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July 1st, 2015

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The law of unintended consequences is getting quite a workout with these – legally necessary – but otherwise totally pointless federal by-elections.

[Welcome, National Newswatch readers!]

The fact they weren't called long ago, but now have to be called this close to a fixed election date, the fact that the spending limits are obscenely huge because of the long writ and the new pro-rated ceilings, the side effects on the pre-writ activities of political parties and the so-called third parties — none of these outcomes were anticipated by the parliamentarians charged with studying the various bills amending the Elections Act, which were characteristically rammed through Parliament by the out-going government, without taking much if any advice from our internationally-recognized independent election adminstration body, Elections Canada, nor meaningfully consulting the other political parties.

Certainly the interplay between the local candidates' by-election expense limits, the national parties' by-election expense limits, and the absence of pre-writ spending or registration restrictions was largely unanticipated when the bills were adopted. But it explains why, to date, no Conservative candidate has been formally nominated with the Returning Officers in the new ridings, a development first reported by the Ottawa Citizen's Glen McGregor the other week. No New Democrat has been registered either as yet.

It's true the candidates were already nominated by their riding associations (or in the case of the Conservative in Peterborough, will be at the contested nomination scheduled for July 14) and are already campaigning for the general election.

But to get your name on the ballot, access voters lists, and start spending potentially rebateable dollars under the by-election expense ceiling, you need to complete the second step, which is to get formally nominated with the local Returning Officer. In the eyes of the law, you are not a candidate until you complete that step. Spending limits for parties in by-elections don't kick in either until they endorse one or more candidates in the by-election ridings.

Registering and getting formally nominated as a candidate, in a by-election that will never be held, is pointless if you don't want to be constrained by spending limits and you don't care if your pre-writ expenditures are rebated.

More importantly, it would hurt your party if they wanted to run national ads pre-writ, because for any ads in media markets reaching the by-election ridings – Peterborough, Ottawa West-Nepean and Sudbury in Ontario – the cost of airing those ads PLUS their entire production costs would have to be included under the expense ceilings. Which would put quite a damper on the Conservative Party's pre-election advertising plans.

But by keeping their candidates OUT of the by-elections, the Conservatives have instead opened themselves up to unfettered advertising by any outside group urging their party's defeat.

Just as a candidate is not a candidate under the law until nominated with the Returning Officer, a third party is not a third party under the law until its activities fall under the Act. If a group that was not a political party advertises in favour of the election of one candidate or political party, it becomes a third party and falls under the Act. If that group advertises against the election of a candidate or political party it also becomes a third party and falls under the Act as well.

But if a group only advertises against the election of someone who is NOT currently a candidate under the Act (ie, someone who is nominated by their party for the general election, but not nominated with the Returning Officer for the by-election) or only against that candidate's political party, then they are not a third party under the Act either. Meaning no registration with Elections Canada, no expense ceilings, and no financial disclosure reports are required of them.

So, now we realize there's a strategic choice involved in a political party deciding whether or not to nominate its candidates for the pointless by-elections currently in progress:

  • Option A – my party wants maximum latitude to conduct pre-election advertising and can afford to spend unrebated dollars locally, and that is a more important strategic consideration than avoiding negative attacks by third party advertisements: therefore don't register by-election candidates
  • Option B – my party would like to restrict third party attacks against us and our candidates, and that's a more important strategic consideration than being able to spend without limit on pre-writ ads: therefore DO register by-election candidates. Bonus: there is probably no way our candidates will be able to spend the by-election ceiling locally, but at least all of that spending will be subject to a 60% rebate

The Conservatives seem to be choosing Option A, while the Liberals – who have registered by-election candidates in both Peterborough and Sudbury – have chosen Option B. I haven't seen any NDP pre-election TV ads in the Ottawa area myself, but then they haven't registered any by-election candidates to date either, so the jury's out on which Option they are picking or are just agnostic on the whole matter.

Working Canadians, the CFIB-linked third party, has been running anti-Trudeau radio ads in parts of the country, but would not be able to do so in the radio markets reaching the three by-election ridings unless it was to be subject to the expense limit for third parties (which again includes all production costs as well as the market value of the buy). Engage Canada, the group formed by former Liberal and NDP operatives, has been running anti-Conservative TV ads in parts of the country, and I've definitely seen them on national channels that reach Ottawa.

The short-lived "HarperPAC", which seemed to have been quickly struck (one of the members was until last month the Attorney General of Alberta) and poorly thought through, disbanded within a week of announcing its formation, in the wake of criticism by Conservative Party spox Kory Teneyke. It had a radio ad attacking Liberal leader Justin Trudeau for something trivial that had happened in the news the day before or something, which did not seem to have been researched or focus-group'ed at all. The bigger problem for the HarperPAC – as reported by Ricochet.media – is that by attacking the Liberals it would have been a third party for the by-elections under the law, but would not have been eligible to register as a third party because its name sounded too much like the name of a political party or candidate, which is forbidden under the Elections Act. Like I said: amateur hour, and best put out of its misery as quickly as possible.

So, we understand the strategic options for the major political parties in registering or not registering by-election candidates, and what the implications are for outside groups wanting to advertise pre-writ.

But why then would a brand new, tiny, Québec-based indépendentiste party want to nominate a candidate in a federal by-election in an Ontario riding?

UPDATE: I'm being questioned on my assertion that Forces et Democratie is an independentiste party. It's leader and co-founder is an independentiste and previously ran for the leadership of the Bloc Québécois, but the party's vision does not specify any such national project, but rather deference of central governments to the regions of the province of Quebec.]

It makes no sense, right, unless you understand another part of the Elections Act which governs the registration of new political parties.

If you want to form a new federal political party, you have to meet a number of governance requirements (threshold of paid up members, party leader in place, financial officer, auditors, etc), and once that's done the Chief Electoral Officer declares that your party is "eligible for registration". You have certain rights and responsibilities under the Act, but the thing you cannot do until you're actually registered is issue tax receipts for political contributions. If it weren't that way, anyone and her sister could just create a political party and start fundraising for taxpayer supported dollars, but political parties play a critical role in our electoral system as the chief recruiters and funders of candidates for elected office, which shouldn't diluted by any old huckster or flying yogi.

In fact, eligible parties who are not yet registered parties have to specifically remind potential contributors that their contributions will not be eligible for a tax receipt (see highlighted section on the screencap from F-and-D website below).

Screen capture of the Forces et Démocratie website donation page, July 1, 2015

Can you guess yet what's the critical step for moving from eligibility for registration as a political party to actual registration? That's right: you have to successfully nominate one candidate for one electoral event. And for Forces et Démocratie, the newly-formed Québec-based indépendentiste party founded by an ex-Bloc MP and an ex-NDP MP, their new hero is Trent University masters student Toban Leckie.

By getting nominated for this Ontario federal by-election, Leckie will be permitting Forces et Démocratie to soon start raising taxpayer supported political contributions, rather than waiting until their first general election nomination in September. I don't know if he realized this himself, or if so whether he informed the 100 or so signatories he'll need to get on his nomination papers that they'll be enabling not just his own quixotic candidacy in a by-election that will never be held, but the ability of a brand new political party whose main focus is Québec to significantly improve its fundraising position pre-election.

Don't get me wrong here: I'm not Québec bashing, I'm not separatist bashing, and I'm not even criticizing F-and-D for doing what they're doing, nor any of the other actors in this entire by-election mess. Everyone is behaving perfectly legally, given the complete hash Parliament has made of our Elections laws recently. Another of the "eligible political parties", "The Bridge Party" has also used the same provision of the Act to nominate Karim Rizkallah in Ottawa West-Nepean.

And I'm not saying it's job one for a new government to kick off a better process to fix this all, but it's surely in the top 100. Because the constant gaming of the system, the constant ramming of bills through Parliament without consideration of their constitutionality or practicality, is what's responsible for the current completely farcical mess.

If you support a fixed election date, think through what ALL the implications of that are. If you want pro-rated expense limits for longer writs, consider whether there should be any limits to them or the writ length at all. If you want to control political party, government, and third party advertising and promote transparency in the pre-election period, think that through as well. There is also a looming crisis in political finance after the next election, since most parties have been unable to fully replace the per-vote subsidy in their fundraising efforts, but could now face election campaigns with unknown and unknowable expense ceilings, given the new pro-rating of the spending limits. It would not surprise me at all if that was in part the motivation for a group like Engage Canada to intercede and try to prevent the re-election of a Conservative majority government, which would soon have no adequately-financed opposition at all.

If it were not a third rail in politics these days to suggest another Royal Commission on Electoral Reform and Party Finance, I would say it might almost be called for: to maintain our distinctive Canadian democracy, and avoid the worst pitfalls of the US permanent campaign. At the very least, amendments to the Elections Act should receive far more attention and study from Parliamentarians than they are now.

Happy Canada Day, everyone.


17 Responses to “UPDATED: Why a new Québec-based party is running in the Peterborough by-election, and other unintended consequences of sloppy law-making”

  1. Greg Vezina says:

    First, there is no need for another Royal Commission, we should implement the recommendations of the LORTIE Royal Commisision as virtually all of them were ignored.

    Second, the biggest benefit and barrier to entry into and winning in politics is money and Federal tax credits for political contributions are not refundable and therefor women, seniors, the disabled, immigrants and the poor, who have lower or no taxable income and do not qualify whereas men, especially white men, qualify in much higher numbers. Mike Harris made them refundable in the only province in Canada, Ontario that does, in 2000.

    http://www.taxtips.ca/filing/provincial-political-contribution-tax-credit.htm

  2. Greg, I agree that more of the Lortie Commission recommendations were deserving of implementation at the time. Its major focus was the impact of the Charter of Rights and Freedoms that was about to come into force on the electoral process. However, I would argue that the technological advances since then – along with the introduction of the permanent campaign – could render some of the assumptions behind those recommendations moot, and perhaps the whole biznak needs a second look.

    You do make a good point about making the political contribution tax credit refundable federally. Thanks!

  3. Shadow says:

    In favour of eliminating all the tax credits and rebates entirely actually. Glad per vote subsidy is gone. Saves taxpayers money. Donors should be giving to actual charities. It would be one thing if money was going to civic engagement and education but it all seems to be spent on dumbed downed attack ads. That’s from all sides be it Engage or the CPC.

    Greg I can tell you that disadvantaged people organizing themselves and others to vote be it at work breaks or on transit is far more effective than white men’s donations. Money is not needed to participate in an election.

    But you see the problem with commissions and experts ? People of good faith will always disagree on exactly how our system should run. In the end decisions made by politicians. Process should be open and thoughtfully done but not everyone will be happy. Consensus is great but its the gov’t of the day that really calls the shots.

  4. Purple Library Guy says:

    Shadow, I think you’re dreaming in Technicolor. There have been some times and places where people organizing have triumphed over money in elections. But it’s very much an uphill fight and I don’t see why we should make it even tougher by making it as easy as possible for the rich to dominate the process, which strikes me as the effect of your suggestions.

    I’m not married to the per-vote nature of the subsidy. Makes it particularly hard for new parties. I wonder if some formula taking into account both votes and number of party members might be better. But public funding for election campaigning combined with strict limits on what other money can be spent is something I definitely support. In general, while as the Guide says the details need to be sweated out (true of a lot of legislation, which is why the general Conservative push to eviscerate the committee system is terrible for governance), the broad objective should be as much as possible to keep both dollars and those damned amoral PR sharks from having too big an influence over Canadian decision-making.

  5. Shadow says:

    Purple Library Guy the older, wealthier people making these donations also vote at much higher rates. Money without organization fails, see corporate gifts to PC’s this cycle. A lack of money isn’t why progressive parties lose its because their voting blocs don’t turn out on e-day.

    What we need right now is further restrictions on third party advertising and these new PACS. Its an astounding loophole that’s emerged with fixed election dates. Also need to clamp down on self funding and leadership loans. Adding further gov’t money back into the system because you think it’ll help a particular set of parties is really distasteful and bad for governance.

    Finally, head scratcher to see how getting rid of tax deduction for donation would help the rich dominate. CPC lead donations and takes advantage of this more than anyone. But once again … decisions around financing and election laws should NOT be made on the basis of what party benefits.

  6. Ann says:

    except… F and D’s candidate Toban Leckie isn’t attempting to run in the byelection (which isn’t happening). He’s announced his candidacy for the fall election.

  7. Purple Library Guy says:

    Shadow, the richer you are, the more you can afford to donate despite lack of a deduction. Then you want to eliminate public funding so as to make sure parties depend on private money from those who can afford to donate. And it doesn’t really sound as if you want limits on donation size or campaign spending. So yeah, formula for the rich to rule.

    As to “A lack of money isn’t why progressive parties lose its because their voting blocs don’t turn out on e-day.” Yeah, and their voting blocs don’t turn out on e-day in part because of all the money spent by other parties. Look, if money had no impact on elections the world would be a very, very different place. But in fact studies are pretty clear on this: While there are exceptions, the tendency is very strong for the competitor with more money to win, and the bigger the discrepancy the greater the chance. US elections in particular are fought almost entirely on dollars, but it’s true elsewhere as well. So the less money in the elections, and the more things to even the playing field such as public election funding, the less the ability to buy the election. At that point we can talk about organization.

    As to what party benefits . . . well, I take it as bedrock that we are interested in democracy, which is to say rule by the demos, the people. One person one vote, but also some equivalence between people in their influence more generally. If we’re in favour of elite-controlled electioneering, that is a dilution of democracy. Now it so happens that parties whose ideologies favour elites are likely to lose from an increase in democracy so reforms that increase democracy would tend to disadvantage them. Too bad.

  8. Shadow says:

    Purple Library Guy the list of wealthy people who have tried to buy their way into power and failed in the US is very long. Those who have raised large amounts through fundraising have been successful. So clearly the variable isn’t money, its the grassroots support and effective organizing.

    I was very clear above that I prefer less money overall in politics. None of this national campaign, leader centric ad based consultant heavy politics. Side note – PR would make this so much worse. We need a return to riding by riding local candidate based politics.

    So yes the limits on personal donations should remain. Public funding is already out. Time to get rid of the PACS, the tax rebate, and the candidate expense rebate.

    Anyways very complex issue. No easy right or wrong way of doing things. No clear left/right, rich/poor divide. Tons of options and approaches to be carefully considered.

  9. Danny Handelman says:

    The influence of money would decrease in politics with proportional representation, as the parties which traditionally have had smaller budgets and received a lower proportion of the popular vote would be more likely to be amongst the governing parties.

  10. Shadow says:

    Danny we’ll have to agree to disagree. Every millionaire or pressure group can spend huge money to start a ‘movement’, gather e-mail lists and then spin it off into a small political party and win seats. Happens all the time in Italy and other places.

    Everything becomes centralized around the parties. Local, grassroots organizing becomes meaningless. Money dominates as its all branding/image and the leader is all powerful.

    PR and mixed member is like Harper democracy on steroids. For electoral reform second choice balloting until someone hits 40% could be something to look at to avoid winners sneaking up the middle in tight three way races.

  11. Paul McKivett says:

    I agree with Shadow on this one. If we are going to change from the person who has the plurality of votes winning to some other method, then it should probably be a system where a voter’s 2nd and/or 3rd choices are added until the threshold 40% or 50%+1 is reached. That will ensure that constituents still have a direct say in whom their MP is, and will mean that local campaigning does matter. I say this having been and currently are the President of my Liberal Riding Association and a lifetime partisan. It does mean that every vote counts and it does mean that your 2nd or 3rd choice counted even if your first didn’t. PR/Mixed Member simply ensures that power remains in the hands of the party leadership.

  12. You are all intelligent people. But I do not want to see one more person repeat that trope about the party leadership and PR, until they go and look up what the acronym MMPR stands for, and what it means to have MMPR with Open Lists.

    That was the recommendation of the Law Reform Commission.

    And honestly, is anyone left out there who is still fooling themselves that the party leadership doesn’t have influence now? They represent the entire membership in deciding where to spend their resources, so of course they have a role to play.

    I love you all, but this is debate by talking point, not by fact.

  13. Shadow says:

    This convo did have the benefit of demonstrating how Andrew Coyne’s idea of a short lived NDP + LPC coalition to enact voter reform so CPC is never in power again might be a difficult proposition. Very different reforms in mind by both sides.

    I think restoring independence of MPs through official US style primaries open to everyone might be something to look at for the next election. It would solve the ‘open nominations’ mess and there’s be a lot less games played with timing, registration cut offs, etc.

    Also interested in voting for fictional twitter ‘Economists Party’ with mincome and low corporate tax rates.

  14. Danny Handelman says:

    Would one expect that each party would be less influential if the government consists of more than one party? If there were more small parties arising from millionaires, wouldn’t one expect that each party and leader would be less influential?

    Money would also be less influential in circumstances where the urban areas would be more accurately represented (which would occur under proportional representation) due to the declining cost of campaigning per elector as population density increases.

    Each state legislature enacts legislation regulating primaries. So, I don’t perceive there to be a substantive difference between nomination contests and primaries.

  15. Shadow says:

    Danny Handelman talk to Christine Innes or Ches Crosbie who’ve had their candidacy blocked. Talk to Eve Adams’ competitor where the nom is being delayed until her supporter count exceeds his. When the party/leader can play these kinds of games based on who their favourites are it centralizes power in leader’s office.

    A primary has the features of being open to anyone and the date set well in advance. Pretty substantive differences imo.

  16. Danny Handelman says:

    Three candidates out of thousands of possible candidates who have received approval to seek the nomination is not a particularly large proportion.

  17. Shadow says:

    Danny I listed three examples for the sake of brevity. In at least 20 ridings we’ve seen troubled nominations. 20 out of 338 contests impacted may not seem noteworthy to you but keep in mind that doesn’t include all the candidates who didn’t bother to run because they didn’t have backing from a regional powerbroker or know somebody around the leader or in private conversations they were told ‘unity’ was important.

    So a lot of this goes unreported. Make an example out of a few individuals and you set the tone.

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