Tuesday, January 05, 2010

Conservative legal mischief II

The Conservatives and Elections Canada are suddenly in the news quite a bit these days. Featured yesterday on two fronts, party spending limits and leadership race fundraising. These stories are demonstrating how the Conservatives are fundamentally changing electoral financing issues in significant ways. Their little strategic steps add up. The end result years from now could be quite constricting.

Last night Canadian Press reported on the GST rebate case judgment, released at the end of last week. The report referenced once again the issue of whether or not the judgment applies to other political parties, beyond the Conservatives. The Conservatives argue it does, because it would mean the Liberals would have to fork out a large sum of money to Revenue Canada right now, just as the Conservatives voluntarily did by virtue of pushing this case. The judgment, however, seems to say it does not:
He declined to speculate on whether the ruling may compel the cash-strapped Liberals to refund similar amounts from their 2004 and 2006 election filings. The court judgment was silent on this.

While the case related to the 2004 and 2006 campaigns, wrote Wilton-Siegel, "it must be approached as a matter of interpretation on the basis that the issue applies on a going-forward basis to future elections."
Yes, so why are we still talking about it as an issue then? Probably because the Conservatives are making it one. Egging on the Liberals to repay a GST rebate, whatever that amount is. But they can say whatever they like. The judge seems to have pointed the finger toward the future and any retroactive application is in doubt.

The CP report also indicated that Elections Canada is now reviewing the decision, perhaps with a view to appealing it. On that point, I thought it was interesting in that Globe report on the weekend that the judge was reported as saying the Election Act is not concerned with a "level playing field" in response to exactly that argument from the Chief Electoral Officer, Marc Mayrand. Could have sworn it was, given Supreme Court of Canada judgments like Harper v. Canada (A.G.) where third party advertising expense limits were upheld, with the court citing principles like equality in political discourse as rationales in its decision. So that may be an issue to watch as a basis for appeal.

Secondly, there was this report from Canwest on the 2006 Liberal leadership candidates who have yet to repay their leadership debts and have missed a year-end deadline. While the minority government situation is an ongoing challenge, with the spectre of an election always hanging overhead and sucking up political donations, there's another principal cause of the difficulties experienced in paying off these debts. Changes brought in by Conservatives following that leadership race have put the squeeze on. Unlike regular political donations, you can't give $1,100 per year to the leadership candidate, it's $1,100 per donor and that's it.

These limits have clearly posed problems for the Liberals, with that major leadership race having started under different fundraising rules. But it's worth pointing out that this leadership spending limit may yet prove troublesome for Conservatives down the road. They may believe they've been clever in putting the squeeze on the Liberals in hindsight, indeed probably legislating with that goal in mind. But they'll have their own leadership race(s) in the future, sooner or later, and it's naive to believe that they will be immune to similar challenges under these new provisions.

In short, there's a theme running through Conservative elections law strategy...and it's not an altruistic one.