Friday, January 21, 2011

Reneging on a constitutional trade-off

There was an op-ed in the Toronto Star yesterday that should be factored in to the right-wing stoked talk about axing a key part of our campaign finance system, the public financing of political parties in the form of the per vote financing. "Dollars and democracy" by Errol Mendes highlights some legal problems that might ensue if Harper proceeds to axe the party subsidies. Here is the key excerpt (lengthy but necessary) then a few thoughts below:
The most troubling aspect of the proposed elimination of the public financing of political parties is that Harper and his Reform party sanctioned a “constitutional trade-off” to allow public financing that dates back to their own days in opposition under the Chr├ętien government.

The trade-off was the elimination of key sources of existing funding to the other main parties — corporate funding for the Liberals and trade union contributions for the NDP.

The campaign finance laws passed by the former Liberal government eliminated all corporate and trade union contributions to political parties and limited individual donations to $1,100 annually to federal parties, with similar amounts for individual candidates.

It should not be forgotten that the social safety nets in modern liberal democratic societies such as Great Britain and Canada were in large measure the result of trade unions and other social organizations that promoted social democracy through contributions and activities in political parties.

There could well be an argument that limited forms of financial contribution to political parties by trade unions are a form of political expression that may be protected by our own Charter of Rights and Freedoms — and indeed by other entrenched rights documents around the world.

The U.S. Supreme Court in the Citizens United decision last January ruled that “political speech is indispensable to a democracy, which is no less true because the speech comes from a corporation,” thereby allowing corporations to engage in political spending in elections.

Indeed, the Supreme Court of Canada has confirmed that, like individual Canadians, trade unions and corporations are guaranteed their freedom of expression under the Charter. The court will most likely strike down total elimination of such expression without some balancing reasonable limit under section 1 of the Charter.

That section allows governments to impose reasonable limits on Charter rights that can be demonstrably justified in a free and democratic society. This balancing allows governments to impose the present limits on financial contributions by individuals.

The potential reasonable limit that may have justified the elimination of contributions by trade unions and corporations to political parties was the $1.95 of public financing per vote to make up for the massive loss of donations. The most affected were the Liberals, the NDP and the Green party, which had relied most on these donations. (emphasis added)
In essence, Stephen Harper's intent to kill the per vote financing would destabilize the balancing provisions that were brought in with this new campaign finance law regime. Corporate and union donations went away, in their place came the $1.95 per vote financing. As Mendes points out, there are legal difficulties that could follow if Harper were able to legislate an end to the public financing. This is a point that hasn't received any attention to date and it calls into question the legitimacy of Harper's plan.

What has gotten perhaps too much attention is a talking point that seems to have taken hold as conventional wisdom. The one that has planted the notion that after all these years, since all of 2003, political parties should have adjusted better by now to the new fundraising regime just like their Conservative brethren. And if they haven't, that's their fault and let's punish them by removing public financing.

It was never contemplated, however, at the time of the 2003 enactments, that the per vote public financing was temporary or would be axed some day. It was part and parcel of the new campaign finance reform. It went hand in hand with the new monetary limits on individual contributions and the removal of rights from corporations and trade unions. So why would any political parties have been prepping for a world where that financing didn't exist over the 8 years since it's been in place? The demise of party financing wasn't on the radar until Mr. Harper started making moves toward axing it in that fateful fall of 2008.

We really need to be asking the basic first principles questions here to a greater extent. Is this particular set of rules one that should be changed every few years, particularly if it's on the whim of a governing party? Can parties function well in such an arbitrary environment? Is having such rules up for grabs all the time something we think is healthy for our democracy? These are not marginal rules we're dealing with, they are significant and affect the quality of our democracy, whether you happen to like these rules or not.

At a minimum, this subject deserves a much, much better discussion than we've heard to date.