Don’t bash Elections Canada for doing its job
Elections Ca nada must enforce the law as it is. — Colby Cosh
There has been chaos in the Canadian funhouse this week after it came to the public’s attention that during federal elections, Canadian law imposes reporting requirements and spending limits on “issue advertising” that is not explicitly partisan. Elections Canada has been warning environmental groups that because Maxime Bernier’s schismatic People’s Party is “associated with” climate skepticism, the Elections Act may be engaged by any paid advertising published during the official campaign period that “takes a position” on man-made climate change.
Most of the usual activities of awareness-raising groups would be exempt under the law: it explicitly allows for “the transmission to the public of an editorial, a debate, a speech, an interview, a column, a letter, a commentary or news.” But if a group spent more than $ 500 after the writs were issued on things like posters, tweets or broadcast advertisements, it could become a “third party” subject to registration and financial auditing.
Man-made climate change may be a fact, the Chief Electoral Officer explained in a statement Tuesday, but “The ( Canada Elections) Act doesn’t speak to the substance of potential third party issue advertising, nor does it make a distinction between facts and opinion. It is not Elections Canada’s role to make that distinction, no matter how obvious it may appear.”
Some of those annoyed by this attitude seem to feel that they would, in fact, like the election agency to become a court- like trier of fact ( one which then dutifully proceeded to endorse all their own personal beliefs). The Green party’s Elizabeth May said that it would be “lunatic” for Elections Canada not to withdraw its advice, and she knows her lunatics. Very few seem to have reached the conclusion — yet — that perhaps we should not be regulating nonpartisan election advertising at all.
We are all familiar with ads (produced by “third parties” like unions or business groups who have gone to the trouble of registering) that obviously target one side or another in an election by mentioning issues without naming any party or candidate in particular. This is seen as a species of gamesmanship, but maybe it is gamesmanship that ought to be go unregulated in the name of free speech, and we can restrict campaign- spending
regulation only to partisan ads, ones that actually come out and say “Please vote for literally anybody else other than that zany Max Bernier.” ( The $500 limit, if we are to have one, also seems mystifyingly low.)
The alternative that we are living with requires Elections Canada to be necessarily blind to the fact- opinion distinction; perhaps more troublingly, it requires the making of potentially tricky distinctions between education and advertising, and one can also foresee some trouble in those ill- defined words “taking a position.” To be honest, however, the exemptions in the law seem to allow lots of latitude for gamesmanship of the kind the law is explicitly designed to condemn. Anyone who wants to intervene in the election by means of advertising can produce it the form of a contrived debate or letter. Social media is already nauseatingly good at facilitating fake controversies between Goodperson99551023 and Nastyfascist61845002, and the vulnerability of newspaper editorial sections to free advocacy is well known.
However we organize the regulation of political speech during an election campaign, the regulations will be gamed. The thing we should fear most — the very thing that Elections Canada is being rubbished for avoiding — is the creation of a list of approved opinions ( or “statements of fact”) that escape regulation. If you think this would be all right as long as the list contained only one item — that there is a climate emergency and the world is burning to a cinder — and that this sanitizing procedure would stop for all time after only one respectable opinion received an unlimited advertising licence, you are surely a greater lunatic than any of the madmen that dwell in Liz May’s imagination, or even on the list of Green party election candidates.
Elections Canada must enforce the law as it is, however ineptly it has been written, and when we are finished saluting them for doing this, we should remember that we really do not want the law to be rewritten to contain some papal index of opinion acceptability. It might be added that the election agency has attracted these criticisms only because it is giving advocacy “charities” free guidance, for their own welfare and far in advance of the actual election period, on the inane niceties of election regulations. Do we want to hurl imprecations at Elections Canada for engaging in prior instruction of the public on the letter of the law, rather than merely enforcing it once a possible violation had been spotted? One hopes this sort of intemperate behaviour will be rewarded better than it deserves.