Elections Act targets phantom problems
To make sense of the many disparate provisions in the Conservatives’ sprawling 242-page Fair Elections Act, the first question to ask of each is not whether it is good or bad, but what problem was this intended to solve?
God knows we have enough real problems with how we run elections. The bill was born of the mess of the 2011 election, with its multiple allegations of voter fraud, including but not limited to the infamous robocalls affair: still unsolved, two years later, despite a Federal Court judge’s finding that, indeed, mass fraud had occurred. A partial list would also include the vast and needless expense of modern election campaigns, and the consequent diversion of party energies, rhetoric and policy to the ceaseless quest to raise funds. And, despite or perhaps because of all of these frenetic efforts to “reach out” to the electorate, the constant decline in turnout.
But that is not, apparently, how the Tories see it. Rather, the bill seems motivated by an entirely different set of concerns.
Take the battery of provisions aimed — that seems the appropriate word — at Elections Canada, the government agency responsible for running elections and enforcing their rules. Frustrated by the slow progress of the investigation into the robocalls scandal the chief electoral officer had asked for greater powers, notably to compel evidence from witnesses: a draconian measure, but not unknown in similar circumstances.
The act gives him none of these, responding instead by hemming in the powers of investigators on all sides. For example, they would be required to notify subjects that they were being investigated: an unusual provision, to say the least, even if an exception is made where this would compromise the investigation. Even more remarkably, the whole of Elections Canada’s enforcement operations, under the commissioner of Canada elections, would be removed from it and transferred to the director of public prosecutions, within the Justice department. This would make it accountable, not to Parliament as it is now, but to the government.
Whether this would make any practical difference to how election irregularities are investigated is an open question. What’s of interest here is what it reveals of Tory thinking. That is, the problem it was intended to solve would seem to be that the elections investigator was too powerful, too dogged, too independent.
This is a nervy position to take for a party that has itself been the frequent subject of Elections Canada investigations — that was indeed found, by that same Federal Court judge, to have done everything it could to thwart the case in front of him, notwithstanding that its own database was used in the fraud.
But it fits with the broader Conservative theme, heavily reinforced to its own supporters, that Elections Canada is just another of the seemingly limitless list of agencies, institutions and organizations that are out to get them. If the Conservatives have more often been the subject of investigation than the other parties, it is not because of any problem with the culture of the party under its present leadership, but merely confirmation of this insidious and all-pervasive bias.
As the Minister for Democratic Reform Pierre Poilievre put it, “the referee should not be wearing a team jersey.” This is an outrageous insinuation. If Poilievre has evidence of bias at Elections Canada, he should provide it. But the mere act of investigating is nothing of the kind. (The minister’s claim that “it is normal to separate administration from investigations” would be news to, say, the Ontario Securities Commission, the agency that, as its website informs us, “administers and enforces securities law” in the province.)
Or take the several provisions of the Act related to campaign finance. The ceiling on individual contributions would be raised by 25 per cent, with further annual increases to follow. Party spending limits would likewise be bumped up another five per cent, while certain campaign expenses — incurred in raising funds from previous donors — would be exempted altogether. In this case, the problem the bill was intended to solve appears to be that parties do not spend enough money.
But this is absurd. Parties have never spent as much as they do now.
Yet mass communications have never been as cheap: an email blast, for example, costs next to nothing, while websites, social media and viral videos offer similarly cost-effective ways for a party to get its message out. The only reason any of the parties needs to spend so much is that all the others do, but since most of what they spend it on goes to things that hurt democracy, from attack ads to push polls to robocalls, we’d all be better off if they spent much less. They might then be freed to devote more of their efforts to attracting a broader range of voters, rather than working up their existing base of donors into a contributory lather.
A third element of the bill is even more curious. Among the other constraints imposed on Elections Canada, the agency would be forbidden from running campaigns encouraging people to vote: Its communications with the public would be restricted to providing information on the location of polling stations and the like. Again, the efficacy of previous such campaigns is open to debate. But why go so far as to legislate against it? What is the problem this is intended to solve? Apparently, that turnout is too high.
It’s a bizarre bill. But the government is plainly proud of it: so proud that it refused to consult with the chief electoral officer on its contents; so proud that it is now being rushed through Parliament with a bare minimum of debate, using the government’s power of time allocation. And what problem was that intended to solve?