You may have missed it in all the hubbub over foreign election interference, but last week a court struck down Ontario’s law restricting spending by unions and other “third party” advocacy groups in election campaigns: “foreign” election interference of another kind.
This is an issue that has bedevilled Canadian politics for decades. Governments have wobbled back and forth, from the total free-for-all that prevailed in Ontario until not long ago to the near-total ban that has applied at other times in other jurisdictions.
Each is obviously unsatisfactory. On the one hand, there would seem little point in limiting party spending while leaving third-party groups free to spend as much as they like. On the other hand, to effectively forbid private groups from communicating with voters at election time is a clear assault on free speech rights.
But the middle ground has proved scarcely more satisfactory, as the current controversy suggests. In 2017, Ontario’s then-Liberal government passed a law restricting third-party groups to spending no more than $600,000 in the six months before a campaign (separate limits apply during the campaign).
Then, in 2021, the Ford government extended the coverage period to 12 months. When that law was tossed out by the courts on free-speech grounds, Mr. Ford simply passed it again, backed by the notwithstanding clause. Now the Ontario Court of Appeal has tossed it out again, this time on democratic-rights grounds – to which the notwithstanding clause does not apply.
While any defeat for the notwithstanding clause is cause for celebration, it is unclear whether the broader outcome is progress or not. Why is six months legitimate, but 12 months not? What makes $600,000 an acceptable limit, versus some other amount? What is the principled basis for any of this?
The roots of this muddle lie in the fundamental assumption of Canada’s campaign-finance laws: that elections are a matter exclusively between the political parties. Fairness, therefore, calls for each party to be restrained to spending the same amount. So, too, fairness demands that third-party groups should face much more severe limits, if not an outright ban.
But elections are not only a contest between the parties. They are a conversation among Canadians. The parties may have views on which of them deserve to be elected, but so do 40 million citizens. That is whom we should be concerned to treat fairly: to ensure that, in the national conversation, wealthier individuals do not drown out others with less means.
What are political parties, anyhow, but groups of like-minded individuals? We talk about party spending, but it is their contributors, really, who are spending the money: the party is just the transmission mechanism.
Rather than limiting party spending, then, it is contributions that should be limited – as, indeed, they are. But here again we get it wrong. The pertinent question as far as fairness is concerned is not the size of each contribution, but how much in total a person is able to contribute in a given year.
Limit contributions, singly, and it is still possible for the rich to have more voice in the conversation, by making multiple contributions. Limiting total contributions, on the other hand, constrains a person’s overall capacity to influence the debate.
How those contributions are divided up should be of no concern. Whether a contribution was made to a party or a candidate, for a nomination race or a general election, to one party or several, it would all count against a person’s total annual limit.
But here’s the thing: it should not matter, either, whether the contribution is to a registered political party or a third-party group. Each is as legitimate a way for an individual to project her voice in the political arena as the other, and it should not be up to the state to discriminate between them. It follows that contributions to each should be regulated in exactly the same way, as part of the same personal annual contribution limit.
That obviously wouldn’t apply to the non-political activities of advocacy groups. But insofar as they were engaged in political advertising – that is, advocating for or against the election of a particular candidate or party – they would be constrained, like the parties, to spend no more than they could raise in this manner.
Beyond that no further regulation is necessary. The total amount of money flowing into the system having been capped, the system would be essentially self-regulating: The more a person gave to one cause, the less she would have left over to contribute to others.
The court has given the Ford government 12 months to come up with a Charter-compliant campaign-finance law. Rather than simply extend the current game of angels-on-pinheads, this is an opportunity for a fundamental rethink.