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Letting the people speak

By Walter Robinson
web posted December 10, 2001

Thank you Rick, you read that brief bio exactly as I typed it.

And thank you to GOGEL organizers for giving me this opportunity to speak and the Lexington crew who have acted as superb hosts. The warmth and hospitality that I've have been shown over the past few days has been wonderful and as a resident of Ottawa, Ontario - Canada's capital - if I can speak on behalf of all the Canadian delegates in attendance, we look forward to reciprocating this warmth to you next September.

I can guarantee you two things on your trip up north next year, the weather will be similar if not warmer than what we are experiencing here this week and your U.S. dollars given the exchange rate, will go for days and days and days in Canada.

On a lighter note, as much as our two countries are different in several respects, in my free time on Sunday I made my way to Toys 'R' Us, and for those of you who have younger children, I felt at home as the Lexington store is the same as the Ottawa store ... Clifford the Big Red Dog is everywhere.

Now to the matter at hand. Your turnout for this session indicates the large and wide-scale interest in campaign finance reform in general, and more specifically, the role that interest groups and political action committees or as they are called under Canadian law - 3rd parties - play in the electoral process. And for clarity when I speak of 3rd party I'm not speaking of Ralph Nader's Green Party or the turbulent U.S. Reform Party. I'm referring to citizens and citizens advocacy groups. I will use the two interchangeably during my remarks this afternoon.

The term 3rd party is extremely pejorative and fundamentally offensive to organizations such as the one I represent, the Canadian Taxpayers Federation, along with many other advocacy, business, labour and a plethora of citizen's groups in Canada. 3rd party - in the legal sense - belittles the intervention of citizens in democratic contest to "unwanted outsider status" who are not germane to the contract between voters and want to-be legislators.

But to stick with this legal train of thought, it is the intervention of citizens and groups with their ideas and issues which actually provides the currency or the consideration for the electoral contracting process to work. And outside actors actually enhance the capacity of voters and politicians to execute the electoral contract with its culmination on voting day.

While McCain-Feingold and recent U.S. experience is something that many of you are more familiar with than I could ever hope to be, I believe my overview of recent Canadian experience will yield similarities in issues and points of debate.

If I may offer a template for my remarks, first I will provide you with a Reader's Digest of Cliff's Notes version of the CTF. Then I will move to a brief overview of the differences between Open Government institutions on both sides of our shared border. The bulk of my presentation will offer a historical overview of the 3rd party spending limits saga in Canadian electoral law over the past 30 years. It will focus of first principles and freedom of speech concerns. And I will conclude by highlighting the foundational political and constitutional issues involved in regulating and restricting citizen and citizen advocacy group advertising during elections. These issues are relevant to the questions you grapple with as a result of Buckley v. Valeo and its First Amendment implications.

First let me start with what I call, the James Stockdale questions, Ross Perot's Vice-Presidential running mate in 1992. You may recall he opened his portion of the televised VPs debate in a gruff manner with - and forgive me for paraphrasing, he opened with who am I, whom do I represent and why am I here?

Thankfully, Rick Bader, our capable moderator, has answered the first question. As for the organization I represent, the CTF was founded in 1990 an we now boast some 61,000 supporters across Canada. We are non-partisan and not-for-loss (as opposed to saying not-for-profit) and this should give you a sense of our political direction ... it is fair to characterize us an advocacy group motivated by principles of fiscal conservatism that stress a limited and priorized role for government.

Our three-fold mandate is highlighted on the slide behind me and we have become Canada's most visible, vociferous and effective taxpayer advocacy group. For an American reference point, we are similar in approach to the National Taxpayers Union.

In terms of the differences between our two countries, two key differences have become abundantly clear, as I've sat through the sessions yesterday and this morning. First, the degree of politicization of your offices in the U.S. is way beyond where we are - and hopefully, where we ever will be Canada. This is partly a function of different political cultures and partly a function of institutional structure.

Which leads to my second observation, the American open government agencies - my loose term for the transparency which you all seek to bring to the operations of government and the political process - are much more prevalent at all levels of government than ours in Canada.

The majority of our Access to or Freedom of Information Commissioners, Ethics and Conflict of Interest Commissioners and Chief Electoral Officers are appointed by their respective legislatures and as such, not subject to a great degree of political interference.

The exception to this rule would be our federal Ethics Counsellor (whom incidentally is also responsible for lobbyists registration). He has become embroiled in partisan issues and I assert that it stems from the fact that he is a political appointee as opposed to a legislative appointment. He was appointed by and reports only to our Prime Minister. As the Dana Carvey would say in the old SNL church lady skit "well isn't that special."

The largest difference between our two countries is the extent of bureaucratization of open government at the local level. In short, the U.S. is miles ahead (or kilometers ahead if I want to invoke the dreaded metric system) of Canada in this sphere.

Let us now turn to the Canadian experience with 3rd party spending restrictions which is the self-evident answer to third Stockdale question, why am I here?

Canada's electoral regime was formalized in 1920 and remained largely untouched until 1974. In 1974, amendments to our Elections Act banned third party advertising, based on the work of the Barbeau committee from 1966, coincidentally, the year I was born so the issue - to a degree - has a 35-year history. However a "good faith" exemption in 1974 allowed advocacy groups and others to communicate freely with respect to issues.

In a sense, the ban was in the letter but not the spirit of the law. Nonetheless, this development was troubling as recent government briefing notes indicate that the reason for the ban was "based on the view of Members of Parliament and elections experts that election campaign participation should be limited to official parties and candidates."

Forgive me for being idealistic, but democracy is a derivation of the Greek work demos, which means the people. And to go further aren't election campaigns for the people instead of the parties? And shouldn't a campaign consist of a competition of ideas, all ideas - not just those that political parties put forward - for the people to weigh and judge?

Fast forward to 1983 when the Liberal government of Pierre Elliot Trudeau brought forward Bill C-169 which threw out the "good faith" clause. This law partly stemmed from the Chief Electoral Officer's report - M. Jean Marc Hamel - who stated that third parties "have spent unlimited sums of money to promote or oppose a particular candidate or registered party, sums which they do not have to account for in terms of resources or amounts."

This statement was and remains one of the darkest days in the history of Elections Canada, an agency that enjoys a high degree of respect in Canada and abroad. Mr. Hamel was - to use parliamentary language - being extremely economical with the truth. In plain talk, it was an unbelievable fabrication ... a lie. It was an assertion of opinion and should never be mistaken for a statement of fact. The extent of this lie would be similar to me saying that Kentucky - be it UK or Louisville - has never produced a winning NCAA basketball program!

To add insult to injury, the law was drafted in secret by MPs and Elections officials and debated for an under-whelming 40 minutes in our House of Commons then passed with unanimous consent on third reading on a sleepy Friday afternoon. This is the Canadian version of what the West Wing has dubbed" throwing it out with the Friday trash."

Before the 1984 federal election, the National Citizens Coalition, the NCC - an organization somewhat similar to ours - challenged the law in court as it violated section 2(d) of the Charter of Rights and Freedoms ... our freedom of expression provisions. The opening argument of the NCC's lawyer said it all ...

"There is not a more important period in a democracy than the election period. The parties in Parliament, in their collective wisdom, have determined that we should only hear their side of the story. So much for democracy. So much for democratic rights and freedoms."

In June 1984, the court agreed and the federal government did not appeal. Two elections - in 1984 and 1998 - were again conducted without 3rd party limits. But the 1988 election, fought over the issue of free trade with the United States, became Canada's first Americanized campaign where big business sided with the governing conservatives in favour of free trade.

Meanwhile, big labour and social action groups sided with the opposition parties against the free trade agreement.

Millions of dollars were spent on both sides by these extra-parliamentary actors and I contend that because of this spending, Canadians were more informed than ever before. As a university student I participated in endless debates on campus and can remember going to parties where the agreement was debated clause by clause over beers in someone's kitchen.

Now I realize that I may be stretching credibility on this point, but it's true, it happened. And more to the point it was reflective of the national debate.

After the election the Lortie Royal Commission on Electoral Reform and Party Financing was struck and reported back in 1991 advocating a $1,000 limit on 3rd party spending. The Commission had the temerity to state that this would allow a third party "to engage in a significant amount of political activity." In 1992, a parliamentary committee - the Special Committee on Electoral Reform - took up the challenge meeting on 21 separate occasions for 65 hours ... but for a committee advocating transparency and fairness, it is ironic, if not hypocritical, that for 52 of those hours, some 80% of their time, no minutes were kept. Hmmm?

Subsequently Bill C-114 was passed, the NCC challenged it in the courts again, and sure enough, it was throne out again as not only violating freedom of speech, but sections 2(d) and 3 of our Charter ... the right to freedom of association and the right to vote - with a interpretation by the court of one's ancillary right to an informed vote, respectively.

Two years later, in 1995, before the federal government decided whether it would appeal the Alberta court decision - which it didn't - the socialist NDP government in British Columbia introduced its own gag law limiting citizen and citizen group spending to $5,000.

During the 1996 provincial election in B.C., several groups violated the law including the CTF which spent over $45,000, the NCC ran TV and radio spots in the State of Washington, which borders on B.C. Another private citizen, Garry Dixon brazenly broke the law by spending $6,329 on newspaper and radio ads in B.C.

He was summarily convicted and fined $13,000. The NCC helped Mr. Nixon launch a legal challenge to the law in the summer of 1999, and in February 2000, the B.C. Supreme Court overturned the gag law.

The presiding justice stated: "To override charter rights it is necessary that there be more than a general hypothetical concern about a problem when there is no evidence to demonstrate that it has existed in the past or that it is likely to exist in the future."

In May 2000, the federal government, after witnessing three defeats in the courts in 16 years, tried again to infringe upon free speech with yet another gag law. They seemed to be following their own motto of persistence, if at first you don't succeed at trampling fundamental constitutional freedoms, try, try, and try again and waste millions of taxpayer dollars in the process.

This time round, third party spending was set with a "generous" $150,000 national limit, or a maximum of $3,000 per riding. Combining groups or forming new advocacy groups was forbidden. As well, a variety of disclosure requirements with varying degrees of transparency were put in force depending on the level of one's expenditures ... the more you spent, the more disclosure sought.

In fairness to the government, they thought they were addressing the fairness question with larger limits. But as this slide clearly shows, the ratio between political parties and citizen groups on a national scale was over 75 to 1 and in all 301 of our local constituencies or ridings, each candidate could spend 96 cents per elector compared to 5 cents for citizens or citizen groups if they chose to max out their $3,000 for the riding. If a group chose to allocate its $150K over all 301 ridings, it worked out to less than 1 cent per elector.

In a hypothetical scenario, even if we were to concede Charter concerns, by fairness criteria alone, the government failed its own test. And like the broken record this history had become, the NCC again challenged the law in court and eventually won with another favourable decision handed down this past June.

But this was not before the limits were in force, then suspended, then in force again during our federal election during November of 2000 due to one court staying the contentious sections of Bill C-2 and then being overturned by a superior court.

In the June 2001 decision the court noted that Section 2(b) - freedom of expression - and 2(d) - freedom of association - were violated by the gag law. Perplexingly, the court held up those provisions of the law for 3rd party registration and disclosure, including audited spending and contributor sources.

Both parties are appealing and it will eventually make its way to the Supreme Court of Canada. One final footnote is that in Manitoba, the NDP government introduced sweeping election reform legislation - including a gag law - right around the time that it was struck down in B.C. This section of the law has been passed but not proclaimed. If and when it happens, we will launch a Charter challenge to its legality, as the lawyers like to say, forthwith. This explains the gag on the Golden Boy statue - which rests atop the Manitoba legislature in Winnipeg - on the screen behind me.

So what are the relevant issues?

Governments have passed spending laws on third parties under the guise of equity, transparency and accessibility for all in the electoral process. But it is our contention that they are really based on the false and offensively paternalistic premise that voters are stupid and easily swayed ... but voters are not stupid. In Canada, no credible evidence supports this assertion therefore elections officials can never present evidence which does not exist.

As well, the courts have heard that voters place no more or no less stock in the information disseminated by groups that are not political parties. So much for the undue influence hypothesis.

Essentially, the debate boils down to the egalitarian - or dare I say socialist - view of the electoral process versus the libertarian framework of electoral analysis.

Freedom of speech in Canada or your First Amendment provisions are paramount in a truly democratic society ... that is why the framers of your Constitution appropriately placed it as the First Amendment.

And in Canada the courts have been very instructive in providing a four-question sequential flowchart template for assessing when these rights can be violated by the state. While constitutional rights are paramount, I, like any reasonable individual will concede that they are not absolute.

The federal or provincial government can maintain a law which is unconstitutional if the Court can answer the four questions in sequence and in the affirmative.

1) Does the law address a pressing and substantial concern?

2) Is there a rational connection between the law and the concern which the law tries to address?

3) Does the law impair the Charter right or freedom as little as possible?

4) Do the positive effects of addressing the concern outweigh the negative effects of violating a Charter right or freedom?

The government must answer yes to all these questions, if not the law is struck down as inconsistent with the Charter and unconstitutional. At the end of the day, citizens are owners of the public policy process; they should not be shut out.

To conclude I will leave you with two disparate but related observations.

In 1969, Soviet dissident Alexander Solzhenitsyn wrote to the Moscow Writers Union that "it is time to remember that the first thing we belong to is humanity. And humanity is separated from the animal world by thought and speech and they should naturally be free. If they are fettered, we go back to being animals." Solzhenitsyn went on to win the Noble Prize for literature in 1970.

And in 1981, Samuel L. Huntington, who along with Henry Kissinger and Zbigniew Brezinski, is acknowledged not only as one of America's most prescient foreign policy observers and commentators, but is viewed in some circles now as prophetic for his commentary on the role of American institutions in the present and very real clashes between the Western and Islamic civilizations astutely observed that:

"Opposition to power, and suspicion of government as the most dangerous embodiment of power, are the central themes of American political thought. "

Indeed they are the most central, enduring and timeless themes of American political thought and discourse. That is why regulators and governments should let the people speak; it is ultimately their right to do so.

Walter Robinson is the federal director of the Canadian Taxpayers Federation. This is the text of a speech delivered by Mr. Robinson to the Issue Advocacy, Soft Money & 3rd Party Advertising Panel Discussion at the 23rd Annual GOGEL Conference (Council on Govermental Ethics Laws) in Lexington, Kentucky on December 4.

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