Monday, August 30, 2004

I can't let this go! Someone help!


More on freedom of election speech (previous moon-barks here, here, and here).

What if we were running a high school debate, and to be argued was this: Be it resolved that there is too much money in politics.

I obviously take the NO side to this debate, mostly on principle. And while I'm happy on occasion to stand on principle, I would prefer to have principle backed up by the preponderance of evidence.

So back to the debate question: if I were forced to argue the affirmative, what supporting materials would I use? After considerable thought, I can't come up with a single remotely provable assertion to support the resolution. Even a strict reading of Harper v. Canada indicates that were it not for the Supreme Court's alleged belief in "deference to Parliament" (i.e. if there were no restrictions, and someone sued to have them enacted), the ruling would have been 9-0 for Harper.

As such, I seek help. Whether out of ideological conviction or playful contrariness, I ask for submissions of any or all of the following:
  • Statistical or other data showing a cause-effect relationship between a party or issue's funding and number of votes received
  • Any example of an election result that was "bought" with paid speech (and preferably, if you also deem it as "unfair", but I don't want to make this too tough)
  • Any personal or other anecdotal evidence of someone changing their vote because of paid speech, and where you would characterize this as "unfair"
  • Any example of a person, organization, or corporation who chose to spend money on election speech, where the government would have been wise and fair to prohibit this choice

Anyone? I make assurances that I will try to evaluate any submissions without prejudice. The only argument I dismiss preemptively is, "that's money we could be spending on health care", and variations thereof. I could also spend my beer & gum money on noble and charitable causes, and I will not debate that, at least not today.

UPDATE 420PM: I don't care if it's an essay, or just a link.

I am also willing to entertain arguments on simple principle, regardless of supporting evidence, with the important caveat that it must not contain as a central premise that other people are dumber than you.


At 4:08 p.m., Anonymous Anonymous said...

"Any example of an election result that was "bought" with paid speech"

Um, the last federal election here in Canada? That bloody ad campaign the Liberals ran didn't do our side any good.

I'm not blaming it on too much money, though, I'm blaming too little honesty.

At 6:42 p.m., Blogger Greg said...

Aldini, I would say the 1988 "Free Trade Election" is a good place to start your search. Remember, the Business Council on National Issues spent millions of dollars to sway the electorate during that election. For those of us on the left, there was a definite feeling that their intervention (especially after the debates) cost the anti-free traders the election. In fact, I would say that that election was the genesis of the changes to the election laws brought in under Chretien.

At 6:51 p.m., Anonymous Anonymous said...

Just for the fun of it, I'll take up this challenge, but I'll have to collect my thoughts before posting in full.

In the meantime, it is worth thinking about a few points

First, I think you misread the 'deference to Parliament' aspect of Harper v Canada. Even the dissenting opinion accepted that the Attorney General asserted a 'pressing and substantial objective'. In other words, they all agreed that uncontrolled election spending was a problem (Paragraphs 22-27).

Their dissention was primarily to the Proportionality of the measures (i.e., the spending limits - to which the SC defers to Parliament - were too 'draconian').

In other words, had the spending limits been higher, it probably would have been 9-0 AGAINST Harper, not for him.

Second, George Will's point that you highlight (money is speech, and restricitng the former necessarily restricts the latter) can work both ways, and is exactly the same point that is used to justify election spending limits - the more money you have, the less of a voice you have, which isn't consistent with the democratic principles of having an electorate that is equally informed of all viewpoints.

Finally, consider the most recent election. In this election, it was impossible for anyone except the wealthy (i.e., the offical Parties) to dictate the terms of the campaigns. As you point out in one of your previous posts, the limits were so low that no one else could effectively bring up any issues that the candidates themselves didn't bring up (e.g., Culture). In other words, the 'rich' (although artifically dictated by the Elections Act) controlled the terms of the election.

Now remove all spending limits and we, of course, have exactly the same situation, except that the 'rich' is defined differently (i.e. it will be actual wealth, not an artifical wealth as set by the CAE).

In both scenarios wealthy individuals are better able to mount effective campaigns to express their viewpoints than poor individuals. The ONLY difference is how the two sets of people are defined.

As such, it seems inconsistent for you to argue that the economic inequalities produced by the CAE had a negative impact on the election (your "Democracy Watch" post), while at the same time arguing that economic inequalities in general do not have any impact on elections.


At 7:11 p.m., Blogger Greg said...

This is an exerpt from a Canadian Business article from 1991. It outlines just who was behind the BCNI:

"The irony is that--despite the wrenching adjustments CCL would be required to make as a result of liberalized trade--like many of his fellow executives, McLeod participated in an extraordinary campaign by Canadian business to rescue the free trade agreement and, in the process, propel Brian Mulroney and his Conservatives to victory in the final days of the 1988 federal election campaign. McLeod's compatriots in the rescue effort included some of the most influential names in the nation: Trevor Eyton, president and CEO of Brascan Ltd., and now a freshman Conservative senator; David Culver, then chairman of Alcan Aluminium Ltd., now an independent financier based in Montreal; Robert Blair, chairman of Nova Corp.; and Peter Lougheed, former premier of Alberta and subsequently a partner in the Calgary law firm Bennett Jones Verchere, rank among the luminaries. Other businessmen, such as Noranda Forest Inc. Chairman Adam Zimmerman, who harbored personal reservations about the pact, decided to stand with their peers rather than challenge the orthodox view. The business community and the associations it spawned, such as the Canadian Federation of Independent Business and the Business Council on National Issues, combined to present an unprecedented common front for free trade.

As it turned out, the prestige of these free trade supporters may have been what gave Mulroney the 11th-hour boost he needed to overcome then Liberal leader John Turner, who had surged in popularity thanks to a dramatic performance during the televised leaders' debate. On Nov. 21,1988, despite his gains late in the campaign, Turner was routed at the polls and Mulroney returned with a revitalized majority government. As promised, a few weeks later Parliament passed the free trade agreement, and on New Year's Day, 1989, it became the law of the land."

I hope this helps.

At 8:40 p.m., Anonymous Anonymous said...

The Liberals themselves bought the election with paid speech ($1B CDN) via the CBC.

As it diminished the power spending power of special interests and churches, by default it increased the power of the CBC while not increasing the burden of CBC accountability.

It will be interesting to see if the clerk of the privy council was actually behind the engineering of the whole play.

At 10:11 p.m., Anonymous Anonymous said...

I just reread my post, and boy did I have a lot of typos.

When I said the more money you have, the less voice you have, I obviously meant to say 'less money'.

And CAE, should have been CEA (Canada Elections Act).


- Jass

At 10:48 a.m., Blogger The Monger said...

Hi Jerry,

I meant to add a short comment to your post, but it got so long-winded I decided to make it a full Monger post instead.

I especially like your caveat.


At 4:35 p.m., Anonymous Anonymous said...

Here’s my take. In the interests of full disclosure, I support the dissenting opinion of Harper v Canada that there is a pressing and substantive need for the electoral spending limits, but that the spending limits set by S. 350 of the Canadian Elections Act are far too low.

I’ll break up my discussion into three parts:

(1) The issue of ‘fair elections’ and the right to ‘meaningful participation’ in the electoral process
(2) The issue of ‘proof’ that money has influenced an election;
(3) How to reconcile Section 2 (Freedom of Expression) with Section 3 (‘fair elections’ and ‘meaningful participation’).

I’m sorry the post is so long, and in addition I’ve included a fair number of excerpts from the Harper v. Canada. I hope that they do not put too many people off.

On Fair Elections and the Right to Meaningful Participation in the Electoral ProcessAs Cosh points out, the SCC accepts the ‘egalitarian’ model of elections adopted by Parliament. This model has two related premises. First, that all citizens have the right to ‘meaningful participation’ in the electoral process. Second, that in order for voters to make a fully informed decision, it is necessary for them to be able to hear and evaluate all available options.

Neither of these two premises seem too controversial to me, but then I was never a poli sci major. Cosh, is absolutely correct that these concepts of electoral fairness and meaningful participation are never explicitly stated in the Charter. He is less than honest, however, about their derivation. They are not simply apparitions from the “bizarre mental universe of the Canadian Judge (Cosh)”, but are, in fact, derived from an extremely reasonable interpretation of Section 3 of the Charter:

3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.Interpreted narrowly, Section 3 means that we all have the right to run for office, and to mark a ballot, and that is all. I don’t believe, however, that most people would consider this to be a sufficient description of our individual’s democratic rights, and fortunately neither do the courts. In general, the courts have interpreted Section 3 rather more broadly to include the right to effective representation and the right to play a “meaningful role” in the electoral process. Rather than simply having the right to mark a ballot to determine the outcome of an election and then buggering off until the next election, our right to vote inherently contains our right to ensure that the person we elect represents us, as well as our right to participate in the electoral process (not simply the outcome) by participating in debates, expressing support for particular ideas, etc.

To save time I’ll only provide one SC reference on this issue, but there are many:

70 The right to play a meaningful role in the electoral process under s. 3 of the Charter implicates a right of meaningful participation in that process. Meaningful participation is not limited to the selection of elected representatives. As Iacobucci J. explained in Figueroa, at para. 29:

It thus follows that participation in the electoral process has an intrinsic value independent of its impact upon the actual outcome of elections. To be certain, the electoral process is the means by which elected representatives are selected and governments formed, but it is also the primary means by which the average citizen participates in the open debate that animates the determination of social policy. The right to run for office provides each citizen with the opportunity to present certain ideas and opinions to the electorate as a viable policy option; the right to vote provides each citizen with the opportunity to express support for the ideas and opinions that a particular candidate endorses. In each instance, the democratic rights entrenched in s. 3 ensure that each citizen has an opportunity to express an opinion about the formation of social policy and the functioning of public institutions through participation in the electoral process. [Emphasis added.]

Greater participation in the political discourse leads to a wider expression of beliefs and opinions and results in an enriched political debate, thereby enhancing the quality of Canada's democracy.
I suppose since Section 3 is pretty narrowly written that such an interpretation could be considered as the court imposing its ideology on the Charter, but does anyone seriously disagree with this interpretation. Do they really believe that our democratic rights are limited to running for office and marking a ballot?

Harper, himself, used this interpretation of Section 3 as part of his appeal by stating that s. 350 of the CEA infringes on his right to “meaningful participation” as outlined in Section 3, by limiting his freedom of expression.

Now that we have established that we all have the right to meaningful participation in the electoral process, we need to examine just what the hell that means. For this discussion it is only necessary to focus on one aspect and again the SC says it better than I could:

71 This case engages the informational component of an individual's right to meaningfully participate in the electoral process. The right to meaningful participation includes a citizen's right to exercise his or her vote in an informed manner. For a voter to be well-informed, the citizen must be able to weigh the relative strengths and weaknesses of each candidate and political party. The citizen must also be able to consider opposing aspects of issues associated with certain candidates and political parties where they exist. In short, the voter has a right to be "reasonably informed of all the possible choices": Libman, at para. 47.Again, this is not something that is ever explicitly stated in the Charter, but does anyone seriously disagree that for Democracy to work, it is necessary that voters be “reasonably informed of all the possible choices”? Is this really judicial whactivism?

From this it follows that if situations exist that prevent citizens from becoming reasonably informed of all possible choices, it represents a problem for Democracy. The court argues, and I agree, that unconstrained third party spending has this potential (see next section).

In essence, then, the SCC must reconcile a conflict (see last section) between Section 2 (Freedom of Expression) and Section 3 (Freedom to Vote), not a conflict between Freedom of Expression and some notion that they pulled out of their hat as Cosh seems to believe. You can make the argument that their interpretation of Section 3 is too broad, but I haven’t seen anyone do this, nor do I see any reason to believe that my democratic rights are truly limited to marking a ballot and running for office.

On ProofAs the SCC noted in its ruling, is impossible to prove (statistically or otherwise) that third party spending influences the outcome of elections. Most social science research is not amenable to unambiguously proving anything (see the smoking causes cancer debates for an extended example). The range of variables involved (advertising, background, polls, campaigns, speeches, documents, media coverage, etc.) and the mysterious ways in which people make decisions are far to complex to boil down to a simple yes or no answer. It is unrealistic to think that anything except “reasoned apprehension” could ever be produced.

In the case of electoral spending, many social scientists believe that third party spending influences elections (e.g. the Lortie Report – aka Royal Commission on Electoral Reform and Party Financing), while other social scientists disagree (e.g., Johnston et al 1992 - Letting the People Decide: Dynamics of a Canadian Election). This is further complicated by the fact that each study focused on different aspects of the electoral system: Johnston’s report only looked at the outcome of the election, while Lortie Report also examined the process of the election.

But isn’t the outcome the only thing that matters? Hardly. If anything, process can be considered more important since it determines the outcome. An outrageous analogy would be to imagine a situation in which women were not allowed to vote and the Rhino Party of Canada won the election. Women, however, decided that as a protest they would all participate in a ‘mock’ vote as a political statement. Now imagine some pollster aggregated the results from the real vote and the mock vote and discovered that the results would have been the same even if women had been allowed to vote for real. Are we then justified in claiming that the electoral processes is fine? Clearly not. Again, refer to the quotation by Iacobuci above on the importance of meaningful participation in the electoral process, not just the outcome.

Having said that, then, is there any case for a ‘reasoned apprehension’ that uncontrolled third party electoral spending could have a negative impact on an electoral process?

I think the answer is a clear yes, and is based on the two principles: first advertising works, and second the more money you have, the more you can advertise.

To claim that advertising doesn’t work is utterly fantastic considering the world around us. It would be impossible to get 5 minutes into a day without being exposed to advertising. Do you really believe that all of those millions of dollars spent on advertising is simply wasted money? Of course it isn’t. It is equally outrageous to claim that while people are influenced by automobile advertising (for example), they are somehow immune to political advertising. If this were really the case, why did Harper want to advertise in the first place?

Note, however, that in order to comply with Aldini’s Rules and Corollories, I am not arguing that the advertising “tricks” some people into acting against their better judgement (although the CPC outcries against the Liberal “scare tactics” seems to suggest otherwise). As noted above, what really matters is whether unequal advertising hinders citizens from becoming reasonably informed of all possible choices. It seems obvious that in the absence of spending limits it is possible for the affluent to dominate the political discourse, at the expense of others. ‘This unequal dissemination of viewpoints undermines the voter’s ability to be adequately informed of all views‘ (p.72), and as such limits their ability to meaningfully participate.

As I pointed out in my first post the recent election is a beautiful example of this principle in action. Because spending limits were so low, only one segment of society could dictate the terms of the election (i.e., the candidates and parties). Rather than eliminating the problem of unequal participation in the electoral process, then, S. 350 magnified the problem, and in so doing paradoxically provided a perfect illustration of why just such a law is necessary. Unequal money = unequal participation.

As I also mentioned, you can’t claim that the economic inequalities produced by Section 350 had a negative impact on citizens’ abilities to participate in the most current election, while at the same time claiming that the economic inequalities in general don’t have a negative impact on citizens’ abilities to participate in elections. It is very clear that they do. Not because hearing the same ad over and over manipulates or oppresses individuals into voting for a particular candidate, but because you never get to hear any other ads.

So, what can we do about it?

How to reconcile Section 2 (freedom of expression) with Section 3 (‘fair elections’ and ‘meaningful participation’)Ultimately I think limiting election spending is the answer, but it has to be at a higher level than is currently the case. TV and radio ads should clearly be in reach of anyone who wants them.

I think if the limits are raised the restriction on speech is justifiable under Section 1, since limiting speech can enhance the goals of Section 2. I’m not going to go into the proportionality arguments, because I’m really tired and Canada is about to whup the US in hockey.

Keep in mind, that any third-party can spend as much as they like for four and a half years. It is only during the election that it is restricted. There is absolutely nothing stopping the NCC from having a Daily Anti-Carolyn Parrish ad campaign, for example. The Canadian Taxpayers Coalition is a good example. They seem to have some new case of gross government waste every couple of days or so.

- Jass


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