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May 3rd, 2015

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[Welcome, National Newswatch readers!]

Pointing to the need for a couple of common sense amendments to the Canada Elections Act, the three currently vacant House of Commons seats will be undergoing by-election campaigns from now until the writs for forthcoming general election are issued sometime in the early fall.

Wednesday would have been the last day to call the federal by-election for the Peterborough, ON seat that former Conservative-turned-Independent MP Dean Del Mastro resigned tearfully six months ago after first being found guilty of charges under the Elections Act. So the PM called by-elections Sunday for the fixed general election date of October 19, in all three vacant seats: Peterborough, Sudbury (which was vacated by Ontario Liberal convert Glenn Thibeault), and Ottawa West-Nepean (open after the early retirement of John Baird).

But one of the consequences Parliament ought to have considered, when adopting our federal fixed election date law, was the impact on by-election call requirements. Right now, a by-election must be called within six months of a vacancy, no ifs ands or buts, but there is no limit on the length of the campaign. This is why the by-election had to be called in Peterborough now and the other two in coming months, but the writ was able to be so long as to take us all the way into the general election this fall.

Yet, if a vacancy occurs within nine months of the fixed election, is this really necessary? It creates an unnecessary expense and more administrative tasks than you might think, and accomplishes perhaps very little in the end. It would be one thing if we required all by-elections to be called automatically within a month of a vacancy, a position that has a LOT of merit in my opinion. But given our current six-month-to-call requirement, and a potentially endless writ, calling a by-election seems pointless.

Instead, the Prime Minister is obligated to call at least the Peterborough by-election now, and Sudbury shortly, so why not throw in Ottawa West-Nepean into the mix. And once that happens, under the Elections Act, Elections Canada *has to* ramp up all the machinery and work-plans necessary to run a by-election in each of those three ridings (note: on the OLD boundaries, too), as do the parties and candidates.

This has happened before: for example, when Jean Chrétien appointed then-Liberal MP Mac Harb to the Senate, it opened up a by-election in Ottawa Centre that went on for a long time, but got superseded by the 2004 general election. Four years later, the current Prime Minister called four federal by-elections in the summer of 2008 in a set of three Liberal seats that had been opened to allow new blood into their caucus, plus a Bloc seat freed up by an MP who got elected provincially. But, according to Paul Wells' reporting at the time, when it started to look like the NDP's Anne Lagacé Dowson would beat the Liberals in Westmount-Ville Marie, the PM decided to call a general election instead. All four by-elections were cancelled and rolled into the general.

Now, just because the current set of by-elections will be cancelled in the end, it doesn't mean that parties and candidates won't be subject to Elections Act provisions while they're on-going, starting right now. Candidates will need to be nominated with the Returning Officer, which involves obtaining signatures and securing an Official Agent and Auditor. And *no* EDA or candidate spending can take place in those ridings until that's been done, plus all contributions and all spending will be subject to expenditure ceilings and reporting to Elections Canada after the fact. In fact, if you check and see at the Elections Canada website, you can find election returns from those aborted September 2008 by-elections.

Also, Elections Canada will have to open and staff local Returning Offices early, conduct any special enumerations, advertise about the by-election, prepare the list of electors and so forth. Moreover, so-called third parties wanting to advocate a vote in favour or against a candidate or party in that riding through advertising, will have to register and report their contributions and expenditures under the Act as well. Everyone in those ridings will be subject to those Elections Act provisions, starting now.

Given the experience in 2008, some amendments were made to the Elections Act already about what should happen when a by-election was superseded. Previously everything had to be shut down and transferred to central party campaigns, and independent candidates were particularly harmed because they had to shut down their campaigns and start over completely from scratch, which everyone agreed was unfair. Again, if you look at who was nominated in those by-elections, and who survived into the federal general election, very few of the independents were able to carry over.

But financially these by-elections will be different from those 2008 ones in one other very important way as well, because of amendments made in the so-called "Fair" Elections Act amendments which came into effect this past December. These were the changes made to the expense ceilings – which I mentioned before – such that the limits would increase proportionately with the length of a writ. Right now, the spending limit for each riding will be calculated based on the number of electors, times the inflation multiplier, but then augmented by 1/37th of that amount for every single day beyond 37 days. With today's by-election call, we're at 169 days until October 19, so that's a spending limit of four-and-a-half times (169/37) what it would have been before.

That's right: an expense ceiling of around $400,000 per candidate, all of which can be spent before the writ for the general election is issued, all rebatable at 60%, and that's not counting the central party limits for the by-election ridings either. Say four candidates per riding, over three ridings, and you're looking at $6 million dollars in allowable, rebatable candidate election expenses. And then, once the general election is called and the by-elections are cancelled, the meter resets all over again, making for a ceiling of up to half a million dollars per candidate if you could raise and spend it all.

This is crazy. For one thing, the parties should get on the phone with one another Monday morning, and agree not to get into such a crazy arms race for nothing, for example by agreeing to a spending ceasefire until the general election writ is issued.

For another, the next Parliament had better sort out the rules on the calling of by-elections. No more gaming out the calls by the Prime Minister. If a vacancy occurs, the Act should be amended to authorize the Chief Electoral Officer him- or herself to set a by-election date within a month (as is currently done in the UK and other places), and give a teeny bit of discretion to work around holidays and religious holidays. Of course this will in turn cause MPs to reconsider and game out their retirement dates a bit too, but that's an acceptable trade-off to me.

On the other hand, if we are stuck with the PM picking a time to call by-elections, between 11 and 180 days after the vacancy is reported to the Chief Electoral Officer, as is currently the case, then two amendments need to be made to the Act:

  1. If a seat becomes vacant in the same calendar year as the fixed election date is scheduled to occur, it must be called within a month, or if it occurs within six months of the fixed election date, not called at all.
  2. There HAS to be a maximum length set for an election campaign, if spending limits are set to increase proportionately with the length.

For the record, the 2011 expense ceilings in each riding were as follows:

  • Peterborough – $95,208
  • Sudbury – $84,346
  • Ottawa West-Nepean – $88,802

Multiple them each by 169/37 to get the approximate current by-election limits. Then add in a whole other general election's worth of permitted spending on top of that. Multiply by the number of candidates likely to spend the limit. That is one whole helluva lot of campaign spending just to go through the motions of trying to replace 3 MPs for nothing.

Obviously the Act needs to be amended; and maybe next time the government will allow the Commons and Standing Committee to take the time to study all the provisions and implications properly. Oh well, we can always dream.


7 Responses to “Federal by-elections will be all paperwork, no voting day, plus huge expense ceilings”

  1. Diane Marie says:

    Excellent report.

  2. Peter Zaduk says:

    This means that if somehow Dean Del Mastro runs again this time he can spend pretty much anything he wants.

  3. David Gussow says:

    Great post as usual. There’s one point that would have to be cleared up first. The fixed election date law doesn’t actually provide that the election has to be held on October 19th. Just as it has been advanced (2008, 2011) it can be deferred. Advice is still required for the Governor General to dissolve the current Parliament.

  4. jeremy carver says:

    Great analysis. Has anyone considered the disenfranchised voters who will not be able to vote because or riding boundary changes? Those of us in North Kawartha are not in the
    OLD riding of Peterborough (so can’t vote in the By-election) nor in the new riding of HKLB. So if the general election is on Oct 19th it seems we will note be able to vote anywhere!

  5. Oh, Jeremy, that’s not the case. The by-election on the old boundaries will be cancelled when the writ is issued for the general election, and the voting will take place on the new boundaries. So you’ll be able to vote, don’t worry!

  6. Michael Powell says:

    Also of note: while spending limits increase, donation limits do not. If candidates do get involved in a protracted spending race, they’ll still be limited to the same $1,500 donation limit. So, they might be able to spend as much money as they want, but there are practical limits to their ability to raise it to fight a protracted war, particularly if they want to be able to fight a full race during the general.

    Taking a quick look at Ottawa-West Nepean, it doesn’t seem that parties have come anywhere close to being able to raise that on an annual or in-election period, even to Baird.

  7. Michael, that’s an excellent point. But on the other hand, the central party and/or neighbouring ridings could also transfer funds to them.

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