Supreme Court (of Canada) Upholds Election Spending Law

http://www.cbc.ca/stories/2004/05/18/canada/scoc_election040518


OTTAWA - The Supreme Court on Tuesday upheld a
law limiting how much money special interest groups
can spend during elections.

In a 6-3 decision, the court ruled the law can be
justified under the Charter of Rights.

... Under provisions in the Canada Elections Act,
third-party spending is limited to $3,000 per riding and
$150,000 nationally; lobby groups must register with
Elections Canada; and all contributors who donate
more than $200 must be reported.

Conservative Party leader Stephen Harper launched
the challenge against section 353 of the act when he
was head of the National Citizen's Coalition in Alberta.


The decision was released this morning and media reports are still sketchy.

The decision:
http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2004scc033.wpd.html

The parties:

Attorney General of Canada - Appellant
(appealed the decision of the Alberta Court of Appeal striking down the federal law as unconstitutional)

Stephen Joseph Harper - Respondent
(current leader of the new Conservative Party, challenged the spending limits as unconstitutional limits on constitutional freedom of speech)

Attorney General of Ontario,
Attorney General of Quebec,
Attorney General of Manitoba,
Democracy Watch and National Anti-Poverty Organization (NAPO),
Environment Voters, a division of Animal Alliance of Canada,
and John Herbert Bryden
(Liberal MP who was targeted by a right-wing special interest group in last election)
-- Interveners

The Chief Justice (from the west) and two other judges, from Alberta and Ontario (and none of the Quebec/francophone judges on the Court) dissented and agreed that the law was unconstitutional.

Election speech/spending is of course an issue on the US side of the border too, and I thought some people here might be interested in the arguments made in Canada and the government's and Court's responses to the problems.

This is an extremely important decision here, and it was important to have the Court's ruling before the election that Martin is expected to call momentarily.

The challengers to the law were essentially the absurdly named National Citizens' Coalition and its hangers on and backers. The NCC is no more nor less than a front for traditionally right-wing Tory business interests (historically heavy on insurance companies), and turning the health care system over to private profit-making is one of its goals, of course. The Court has also upheld the provision of the law that requires them to disclose their donors (as political parties must), and this has them in a complete tizzy. That, and they've been ordered to pay court costs "throughout", i.e. at all levels.

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http://www.nupge.ca/news_2002/news_no02/n08no02a.htm
(National Union of Public and General Employees)

The National Citizens' Coalition loves you - ha! ha! ha!
35 years of fighting for fat cats while posing as ordinary citizens

Toronto - It would be hard to find a more mis-named organization than the National Citizens' Coalition.

The NCC was founded 35 years ago by an insurance millionaire named Colin M. Brown in London, Ontario. ... One of the fires that burned in Brown's well-fed belly when he launched the NCC was his hatred of public health care. The motto he chose for the NCC was, "More freedom through less government." It meant more freedom for the rich, not the poor, of course.

... For the record, here are some of the other great 'citizens' the NCC has honoured over the years: Conrad Black, Peter Worthington, Ted Byfield, David Somerville, Mike Harris (yes, him), Ralph Klein, John Crosbie, Thomas Bata, Michael Walker and Diane Francis.

... Ken Georgetti, president of the Canadian Labour Congress, recently wrote an article about the NCC for Straight Goods. Here is an excerpt which offers a quick overview.

Straight Goods 27 May 2002:

... Despite it’s name and the rhetoric it employs, the NCC is a very private organization. It claims to be funded through 'the voluntary support of 40,000 Canadians', but the real money and power sits with an advisory council drawn from this country’s corporate elite. Chairs and members of this council have come from the Bank of Montreal, the Canadian Imperial Bank of Commerce, Power Corporation, Canadian Pacific, Brascan, Goodyear, major insurance companies, advertising agencies, and other corporations. It is this blue ribbon panel that provides the connections to raise the funds that support the NCC’s activities.

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the Supreme Court gets it right again!

For those with an interest in constitutional law.

http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2004scc033.wpd.html

Per Iacobucci, Bastarache, Arbour, LeBel, Deschamps and Fish JJ.: The current third party election advertising regime is Parliament's response to this Court's decision in Libman. In promoting the equal dissemination of points of view by limiting the election advertising of third parties who are influential participants in the electoral process, the overarching objective of the spending limits is electoral fairness. This egalitarian model of elections seeks to create a level playing field for those who wish to engage in the electoral discourse, enabling voters to be better informed. ...

The limits on third party election advertising expenses set out in s. 350 infringe the right to freedom of political expression guaranteed by s. 2(b) of the Charter but they do not infringe the right to vote protected by s. 3. The right to meaningful participation in s. 3 of the Charter cannot be equated with the exercise of freedom of expression. The two rights are distinct and must be reconciled.

Under s. 3, the right of meaningful participation in the electoral process is not limited to the selection of elected representatives and includes a citizen's right to exercise his or her vote in an informed manner. In the absence of spending limits, it is possible for the affluent or a number of persons pooling their resources and acting in concert to dominate the political discourse, depriving their opponents of a reasonable opportunity to speak and be heard, and undermining the voter's ability to be adequately informed of all views.

Equality in the political discourse is thus necessary for meaningful participation in the electoral process and ultimately enhances the right to vote.

This right, therefore, does not guarantee unimpeded and unlimited electoral debate or expression. Spending limits, however, must be carefully tailored to ensure that candidates, political parties and third parties are able to convey their information to the voter; if overly restrictive, they may undermine the informational component of the right to vote. Here, s. 350 does not interfere with the right of each citizen to play a meaningful role in the electoral process.

The harm that Parliament seeks to address in this case is electoral unfairness. Given the difficulties in measuring this harm, at the stage of the justification analysis a reasoned apprehension that the absence of third party election advertising limits will lead to electoral unfairness is sufficient.

Furthermore, on balance, the contextual factors favour a deferential approach to Parliament in determining whether such limits are demonstrably justified in a free and democratic society. While the right to political expression lies at the core of the guarantee of free expression and warrants a high degree of constitutional protection, there is nevertheless a danger that political advertising may manipulate or oppress the voter.

Parliament had to balance the rights and privileges of all the participants in the electoral process. The difficulties of striking this balance are evident and, given the right of Parliament to choose Canada's electoral model and the nuances inherent in implementing this model, a court must approach the justification analysis with deference.

... While the overarching objective of the third party advertising
expense limits is electoral fairness, more narrowly characterized, the objectives of the scheme are threefold:
(1) to promote equality in the political discourse;
(2) to protect the integrity of the financing regime applicable to candidates and parties; and
(3), to ensure that voters have confidence in the electoral process.

... these three objectives are pressing and substantial. Section 350 also meets the proportionality test.

First, the third party advertising expense limits are rationally connected to the objectives. They prevent those who have access to significant financial resources, and are able to purchase unlimited amount of advertising, to dominate the electoral discourse to the detriment of others; they create a balance between the financial resources of each candidate or political party; and they advance the perception that the electoral process is substantively fair as it provides for a reasonable degree of equality between citizens who wish to participate in that process.

Second, s. 350 minimally impairs the right to free expression. Third party advertising is unrestricted prior to the commencement of the election period, and third parties may freely spend money or advertise to make their views known or to persuade others. Further, the definition of "election advertising" in s. 319 only applies to advertising that is associated with a candidate or party. The limits set out in s. 350 allow third parties to inform the electorate of their message in a manner that will not overwhelm candidates, political parties or other third parties while precluding the voices of the wealthy from dominating the political discourse.

Third, the s. 350's salutary effects of promoting fairness and accessibility in the electoral system and increasing Canadians' confidence in it outweigh the deleterious effect that the spending limits permit third parties to engage in informational but not necessarily persuasive campaigns.

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This should avoid a reprise of the 1988 election where third party spending propped up the pro-free traders. I hope.

I was Ipsos-Reided on Friday night! (Leading political polling firm, for non-Cdns.)

A rather long telephone survey. Hard to tell whether it was for Martin, a last-ditch attempt to gauge the mood of the electorate, or the Conservatives, looking for a strategy.

Some of the questions ...

Paul Martin is no different from Jean Chrétien - agree or disagree (strongly or somewhat)?
- Hmm, I'll be honest. Disagree, somewhat.
Honesty paid off in the next question: is that good or bad? Bad!

Paul Martin is calling this election because he wants to get a mandate from the voters for important initiatives, or because he is a cynical politician?
- Duh.

The Liberals are corrupt.
- Duh.

A minority govt. would be a good thing.
- Agree strongly.

The new Conservative Party is just like the old Reform Party.
- Duh.

Then there were all the questions about which leader/party would do the best job of this, that and the other thing -- including "standing up to the Americans". I sat there singsonging "Jack Layton and the NDP" for so long I was tempted to say "Brak! Polly wanna cracker!"

(The funny part was when the surveyor started out by asking whether my opinions of the various leaders had changed in the last two weeks, and the first name the caller offered me was "Giles Dwups" or something like that; I offered her my assistance with "Gilles Duceppe".)

There were two questions on which I offered no comment: which leader/party will do the best job of cutting taxes (how can anybody do a "good job" of that?) and which leader/party will do the best job of getting tougher on criminals (do I sound like a fascist moron?).

Then the conversation took an odd turn, and I was asked a bunch of questions about my male partner's health and my concerns about it. (I suspect that this is what I got for being in the "40-70" age group, and that the survey is about partner's health rather than own to avoid sounding intrusive.) Along with diabetes, cholesterol, blood pressure and arteriosclerosis, the surveyor took a rather pointed interest in his erectile function. Are the Liberals planning to include Viagra in the Canada Health Act??

So watch for the poll results and what Martin does with them, and see whether I said the right things!

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Sounds like the Tories. I don't think the Libs are using Ipsos, they tend to stick with EKOS. Expect a flurry of polls on Thursday and Friday.

I won't call those bastards "Tories"! There's still some shreds of honour attached to that moniker here, and they're not going to get it by association from me.

Yeah, Ipsos / Globe and Mail and all that. It was just that some of the stuff sounded so much like Martin fretting about his image. ;)

But no, it was plainly gauging the depth of hatred for both him and his party, and what the chances were of the Conservatives capitalizing on it.

Ergo, when asked what I party I would vote for if the sky fell and I was "unable" to vote for the NDP, I dithered ... and eventually said Green. As we all know, in a no-hope NDP riding I'd actually vote Conservative to oust the Liberals, but I wasn't going to tell them that!

And I agreed with all the nasty things the survey offered about Harper. But hell, I should probably have praised his fascist social policies to the sky, and encouraged him to pursue that program.

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I got one of those a few days ago.

Conservatives are going to try to make health care an issue. They're going to say it's too expensive because it funds viagra (it doesn't but they're not above lying through their teeth) and it needs to be privatized.

Martin has taken the wind out of their sails by announcing his 25% tax cut (which I don't happen to agree with, but it's still funny to watch).

Was it Ipsos who called you? If someone's trying to pull a push-poll, we may be able to get back at them.

What's a "push-poll"?

Basically the caller (usually from a less-than-reputable polling firm) asks a series of questions designed to push the voter away from the candidate the poll targets. The questions are in the form of a poll.
For instance "If you knew Anne McLellan ate babies for breakfast, would that make you more or less likely to vote for her? Somewhat likely?"

The objective is to disseminate disinformation disguised as polling. If the CPC and it's allies are using push-polling in your riding, it needs to be countered.

Here's a link on push polling from the Canadian Jewish Congress (don't know why I'm using them, but it does explain things)

http://www.cjc.ca/template.php?Story=787&action=itn

A gentle voice asks you to take part in a poll and asks Are you "more or less likely to vote for the Conservative/Alliance if you knew they had been taken over by evangelical Christians?"

What did you answer? Who cares? Not the pollster. Not even the person paying the pollster. Welcome to the world of the push poll, where the purpose is to talk to you, not to listen. The point is to plant an idea in the voter's head.

"We're going to be drawing some pretty careful distinctions between Stephen Harper and Paul Martin," a senior Liberal strategist told another newspaper recently about the poll. The Grits, the source said, plan to paint the Conservative leader as "radical and right-wing" with a "very American style."

So who invented this sleazy tactic that the Liberals are taking up? American right-wingers, of course. The very first push poll, as documented by Al Franken's book Lies And The Lying Liars Who Tell Them, came in 1978, when Republican strategist Lee Atwater commissioned "surveys" reminding South Carolina voters that a Democratic Congressional candidate was "a foreign-born Jew who did not believe in Jesus Christ as the Savior." With that under his belt Atwater was soon working for President George H.W. Bush.

Bush Jr. supporters employed the same tactic in South Carolina again, providing "information" that made his Republican rival John McCain seem like a combination of Al Capone, Svend Robinson and Henry Morgentaler.

The great thing about this tactic is, it lets you lie. Say there were an opening at the Star and I coveted the position. I could try to talk up my own qualifications, but in my case that's hardly likely to work. I'd go negative. I'd contact the people making the decision and say something like, "If you knew that I.D. Page 4 essayist San Grewal drinks his own bathwater, would that make you more or less likely to make him City Editor?"

It's not true, of course, but it doesn't have to be; the way it's phrased - if you somehow knew - allows you to claim that it's all hypothetical. You can see the application in your own life. You and a peer go prowling for action at the Whiskey Saigon but you're getting less attention from the desired sex than your friend. You sidle up to one prospect and say, "Oh, I'm so proud of Randy. To look now, you'd never think there were the divorces and the criminal charges in his past. What's your name again?"

So it's a tempting method for anybody, and not limited to Liberals. In the 1999 Ontario vote, with Dan Ronen - the brother of Canadian Jewish Congress President Moshe Ronen - running for the Liberals in Thornhill, John Mykytyshyn's firm conducted a push poll (in which voters were questioned as to whether they would vote for the Jewish son of a Holocaust survivor.)

There's no such thing as the Conservative/Alliance party, just the Conservatives, and its alleged takeover by snake-handling God squadders is dubious. But the Liberals hope that a few swing voters will fear that "speaking in tongues" could become our third official languages, and the party is probably right. The tactic often works.

There's a downside, of course. It's unprincipled, but if you care about that federal politics may be the wrong place for you. More importantly, it can be embarrassing to be caught.

So it's a tempting method for anybody, and not limited to Liberals.

In fact, it's not dissimilar from the tactics of some "liberals" I see in action not too far from where I'm typing.

Useful information. Just the sort of thing one might expect that the National Citizens Coalition might want to be spending its loonies on.

Fortunately, I'm confident that the poll I got was indeed Ipsos. And given that it said nasty things about both the Liberals (corrupt, Paul Martin cynical) and the Conservatives (same as Reform, Stephen Harper fundie right-wing) in the options I got, I'll give 'em points for both pushing and pulling -- and just saying what a lot of us think anyhow. ;)

Remember Yes, Prime Minister and the conscription poll?

http://www.yes-minister.com/ypmseas1a.htm

Sir Humphrey: "You know what happens: nice young lady comes up to you. Obviously you want to create a good impression, you don't want to look a fool, do you? So she starts asking you some questions:
Mr. Woolley, are you worried about the number of young people without jobs?"

Bernard Woolley: "Yes"

Sir Humphrey: "Are you worried about the rise in crime among teenagers?"

Bernard Woolley: "Yes"

Sir Humphrey: "Do you think there is a lack of discipline in our Comprehensive schools?"

Bernard Woolley: "Yes"

Sir Humphrey: "Do you think young people welcome some authority and leadership in their lives?"

Bernard Woolley: "Yes"

Sir Humphrey: "Do you think they respond to a challenge?"

Bernard Woolley: "Yes"

Sir Humphrey: "Would you be in favour of reintroducing National Service?"

Bernard Woolley: "Oh...well, I suppose I might be."

Sir Humphrey: "Yes or no?"

Bernard Woolley: "Yes"

Sir Humphrey: "Of course you would, Bernard. After all you told you can't say no to that. So they don't mention the first five questions and they publish the last one."

Bernard Woolley: "Is that really what they do?"

Sir Humphrey: "Well, not the reputable ones no, but there aren't many of those. So alternatively the young lady can get the opposite result."

Bernard Woolley: "How?"

Sir Humphrey: "Mr. Woolley, are you worried about the danger of war?"

Bernard Woolley: "Yes"

Sir Humphrey: "Are you worried about the growth of armaments?"

Bernard Woolley: "Yes"

Sir Humphrey: "Do you think there is a danger in giving young people guns and teaching them how to kill?"

Bernard Woolley: "Yes"

Sir Humphrey: "Do you think it is wrong to force people to take up arms against their will?"

Bernard Woolley: "Yes"

Sir Humphrey: "Would you oppose the reintroduction of National Service?"

Bernard Woolley: "Yes"

Sir Humphrey: "There you are, you see Bernard. The perfect balanced sample."

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I doubt Ipsos would have the nerve to pull a push-poll, it would ruin them.

This is the first time the court favoured the gag law. This dance has been going on since the 80s. It was always the same routine- they pass the law just before an election so that it won't get a ruling on until after the vote, then the Supreme Court tosses it out, then they try again just before the next election. Combined with the new campaign finance laws, this decision guarantees that the ruling Liberals will have more money than the other four parties combined, all paid for by the taxpayer.

Or Tom D'Aquino, or any of those corporate ideologues determined to force their bullshit on regular Canadians.

I put a few things to you a little while ago:
http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=102&topic_id=534474#537439
and just never got a response.

You may have noticed that your party has ceased to exist. It's a dead rhino.

I haven't heard you actually express any policy positions here, I don't think. You claim to support a non-existent party (which didn't actually have policy positions in the first place), and then simply parrot all the right-wing talking points that could conceivably be parroted, in criticizing whatever person or party or policy happens to catch your fancy.

Let's have some straight talk, 'k?

Do you favour allowing unlimited spending by non-candidates and non-party organizations, on partisan advertising (not issue advertising; that's another animal), during election campaigns?

Then maybe we could dispense a bit with the form, and try some substance.

How 'bout health care privatization, the issue that the non-party organizations in question are actually wanting to influence votes on, with their advertising dollars? (C'mon, you don't buy the line that the law is going to hurt the Kiwanis Club in Ottawa-Orleans in its efforts to get funding for a family-oriented park by engaging in partisan political advertising, do you?? As Liberal bagman David Smith said on Newsworld this morning: spend the damned money on a park!)

I'm afraid that I'm not at all persuaded that you were ever a Rhino, and I'm trying might hard to figure out what, of "liberal", "democratic", etc., you might actually be. Help me out.

And if you're going to make monstrously idiotic and false allegations like that one about Martin buying judges of the Supreme Court of Canada, do be prepared to be scorned.

And try to be accurate, at least. The courts have considered various election spending limitation laws in the past; the SCC had not consisdered this one or one that provided what this one provides. The legislation in question here is precisely the government's response to judicial objections to previous (some long-standing) legislation, and the Court has found that it meets those requirements.

It was always the same routine- they pass the law just before an election so that it won't get a ruling on until after the vote, then the Supreme Court tosses it out, then they try again just before the next election.

Oops. Guess that won't happen this time. It's here to stay. Unless Stephen Harper gets elected and acts on his promise to repeal the law. (Wouldn't it be fun to see what Reform promises actually got acted on, some day?)

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Just when I think there's a chance for a fascinating discussion of social and political issues, off he goes again.

C'mon back! Tell us how much Martin paid those judges!

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Maybe he got TKO'd.

Methinks that if the citizenship he claimed were different, and the things he's been saying were about a different set of public figures, it mighta happened some time since.

I'll be here, waiting for something "liberal" from that direction.

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http://www.theglobeandmail.com/servlet/story/RTGAM.20040518.wsccq0518/BNStory/National/


"The court has essentially stripped away a basic democratic freedom – our freedom of expression ... from now on elections in this country will not be free and the expression of political opinion will be a crime.”

“From now on, only politicians will be able to speak during the course of an election. What the Supreme Court has done today is stab our democracy through the throat.”

“I feel like there's been a death in the family.”

Clearly no-one in Mr. Nicholls' family has ever died.

“I feel like there's been a death in the family.”
Clearly no-one in Mr. Nicholls' family has ever died.

He actually was choking back the tears.

Mainly, though, it seemed to be over what it was going to cost him and his cronies to cover the court costs of all the parties.

And the dang thing for them is, none of them can now give money secretly for these free-speech activities of theirs. The names of contributors to their partisan electoral activities are going to have to be disclosed, just like the names of donors to candidates' and parties' campaigns.

It's amazing that anyone would even be foolish enough to object to that bit, but he did.

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Although, I'm sure we can all guess pretty accurately. Maybe this ruling is a stake through the heart for them? After all, what else do they actually do?

but then again, so is his whole organization.