his Frankenstein creation, but when we last left our hero, he was holding an 11th-hour press conference, and presenting a hastily redrawn version of his legislation. Most of its worst elements had been removed.
As it hurtles toward becoming a law – it has been passed by the Commons and is expected to be approved by the Conservative majority in the Senate before the end of June – we take one last look at 2014’s worst piece of legislation. Was the Fair Elections Act improved enough to deserve passage?
The original Bill C-23 threatened to do real harm to Canadian democracy, and to undermine public confidence in what is supposed to be a fair and non-partisan electoral system. For example, the bill created a gigantic, Conservative-favouring loophole inside the campaign-spending rules, by saying that the cost of fundraising from previous donors to a party would no longer be considered a campaign expense. Given that the Conservatives have the biggest and deepest pool of donors, this would have entrenched their fundraising advantage, while simultaneously making it easier for all parties to fudge their way around spending limits. But that’s all history now: It’s been written out of the bill.
There was a plan to give the winning party in each riding the power to name that riding’s central poll supervisor, a key electoral official who must be non-partisan and above politics. That’s also been removed from the bill. The same goes for the attempt to muzzle the chief electoral officer.
The government even compromised on its promise to end vouching, the long-standing practice allowing many people without a photo ID containing an updated address to vote. The bill continues to allow the practice, though the government has renamed it and made it considerably more complex and cumbersome. A type of vouching will still be available for people who cannot prove their address – and many Canadians are in that position, from some on-reserve natives, to some residents of nursing homes, to people who have recently moved.
The worst of the Fair Elections Act is no more. It is no longer a dangerously awful piece of legislation. But it is still flawed, albeit in much smaller ways.
Take vouching. Thanks to this bill, there could be far more need for it in the 2015 election than there was in 2011. The Fair Elections Act eliminates the use of voter information cards, which are mailed to electors by Elections Canada, as a way of proving your address. Several hundred thousand Canadians used those cards, together with a piece of photo ID like a driver’s licence, to prove that they were the person living at 123 Maple Street whose name was on the voters’ list. They won’t be able to do that in 2015.
Instead, many of those people may need to be vouched for – which under the challenging rules in the Fair Elections Act means finding someone who lives in your polling district, who knows you personally, who can confirm your address, and who will come to the polling station with you to swear to that in writing. It’s a more difficult procedure than finding someone to attest to your identity on a passport application. Expect confusion, conflict and longer lines at the polls in 2015. To what end? None whatsoever, other than allowing the government to claim that it is dealing with an electoral-fraud problem that every expert who has studied the subject says does not exist.
The chief electoral officer is no longer muzzled by the Fair Elections Act, but Elections Canada is: The new and improved bill forbids it from running the kinds of public education and outreach campaigns that it has always run, promoting voting and educating people about democracy. Programs in elementary and high schools have been grandfathered, but everything else is off limits.
Under the bill, the chief electoral officer and the commissioner for Canada elections must also seek the permission of the government each time they want to hire outside experts or investigators. Bad idea. Elections Canada is supposed to be independent, so that it cannot be influenced by the party in power. Its head, the chief electoral officer, is an officer of Parliament, not a member of the government.
The bill also imposes an unnecessary separation of the chief electoral officer and the commissioner, the person in charge of pursuing investigations of electoral wrongdoing. It moves the latter into a branch of government and out of Elections Canada. There’s no need for this. It’s a vestige of the original Fair Elections Act, which aimed to punish Elections Canada by diminishing its powers.
There’s more in this bill that’s not quite right, and in an ideal world, the Fair Elections Act would be killed, and Parliament would start over again in the fall.
The bill’s history is a case study in how legislation affecting the fundamentals of our democracy should not be drafted, amended or passed. Almost everything about the process has been wrong. The original bill was set to go through Parliament quickly; the final version was rewritten even more frantically, with amendments introduced and voted on at hyper-speed.
A majority government does this all the time with its own pet legislation, but election law isn’t supposed to be partisan. Democratic politics itself will be intensely competitive, but the rules of the game must be non-partisan. Changes to those rules should only be made after careful study, consultation with experts and through a consensus among all parliamentarians. The Fair Elections Act didn’t come out of such a process. Remarkably for all of that, it’s only a modestly bad bill. Canadian democracy can aim a bit higher.