Maybe you think Doug Ford was wrong to invoke the notwithstanding clause to save his election spending law, Bill 254, after a judge overturned parts of it on Charter grounds.
Maybe you think the increasing tendency for premiers like Mr. Ford to make use of it shows the clause should never have been adopted. Alternatively, maybe you think there’s nothing wrong with the clause, even if Mr. Ford was wrong to use it in this case. Maybe you’re fine with both.
Okay. Let’s leave the clause to one side. What about the bill itself? Is it good law? Does it respect freedom of speech? Was the judge wrong to overturn it? In brief: No, no and no. It’s a terrible piece of legislation, far beyond its brazen attempt to muzzle the government’s critics. The judge was right to toss it out, but in truth it should never have passed.
Recall that the particular section before the court, limiting pre-election advertising by “third-party” groups – unions, corporations, activists of all kinds – is but one of several troubling provisions in the bill. Passed earlier this year, it raised the limits on individual contributions to nearly three times the level set by the previous Liberal government. In addition, it enriched the public subsidy to which the parties are entitled, another Liberal-era reform, which Mr. Ford had promised to abolish.
Doug Ford is right about limiting third-party political spending, and dead wrong about how to do it
Ontario overrides Charter to pass legislation to limit election advertising
So while the Ford government defends the limits on third parties in terms of the need to keep “big money” out of Ontario elections, in fact it is content that Ontario elections should be awash in big money – as long as it’s the right kind.
True, they would not be quite the disgraceful free-for-all they were until a few years ago, when contribution limits were much higher and corporations and unions were free to spend as much as they liked to swing elections their way.
But rather than rein in the influence of money on all sides equally, the province has taken a distinctly one-sided approach to the issue. While whatever modest restraints the parties briefly endured are rapidly being unwound, third parties find themselves subject to an increasingly repressive gag law.
Certainly there have to be some restrictions on third-party spending – otherwise the party spending limits become meaningless. But under first the Liberals and now the Conservatives, these have been tightened much further than was required.
Rather than regulate third parties on a level plane with the parties, the Liberals subjected them to limits that were both tighter ($600,000 apiece, a pittance beside the millions parties are permitted to spend), and significantly longer in duration: applying not just for the length of the campaign, but for six months before.
Moreover, rather than define the spending subject to regulation in the usual way, as that which directly promotes or opposes a “registered party or its leader or … candidates,” the Liberals expanded it to include taking any “position on an issue that can reasonably be regarded as closely associated with” a party, leader or candidate. It is difficult to think of an issue that would not fit that description.
It was not surprising, then, to see these restrictions come under legal challenge, well before the Conservatives came to power. But what did the Ford government do in Bill 254, even as the case was before the courts? It doubled the blackout period, from six months to a year.
The idea that a group of citizens who care deeply about an issue should be prevented from bringing these concerns to public attention is disturbing enough, even during an election campaign. But that they would be similarly proscribed for six months, or a whole year, is frankly incredible.
More to the point, it’s unnecessary. As I’ve argued before, we can limit the influence of big money at election time, without going to such discriminatory extremes. We don’t need a separate, extra-severe regime for advocacy groups. Rather, the law should treat them in the same way as the parties: As the means for the individuals of which they are composed to project their voice in the political arena. Elections are, fundamentally, a matter between individual voters. So should campaigns be.
Allot to every citizen, then, an annual political contribution budget, a few thousand dollars at most, out of which to fund the political causes of their choice: parties, candidates, but also advocacy groups. And require any organization or group, so far as it wishes to promote or oppose a party, leader or candidate, to spend no more in that regard than it can raise from these individual contributions. That’s it. That’s all the regulation you need.
Perhaps it will be objected that this will mean less is spent on campaigns in total. I confess I am not greatly troubled by this prospect.
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Andrew Coyne