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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).
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.