Lobbyists' spending curbed

By KIRK MAKIN
Globe and Mail Update

A landmark Supreme Court of Canada has preserved a tight clamp on
advertising by interest groups during election campaigns, ending the
prospect of an election free-for-all in which groups blitz the government
on issues such as the sponsorship scandal or same-sex marriage.

"While the right to political expression lies at the core of the
guarantee of free expression and warrants a high degree of constitutional
protection, there is nevertheless a danger that political advertising may
manipulate or oppress the voter", a 6-3 majority ruled.

Parliament had to balance the rights and privileges of all the participants
in the electoral process.

The case involved a Charter challenge by the National Citizens Coalition to
federal laws restricting the amount of money spent and influence exerted by
corporations, interest groups and lobby groups during an election campaign.
The NCC  led by then-president Stephen Harper, now leader of the
Conservative Party - positioned the fight as being one involving the
fundamental right to communicate political views. It described campaign
advertising as the oxygen of democracy in the marketplace of ideas.

The NCC also sought to strike down provisions of the Canada Elections Act
requiring strict records, audits and disclosure of who is behind
third-party spending, as well as a ban on advertising in the 20-hour period
before the close of polls. The federal government, several provinces and
groups such as Democracy Watch and the National Anti-Poverty Organization
argued in favour of upholding the law.

The ruling was hailed as a victory by those who see unfettered third-party
advertising as a licence for wealthy groups to drown out public debate and
threaten free speech. The court agreed with their view that unrestricted
free speech gives a much greater voice to those who possess the means to
exploit it.

"This egalitarian model of elections seeks to create a level playing
field for those who wish to engage in the electoral discourse, enabling
voters to be better informed", Mr. Justice Michel Bastarache wrote for
the majority. "In the absence of spending limits, it is possible for
the affluent or a number of persons pooling their resources and acting in
concert to dominate the political discourse, depriving their opponents of a
reasonable opportunity to speak and be heard, and undermining the voter's
ability to be adequately informed of all views."

The majority said that while the election advertising restrictions violate
constitutional free-speech guarantees, the breaches are justified.

One way or the other, the ruling was bound to dramatically affect Canadian
democracy. Those who fought to uphold the law saw it as vital to prevent
Canada slipping into U.S.-style elections where wealthy private interests
hold the upper hand and use advertising to dominate public debate.

But proponents of wide-open spending viewed it as an affront to free speech
which stifles a wide spectrum of voices and provides established parties
with a monopoly on political debate.

Constitutional lawyer David Stratas said Tuesday's ruling is surprisingly
strong. "In earlier decisions," he said, "the Supreme Court
has been extremely reluctant to uphold any limits on free speech in the
political arena, he said. In this case, it has upheld a fairly severe limit
on free speech by those outside of political parties during election
campaigns."

The most startling aspect of the decision was the majority's willingness to
uphold a fairly severe restriction on freedom of political speech based on
a fear - not solid evidence but only a fear - that political debate would
be unduly dominated and distorted, rather than enriched, by a less
restrictive regime, Mr. Stratas said.

In regard to a specific advertising limit that goes into effect shortly
before election day, the court said it serves the important purpose of
preventing the dissemination of misleading ads that cannot be countered in
the short time available. The blackout period is approximately 20 hours
long and only applies to advertising, the majority said. It has not been
demonstrated to have any deleterious effects.

Chief Justice Beverley McLachlin, Mr. Justice Jack Major Mr. Justice Ian
Binnie dissented on many portions of the ruling.

"The denial of effective communication to citizens violates free
expression where it warrants the greatest protection: the sphere of
political discourse", they said. Because citizens cannot mount
effective national television, radio and print campaigns, the only
sustained messages voters see and hear during the course of an election
campaign are from political parties.

The majority joined with them in cautioning that laws restricting
third-party advertising must be drafted very carefully in order to avoid
stifling legitimate political viewpoints. The majority also noted that for
the most part, third parties have ample opportunity to express their views.
Third party advertising is unrestricted prior to the commencement of the
election period, and third parties may freely spend money or advertise to
make their views known or to persuade others, they said.

Opponents of the NCC argued that only a tiny proportion of the country can
realistically afford to advertise, and that the case was all about whether
wealthy interests can blanket newspapers, magazines and the airwaves with
propaganda and U.S.-style attack ads. If the NCC were to win, they said,
political parties would be able to legally circumvent election spending
limits by simply allowing sympathetic third parties to do their advertising
for them.

The most contentious restrictions limit a third party to spending $150,000
during an election period, and not more than $3,000 of that total on
promoting or opposing candidates in any single electoral district.

The NCC won its case in the Alberta Court of Appeal, largely by arguing
that there is an utter lack of evidence to show that any election process
has yet been unfairly skewed by unregulated spending on third-party ads. It
criticized the federal government for invoking high-sounding ideals of
fairness and equality without being able to show specifically how its
restrictions would help these vague goals.

A key to the case was whether the NCC could convince the Supreme Court that
third-party spending issues were not effectively settled by a 1997 case
known as Libman v. Quebec, in which the court ruled on how much the Yes and
No sides could spend during Quebec's referendum. The court ruling in that
case made it clear that third-party advertising could unsettle the fairness
of the campaign process and potentially skew the result. It cited the
Libman ruling prominently on Tuesday to back up its ruling.


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