Wednesday, November 25, 2009

In-and-out is not really a free speech thing

Day two of the in-and-out litigation at the Federal Court and the Conservative argument went to the free speech issue: "Free speech at stake in ad spending case: Tory lawyer." The argument is basically this:
A lawyer for the Conservatives says freedom of expression for political candidates is at stake in a Federal Court case over $1.2-million worth of disputed party advertising in the 2006 election.

Michel Decary told the court Tuesday that even though the radio and television ads promoted the party's slogan for the election and Prime Minister Stephen Harper, it was legal under federal election law for local candidates to claim the expenses.
We have dealt with this free speech argument in the context of the in-and-out case before around here. From the archives, here's one take on why the free speech label they are applying to their in-and-out expenses argument is basically not correct:
To say that Elections Canada is determining the content of ads, dictating what is local versus what is national, well, that characterization seems compelling on the surface with its appeals to free speech and all. Making it look like Elections Canada is really in the censorship business. As Frum writes:
And Elections Canada has a similar choice to make about how it treats speech. It could give local candidates wide scope to express themselves in the way that those local candidates think most effective — or it can create a new role for itself as the hall monitor of Canadian elections, adjudicating what candidates can and cannot say in their campaigns.
Unfortunately for Frum, the issue's really been settled when we decided to have national versus local spending limits. They mean something. There's no giant pooling of national and local money to buy national ads. So the situation's not as ambiguous and all expressive and choosy as Frum tries to make it out to be. This reader on the Post website pretty much nailed the problem with the Conservative and Frum position:
The rules that exist allow the federal party to spend about $18M on national advertising (or other national expenses) and a local riding to spend about $80K. So, Mr. Frum suggests some Conservative candidates might think they are better served if the party would spend $22M on national advertising and they only spent $10K or so each, but they still collected their $80K from taxpayers as if this was a local expense.
That latter mathematical formulation is the problem with this "free speech" argument, it would render the national versus local spending limits meaningless and ding the taxpayer in the process. Funnily enough, the Conservative lawyers were even arguing yesterday that in a federal campaign, there are no local issues. That's probably news to a lot of voters out there where issues fall differently in different ridings. But whatever absurdity helps them make their argument, right?