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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