Tuesday, November 24, 2009

Checking in on the "in and out" litigation

The "in and out" litigation is being heard in the Federal Court this week. This is the one where the Conservatives are seeking to exploit what they believe is a loophole in the Elections Act. It's a gigantic loophole that they're arguing for, actually, one that would essentially render meaningless the federal campaign spending limits on national parties. Their argument is that they can transfer funds from the cash rich federal party into the local ridings and then have the local ridings buy national ads - yet pass those expenses off as locally incurred. This is what they did in the 2006 federal election and in doing so exceeded their national spending limit by $1.2 million. It's why they're in court this week. The Chief Electoral Officer disallowed those supposedly "local" candidate expenses because they weren't in fact locally incurred. This lawsuit is essentially a defensive shield against that Elections Canada ruling.

One of the kickers to this situation is that the Conservatives, who transferred this federal money in and out usually on the same day, want the local candidates to get the local candidate reimbursements for those funds, 60% of which are paid for by the taxpayer. An obscene, aggressive way for the Conservative party to make some extra cash on the Canadian taxpayer's back.

In addition to arguing for the "in and out" loophole, they're also putting forth the argument that the Chief Electoral Officer is essentially a neutered automaton. That is, in this case, they're arguing that Marc Mayrand the CEO had no power to disallow the above expenses, he has no power to investigate any expenses presented to him. This led to incredulity from the judge yesterday who pointed out the existential absurdity then of Elections Canada actually having an audit department that Canadian taxpayers pay for to, you know, assess the propriety of candidate expenses under the auspices of the CEO. The Conservatives even went so far in their defensive maneuvering as to argue that the CEO would have to presumptively certify fraudulent expenses put to him, given that he theoretically has no discretion to reject them. How ridiculous. The CEO would have to refer the matter to the federal elections commissioner for investigation. They must have some legal basis for making this argument but it certainly seems bizarre.

These Conservative arguments are consistent, however, with the Stephen Harper version of Canada. It's one where financially level playing fields in elections are not valued. It's one where Elections Canada's effectiveness as an independent arbiter in our electoral system is weakened.

Some of the coverage yesterday: Canwest, Star, Sun and CP. Le Devoir is behind a wall but you do get a glimpse of Helene Buzzetti's opening paragraph where she referred to the judge as having "manhandled" the Conservative lawyer yesterday, a dynamic shared in the CP reporting. Hopefully that's a sign of things to come for the Conservative case.