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Will local government election rules silence the public?

21 October, 2013

Local government elections should be about communities discussing their problems, and electing people who will address those problems.  Making a home-made lawn-sign or printing a few leaflets should be a basic right. 

Unfortunately, major changes being considered for the Local Government Act would require not just big-moneyed advertisers, but just about anyone who wants to speak out during a local government election (beyond sharing their personal views with a few friends), to register.  A government consultation period for these and other proposed changes to the local government elections process ends Wednesday (October 23rd)

We understand and support laws that require transparency for “third party election advertising”– where there is an organized campaign to influence the result of an election.  But these changes to the law, modeled on similar contentious requirements found in the BC Election Act (which are currently being challenged in court as unconstitutional), will silence the grassroots, while posing little problem for large-scale, politically sophisticated advertising campaigns. 

The Canadian Centre for Policy Alternatives has written about the impact that these type of provisions had at the provincial level last election:

Bill 42 had significant and disturbing impacts on public debate in the lead-up to the 2009 provincial election, particularly for “social movement organizations:” charities, non-profits, coalitions, labour unions and citizens’ groups. These problems resulted from features of the third party advertising rules other than the spending limits themselves… Bill 42 sparked heated media debate and a strong public reaction, mostly focused on how it would affect the speech rights of “big spenders” like corporations and large unions. Indeed, the new third party advertising rules were created, according to then-Attorney General Wally Oppal, to ensure electoral fairness — to level the playing field so those with the deepest pockets cannot dominate the election discourse. Contrary to this objective, however, the rules also extensively regulate the activities of “small spenders” — individuals and groups that spend little or nothing on election advertising.

So what do the new rules say?

There are two primary problems with the third party advertising rules as proposed. 

The first is the vague definition of “election advertising”.  The main part of the definition reads:

[E]lection advertising is the transmission to the public by any means, during the campaign period for an election, of any of the following:

(a) an advertising message that promotes or opposes, directly or indirectly,

(i) the election of a candidate, or

(ii) an elector organization that is endorsing a candidate or is an established elector organization, including an advertising message that takes a position on an issue with which the candidate or elector organization is associated; [Emphasis added]

There are a few exceptions – such as an exception for an individual sharing his or her personal views by phone, texting or the internet (but not, surprisingly, through T-shirts or lawn signs) – but to a large degree the exceptions just emphasize how broad the definition is. 

A key term here is “advertising message”, which is not, unfortunately, defined.  It would be nice to believe that it’s limited to commercial communications intended to influence the result of the election.  However, an Elections BC Guidance document indicates that the definition of election advertising is “broad” and includes any message that “… was transmitted to the public during the campaign period [and] … was advertising that … take[s] a position on an issue associated with a registered political party or candidate…”

The sections in the Elections BC Guidance document do list other factors which seem to suggest that the focus of election advertising might be taken more narrowly, but it’s hardly surprising that individuals and groups that release public messages about which candidates might take a position were intimidated by their original pronouncement that the definition is broad.  The CCPA found:

The most troubling finding of this research is that a significant number of organizations self-censored in order to comply with the new election advertising rules —including both registered and non-registered groups. In other words, the rules cast an anti-democratic chill over election discourse. As a result, public debate during the months leading to the 2009 BC provincial election did not benefit from the full range of perspectives historically made available to voters by local charities, non-profits, coalitions and other social movement organizations. … Forty per cent of participants altered their normal or previously planned activities as a result of the new rules.

One improvement over the BC Election Act approach is that some of these questions can now be addressed through regulations, but there is no indication that the government plans to pass regulations that would limit the scope of this overbroad definition. 

To be clear, we think that a court would probably interpret this vague terms “election advertising” and “advertising message” as only referring to advertising with the purpose of influencing the outcome of an election.  However, it would be preferable for the proposed rules to make this crystal clear. 

Everyone for themselves, said the elephant

The second issue with the approach is that it applies – relatively equally – to everyone, from the largest public relations company to a property owner that wants to put a home-made sign on their front lawn (note: official campaign signs would be covered by the campaign sponsorship – it’s home-made signs or other communication tools which would seem to require an individual to register as a sponsor).  Rules that seem reasonable for regulating mining interests may seem a bit intimidating to a small grassroots group that forms around a particular community concern.  A quote attributed to Charles Dickens (and Tommy Douglas) says: “Every man for himself, said the elephant as he danced among the chickens.” 

Examples of some of the new rules are:

  • Everyone who is carrying out “election advertising” needs to register, and that means filing a form with Elections BC.  If that’s not intimidating enough, the proposal would require anyone who applies to certify that she “understands the requirements and restrictions that apply to the applicant under this Act” – I can see that being a wee bit intimidating to someone not trained in the law, who may not have a lot of experience in dealing with technical language.  I find some of these provisions confusing as a lawyer!  If the person is applying for an organization, she also takes on personal legal responsibility for complying with the Act if her organization subsequently disbands. 
  • Everyone who has registered needs to file a disclosure report.  This is a change from the BC Elections Act, which only requires disclosure if you spend more than $500 on elections advertising.  The content of a disclosure report will apparently be less onerous for people who spend less than $500, although the specifics are not yet available. 
  • If an individual or group has received funds or items of value from anyone to support their campaign, the disclosure report needs to disclose the identity of anyone who gives $100 or more. This is in contrast to the BC Elections Act where $250 was the limit, and only donations received 6 months before the election period need to be reported. 

If it were clear that these rules applied only to advertising that’s intended to influence an election, these requirements would not be unreasonable for medium- to large-scale campaigns.  But think of how intimidating this would be for an individual, or group of individuals, perhaps without much experience in making their voices heard, seeking to raise a local concern in the context of a municipal election (which is supposed to be an opportunity for those sorts of discussions). 

Provincial vs. Local

It is not clear from the White Paper that the government has considered the relationship between local election advertising and regional or province-wide advertising.  Does a provincial level organization that is advertising on an issue have to monitor all local government elections to ensure that their issue does not become affiliated with a candidate somewhere in the province?  The absurdity of that may be a reason to interpret the apparently broad definition of election advertising narrowly – as only including advertising that is intended to influence election results.

Conclusion

These proposals do not recognize the intimidation that technical requirements – and especially vague technical requirements – pose for local individuals and groups that may not have a lot of experience with dealing with government.  

We hope that the Ministry of Community Services will recognize that not all public discourse is third party election advertising – even during a local government election.  Some of it is just good, old-fashioned, genuine democracy. 

By Andrew Gage, Staff Lawyer