Don’t slam Elections Canada for enforcing the law.
Many Canadians have been understandably flummoxed, with gusts to outraged, by news that Elections Canada has warned organizations advocating for more forceful action against climate change that they may have to register as “third parties” for the upcoming election, and be subject to limits on advertising expenditures during the campaign. “The climate crisis is objectively real — a fact,” is the common refrain. “Why is Elections Canada cracking down on facts?”
The warning reportedly comes in response to Maxime Bernier’s new People’s Party, whose platform rejects “climate change alarmism.” But it’s tough to say climate change wouldn’t have been an election issue otherwise: The Liberals accuse the Conservatives of denialism, the Conservatives accuse the Liberals of killing jobs, and the New Democrats and Greens assail the Liberals’ and Conservatives’ failure to meet identical emissions targets. And the Elections Act is crystal clear on the question of “issue advertising” (as opposed to “partisan advertising,” which advocates for a party or candidate). Registration and reporting rules kick in for anyone “taking a position on an issue with which a registered party or candidate is associated,” and who wants to spend more than $500 advertising that position.
It is a very dumb and offensive law. But it is also a very clear law, which makes no special allowance for objective facts or global crises. So I’ve no idea why everyone is yelling at Elections Canada. “What Elections Canada is doing is wrong, is harmful to this election and is dangerous to Canadian democracy,” environmental lawyer Dianne Saxe fumed at The Conversation. On Twitter, former prime minister and attorney- general Kim Campbell blithely accused Elections Canada of “misstating the law,” and chalked it up to “incompetence.”
People proposed all sorts of absurd scenarios to illustrate the ridiculousness of the situation. “Suppose a politician decided smoking is good for you,” Green party leader Elizabeth May tweeted. “Would doctors have to register as third parties in an election to stress (the) importance of kicking the habit?”
Quite possibly yes. Which is crazy. And I would say the same if climate change skeptic groups had been first out of the gate complaining: Why should No Carbon Tax Ever And We Really Really Mean It (NCTEAWRRMI), a non-partisan advocacy group that I just made up, suddenly have to change the terms of its outreach to Canadians just because there’s an election on? It’s the same question people are asking now about organizations like Greenpeace or
the Sierra Club or Climate Action Now.
I think many people, however, would see the wisdom in applying these restrictions to NCTEAWRRMI. The necessity of regulating thirdparty spending on Canadian elections has been widely accepted, after all. But you can’t have one without the other. It would be ludicrous and offensive to ask Elections Canada to distinguish between “facts” and “opinions” and “nonsense.”
An obvious place to draw the line would be between advertising that supports candidates or parties, and advertising that doesn’t. I advise aggrieved Canadians to leave Elections Canada alone and demand politicians change the law thusly. That said, there is no reason to believe this outcome clashes with what the designers of the law intended.
In a May 2018 meeting of the Procedure and House Affairs Committee, NDP MP Nathan Cullen very trenchantly quizzed Allen Sutherland, deputy secretary to the Cabinet on governance, about the “philosophical roots” of the new Elections Act provisions they were studying. “If I’m a third party advocate … why should I be more limited than a political party in my ability to spend money legally, to receive money, … to raise the issues that I think are important?” he asked. “Why are political parties so special?”
Sutherland warned of the risk of “unfettered involvement by third parties,” which might “drown out the voices of the political parties” — to which Cullen replied that he hadn’t said anything about “unfettered.”
“We have placed limits on what political parties can raise and spend. We have limits now on what third parties can spend. Why is it so much less (for third parties)?” Cullen asked. “Many Canadians don’t engage in political parties. Less than one per cent have a membership in any of the parties represented in the House of Commons. Canadians voice their views in other ways, much more than they did 100 years ago. Why are we setting a lower limit for that voice than we are for the people who choose to donate through a political party?”
“We’re trying to preserve a little extra space for the political parties by providing some restrictions to the amount of … advertising,” Sutherland replied. “We’re doing it for a limited amount of time in order to have the democratic debate that we need.”
Climate change perfectly illustrates the arrogant absurdity of this mindset: Both main federal parties have dropped the ball on it, and now they’re muzzling non-partisan advocates who demand better. But that mindset is the root problem here: Politicians don’t just privilege their own speech and that of their supporters over the rest of us; we actually have to pay for the privilege.