Issue Advocacy and Third Parties in the
United Kingdom and Canada
Colin Feasby
Mitigating the effect on the electoral process of uneven
financing in election campaigns has been accepted in both Europe and
Canada as a valid and pressing objective of election regulations. The
means undertaken by the U.K. and Canada to achieve this objective,
however, which include the regulation of third party issue advocacy,
are constitutionally problematic. Issue advocacy, which refers to
election-time advertising that is ostensibly non-partisan, is a conmon
feature of the electoral landscape in the UK. and Canada. The
problem for election financing arises with respect to so-called sham
issue advocacy. Sham issue advocacy is issue advocacy that is but a
thinly disguised attack on. or promotion of, a candidate or political
patty. As such, sham issue advocacy threatens the integrity of political
finance regulations because it destabilizes the equilibrium created by
expenditure limits on candidates and political parties. The legislatures
of the U.K. and Canada have attempted to deal with this problem
through the extension of political finance legislation to third party
issue advocacy simpliciter as evidenced in the Political Parties,
Elections and Referendums Act 2000 of the U.K. and in the Canada
Elections Act.
This article begins by reviewing the egalitarian justification for
limiting the election expenditures of third parties that was accepted by
the European Court of Human Rights in Bowman v. United Kingdom
and by the Supreme Court of Canada in Libman v. Quebec, The
author then moves on to the more difficult problem of regulating issue
advocacy, which was dealt with by the Alberta Queen’s Bench in
Harper v. Canada, The author draws on this case to argue that the
extension of political finance legislation to third party issue advocacy
is problematic in constitutional regimes tha place a high value on
political expression. Indeed, third party issue advocacy restrictions in
the U.K. and Canada arguably contravene both the Human Rights Act
1998 and the Canadian Charter of Rights and Freedoms and cannot
be remedied by judicial interpretation. The author concludes by
suggesting viable issue advocacy regulations that are both effective
and consistent with the legal protections of political expression in the
U.K. and Canada.
L’atmuation des effets do financement inm6gal des campagnes
dlectorales sur le processus 61ectoral est vu comni on objectif valide
et urgent de r6giemeatation tant en Europe qu’au Canada. Cependant,
les moyens utilis6s an Royame-Uni et an Canada pour atteindre cet
objectif, tels que le conirfle ligislatif des campagnes fattes par des
tiers sr des enjeux politiques et sociaux particuliers (thirdparty issue
advocacy), sont probl6matiques stir le plan constitutionnel, Ces
rtlrentt 6 la pabicit6 6lectorale
ucampagnes denjeux., qui
d’apparence non partisane, sont un aspect common do paysage 6lecto-
ral du Royaume-Uni et do Canada. Le problame se pose cependant en
situation de “fausse,. campagne d’enjeux (sham issue advocacy). La
fausse caipagne d’enjeux constitue one maiere subtle et dguitse
d’taquer o de promouvoir, selon le cas, on candidat o an patti po-
litique. A c tite, la fausse campague d’enjeux menace l’int6gritd du
contrl1e des finances politiques car elie d~stabilise l’Iquihibre cr66 par
les limites d d~penses admises pour leas candidats et les partis politi-
ques en pdriode 6lectorale. Les lIgislatures do Royaumre-Urn et du
Canada ont tent6 de traiter c probleme en izedant le contr6le lIgis-
latif des finances politiques aux tiers impliqu& dans les campagnes
d’enjeux, comme en font foi le Political Parties, Elections and Re-
ferendum Act 2000 (R.-U.) et la Loi lectorale du Canada.
Cet article examine d’abord la justification 6galitaire 6labor6e
par la Cour eurolpenne des droits de I’homme dans la decision
Bowman c. Royaune.Uni, puis par Ia Cour supreme do Canada dans
In decision Libman c. Qudbec, pour limiter les depenses des tiers en
cours de campague 6lectorale. L’auteur aborde ensuite le problbme
plus difficile de la riglementation des campagnes d’enjeux telle que
soulev~e par a Cow du Banc de Ia Reine de I’Alberta dans larr-t
Harper v. Canada. L’auteor s’atarde sur cet arret pour dmontrer que
l’extension du conis6le Idgislatif des finances politiques aux tiers im-
pliqu~s dans les campagnes d’enjeux est problmatique pour les it-
importance A
gimes
l’expression politique. En effet, r’auteur affirme que ces restrictions
ligislatives violent 4i la fois le Human Rights Act 1998 (R.-U.) et la
Charte canadienne des droits et libertds, et ne peuvent or temp&rs
par one interlrion juridiciaire. L’auteur conclut en suggdrant cer-
tains moyens de r~giemeater les campagnes d’enjeux d’une manire
qui serait ,t Ia fois efficace et consistante avec les protections lIgales
de l’expression politique au Royame-Uni et a Canada.
accordant one grand
constitutionnels
” J.S.D. Candidate, Columbia University. E-mail: cfeasby@oslercom. The author thanks Vince
Blasi, Richard Briffault, Sam Issacharoff, and the members of the Columbia Law School Graduate
Workshop for their helpful comments on earlier versions of this paper. This article continues an earlier
work by the author. See Colin Feasby, “Libman v. Quebec (A.G.) and the Administration of the
Process of Democracy under the Charter The Emerging Egalitarian Model” (1999) 44 McGill L. 5.
McGill Law Journal 2003
Revue de droit de McGill 2003
To be cited as: (2003) 48 McGill L.J. 11
Mode de ref6rence : (2003) 48 R.D. McGill II
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 48
Introduction
1. Regulating Third Party Issue Advocacy
A. The Argument for Regulating Third Party Election Spending
B.
Issue Advocacy
It. Judicial Consideration of Third Party Limits and
Legislative Responses
A. Bowman v. United Kingdom
B. The Lortie Commission and Libman v. Quebec
C. UK and Canadian Legislation
1. The Neill Committee and the PPERA
2. The Canada Elections Act
Ill. Are the PPERA and the Canada Elections Act Overbroad?
A. Harper v. Canada
B. Overbreadth in the UK. and Canada
1. Overbreadth Theory and Doctrine
2.
Interpreting the Breadth of the PPERA and the Canada
Elections Act
a. Vagueness
b. Breadth of the PPERA
c. Breadth of the Canada Elections Act
IV. Fixing the Issue Advocacy Problem
A. Less Drastic Approaches to Issue Advocacy
B. Judicial Remedies
C. Constitutional Dialogue and the Design of Legislative Sequels
Conclusion
Postscript
13
16
16
21
24
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26
28
28
30
31
31
33
33
38
38
40
42
45
45
48
50
52
2003]
C. FEASBY – ISSUEADVOCACYAND THIRD PARTIES
Introduction
Opponents of the wholesale importation of U.S. political finance jurisprudence
into the U.K. and Canada welcomed the recent decisions of the European Court of
Human Rights (“European Court”) and the Supreme Court of Canada in Bowman v.
United Kingdom and Libman v. Quebec, respectively.’ Bowman and Libman signalled
that, unlike what was determined under the First Amendment of the U.S.
Constitution,’ mitigation of the effect of uneven financing is a constitutionally valid
objective of election regulations in Europe and Canada. The resolution of this
fundamental question
is clearly important. Just as important, however, are the
constitutional questions regarding the regulation of political finance raised by
amendments to U.K. and Canadian electoral law following Bowman and Libman.
Both
interpreted Bowman and Libman,
respectively, as broad mandates to regulate political finances, including the finances of
third parties-individuals and independent groups-who participate in political
debate. The Political Parties, Elections, and Referendums Act 200V of the U.K. and
the Canada Elections Ace extend the application of political finance controls from
third party election communications to third party issue advocacy. Third party issue
advocacy can be described as ostensibly non-partisan, paid communication
concerning issues important to the third party during an election campaign. The
regulation of third party issue advocacy marks a significant departure from previous
approaches to political finance regulation in the U.K. and Canada.
the U.K. and Canadian Parliaments
The problem of issue advocacy has not grabbed public attention in the U.K. and
Canada the way that it has in the U.S. Issue advocacy is best known as one of the
great bugbears of U.S. political finance legislation. Pure issue advocacy-paid
communication concerned with public issues and bearing no connection
to an
election-has not been the problem. Rather, the problem is sham issue advocacy,
which, as the name suggests, is thinly veiled election advertising During the 1990s,
‘Bowman v. United Kingdom, [1998] 1 E.C.H.R. 175, 26 E.H.R.R. 1 [Bowman cited to E.C.H.R.];
Libman v. Quebec (A.G.), [1997] 3 S.C.R. 569, 151 D.L.R. (4th) 385 [Libman]. See e.g. Navraj Singh
Ghaleigh, “Election Spending and Freedom of Expression” (1998) 57 Cambridge LJ. 431 (noting the
similarities between Bowman and Libman and commenting that “[sluch reasoning is welcome in that
it balances Article 10 [freedom of expression] against Parliament’s aim of imposing expenditure
ceilings to promote electoral fairness” at 432-33). See also Colin Feasby, “Libman v. Quebec (A.G.)
and the Administration of the Process of Democracy under the Charter The Emerging Egalitarian
Model” (1999) 44 McGill LJ. 5.
2See Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612 (1976) [Buckley].
3(U.K.), 2000, c. 41 [PPERA].
4 S.C. 2000, c. 9.
The terms “pure issue advocacy” and “sham issue advocacy” are taken from Richard L. Hasen,
“The Surprisingly Complex Case for Disclosure of Contributions and Expenditures Funding Sham
Issue Advocacy” (2000) 48 UCLA L. Rev. 265 [Hasen, “Disclosure of Contributions and
Expenditures”]; Richard L. Hasen, “Measuring Overbreadth: Using Empirical Evidence to Determine
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 48
massive amounts of unregulated money were channelled into issue advocacy, making
a mockery of U.S. political finance controls. The issue advocacy loophole permitted
political parties and independent groups to communicate with the electorate without
being subject to political finance disclosure obligations so long as they stopped short
of explicitly advocating the election or defeat of a clearly identified candidate. To fit
within the issue advocacy loophole, political advertisements used techniques that
included oblique references to candidates, implicit or coded criticism of candidates,
and exhortations to act for or against candidates by means other than voting. The
recently adopted Bipartisan Campaign Reform Act of 2OO2 closed the issue advocacy
loophole; a constitutional challenge, however, is already underway.7
While sham issue advocacy is more pervasive in the U.S. than in the U.K. or
Canada, it is not just an American phenomenon. Rather, sham issue advocacy is
endemic to countries that have political finance legislation that draws distinctions
between political communications and election communications. Sham
issue
advocacy is the response of determined political actors to the regulation of election
communications.
election
advertisements are also used in the U.K. and Canada to circumvent political finance
controls. Consider the following example, sponsored by the Grand Council of the
Crees and published in The Globe and Mail two days before the 2000 federal election.
While it undoubtedly solicits support for the Liberal Party, it is cloaked in terms that
try to suggest that its aim is simply to increase the electoral participation of aboriginal
citizens:
ambiguous,
implicit
coded,
Indeed,
such
and
I Encourage Aboriginal Citizens to Vote in the Federal Election
Jean Chrdtien’s Liberal Platform
1. continue to work with aboriginal peoples to address the economic and
social problems they face;
2. promote aboriginal languages;
3. build and strengthen relations with aboriginal peoples;
4. promote aboriginal economic skills development and prosperous aboriginal
economies.
Stockwell Day’s plans for us we all now know.
Gilles Duceppe’s agenda for aboriginals in Canada is also well known.
the Constitutionality of Campaign Finance Laws Targeting Sham Issue Advocacy” (2001) 85 Minn.
L. Rev. 1773 [Hasen, “Measuring Overbreadth”].
‘ Pub. L. No. 107-155, 116 Stat. 81, amending the Federal Election Campaign Act of 1971, 92 Pub.
L. No. 225, 86 Stat. 3, and codified in scattered sections of 2 U.S.C. 431ff. (2003) [Bipartisan
Campaign Reform Act].
McConnell v. Federal Election Commission (heard 5 December 2002), Washington 02-CV-582
(D.C. Cir.), online: Stanford Law School, Robert Crown Library
2003]
C. FEASBY-
ISSUE ADVOCACY AND THIRD PARTIES
By voting we may determine decisions that will impact the future of our
peoples. Voting is one expression of our right of self-determination.
Under constitutional regimes where political expression is highly valued and, at
the same time, the state’s interest in the regulation of political finance is recognized,
the line between express advocacy and issue advocacy is of particular importance.
The problem, understood simply, is one of boundaries.9 Where should the line be
drawn between election-related paid political communications and other paid political
communications? How clear must the distinction between the two forms of paid
political communications be? The Alberta Court of Queen’s Bench recently
confronted this boundary problem in Harper v. Canada (A.G.),’ where it considered
the limits on third party advocacy found in the Canada Elections Act. The court in
Harper struck down spending limits predicated on the definition of “election
advertising expenses” on the ground that the definition was, inter alia, vague and
overbroad. Given the similarities between the Canadian Charter of Rights and
Freedoms” and the European Convention on Human Rights,” if robust protection for
political expression emerges under the Human Rights Act 1998,” the stage may be set
for contest over the boundary between express advocacy and issue advocacy in the
domestic courts of the U.K.
This article advances the argument that genuine issue advocacy falls outside the
bounds of the most cogent justifications that can be advanced for the regulation of
political finance. At the same time, it is recognized that election advertisements that
masquerade as issue advocacy are legitimate subjects of political finance regulations.
When viewed in light of these two propositions, the new U.K. and Canadian
‘ Grand Council of the Crees, “A Message from Grand Chief Ted Moses” The Globe and Mail (25
November 2000) AI0. The elided part of the advertisement contains a coy discussion of the impact of
not voting that implies that the reader should not only vote, but vote Liberal. It is also interesting to
note that according to the third party returns published by Elections Canada, the Grand Council of the
Crees did not register as a third party or report the money spent on publishing this advertisement.
Online: Elections Canada
9 On issue advocacy as a boundary problem, see Richard Briffault, “Issue Advocacy: Redrawing the
Elections/Politics Line” (1999) 77 Tex. L. Rev. 1751 [Briffault, “Redrawing the Elections/Politics
Line”].
‘o(2001), 295 A.R. 1, [2001] 9 W.W.R. 650,2001 ABQB 558 [Harper].
Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
[Charter].
2 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950,
213 U.N.T.S. 221, Eur. T.S. 5 [ECHR].
2 (U.K.), 1998, c. 42 [HRA]. Prior to its adoption, there was speculation that the HRA might form
the basis of Bowman-type attacks on political finance regulation. See e.g. Keith Ewing, “Legal
Control of Party Political Finance” in Ian Loveland, ed., A Special Relationship? American Influences
on Public Law in the UK (Oxford: Clarendon Press, 1995) 233 (observing that “It]hose with an
interest in campaign finance reform are … quite properly concerned by the spectre of a domestic Bill
of Rights which is currently haunting Britain” at 252). In the same vein, see Howard Davis, “Bowman
v. United Kingdom-a case for the Human Rights Act?” [1998] P.L. 592.
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restrictions on third party issue advocacy are problematic because they provide little
guidance as to what kinds of third party paid political communications are regulated.
Moreover, to the extent that they are not vague, U.K. and Canadian third party
political finance controls must be read to extend to pure issue advocacy. The
regulation of pure issue advocacy in this way cannot be justified under either the HRA
or the Charter. The question that follows from this realization is whether there can be
a judicial solution to the failings of U.K. and Canadian limits on issue advocacy or
whether legislative revision is required.
I. Regulating Third Party Issue Advocacy
A. The Argument for Regulating Third Party Election Spending
Political finance legislation is customarily justified as either an anticorruption
measure or as a means to promote political equality. Anticorruption is a simple notion.
Essentially, it holds that it is improper for wealthy citizens to purchase favours from
representatives because it is the government’s role to administer the state in the
interest of the common good. This is how the U.S. Supreme Court understands
political finance legislation.” The U.S. experience shows that in the face of a strong
constitutional tradition of freedom of expression, anticorruption is an insufficient
justification for the limitation of political spending by candidates, political parties, and
third parties.” The existence of political spending does not, in itself, pose a risk of
corruption. Contributions
to candidates, by contrast, do pose a direct risk of
corruption and may be limited. The primacy of the anticorruption rationale in the U.S.
has resulted in considerable
litigation and academic discussion over whether
corruption means something akin to bribery or whether it can mean distortions of the
political process such as preferential access for donors to elected officials.6 More
often than not, arguments for the expansion of the anticorruption rationale are thinly
disguised equality arguments. 7
“See generally Buckley, supra note 2. For a good discussion of the U.S. Supreme Court’s treatment
of equality and corruption rationales, see David A. Strauss, “Corruption, Equality, and Campaign
Finance Reform” (1994) 94 Colum. L. Rev. 1369.
, Two categories of third parties can, however, be regulated: (1) for profit corporations and (2)
unions. These anomalies, however, are inconsistent with the broader U.S. doctrine. The leading case
concerning the regulation of election spending by for profit corporations, Austin v. Michigan Chamber
of Commerce (494 U.S. 652, 110 S. Ct. 1391 (1990)), is difficult to reconcile with Buckley. For a
discussion of this point, see Richard Briffault, “Campaign Finance, the Parties and the Court: A
Comment on Colorado Republican Federal Campaign Committee v. Federal Elections Commission”
(1997) 14 Const. Commentary 91 at 100-102.
6 See e.g. Federal Election Commission v. Colorado Republican Federal Campaign Committee,
533 U.S. 431, 121 S. Ct. 2351 (2001) [Colorado Republican]. This is the most recent case to expand
the scope of the corruption rationale.
“7 The definition of “corruption” in U.S. jurisprudence has become very elastic. Initially, it was
limited to quid pro quo corruption. Arguably, the definition now includes undue influence or even
2003]
C. FEASBY- ISSUE ADVOCACY AND THIRD PARTIES
The concept of political equality is both broader than anticorruption and more
complicated. Equality, in the sense of “one person, one vote”, is a value that is central
to many theories of democracy.” Political equality, in the sense that it is used to justify
political finance regulation, however, means something different and not as widely
accepted. The concept of political equality that informs political finance legislation is
most frequently associated with the more robust theories of democracy.’9 Indeed, the
political equality norm relevant to political finance regulation is concerned with the
equal ability of citizens to affect political deliberation. The two species of political
equality have been labelled “equality of impact” and “equality of influence”, though I
prefer to call the latter “deliberative equality”.’ Influence (i.e., one’s ability to affect
collective deliberation) is determined by a range of factors that include not only
wealth but also education, social status, charisma, and more. Private wealth, however,
like charisma or more
poses a much greater concern than
ephemeral advantages like social status. The effect of private wealth on public debate
is of particular concern because, as John Rawls explains,
innate advantages
eventually these inequalities [of financial resources] will enable those better
situated to exercise a larger influence over the development of legislation. In
due time [the wealthy] are likely to acquire a preponderant weight in settling
social questions, at least in regard to those matters upon which they normally
agree, which is to say in regard to those things that support their favored
circumstances.2
preferred access for some. See Richard Briffault, “Nixon v. Shrink Missouri Government PAC: The
Beginning of the End of the Buckley Era?” (2001) 85 Minn. L. Rev. 1729 (noting that “[t]he Court’s
decisions after Buckley reflect the intermittent tendency of ‘corruption’ to morph into ‘in equality”‘ at
1742).
‘” See e.g. Robert A. Dahl, Polyarchy: Participation and Opposition (New Haven: Yale University
Press, 1971) at 2 (describing “one person, one vote” as a necessary precondition for democratic
government).
‘9 Andrew C. Geddis, “Democratic Visions and Third-Party Independent Expenditures: A
Comparative View” (2001) 9 Tul. J. Int’l & Comp. L. 5 at 102-107 (concluding that a choice to limit
election expenses necessarily indicates a commitment to a “conditional” conception of democracy).
Deliberative democracy takes a conditional view of elections because it considers the legitimacy of
electoral results to depend on the circumstances of deliberation. For a discussion of deliberative
democracy, civic republicanism, and political finance regulation, see Cass R. Sunstein, Democracy
and the Problem of Free Speech (Toronto: Maxwell Macmillan, 1993) at 94-101, 241-52. See also
Ronald Dworkin, “Free Speech and the Dimensions of Democracy” in E. Joshua Rosenkranz, ed., If
Buckley Fell: A First Amendment Blueprint for Regulating Money in Politics (New York: Century
Foundation Press, 1999) 63 (arguing that political finance legislation is consistent with his theory of
“partnership democracy” at 77).
‘0 “Equality of impact” and “equality of influence” are terms coined in Ronald Dworkin, “What is
Equality? Part 4: Political Equality” (1987) 22 U.S.F L. Rev. 1 at 9. On equality and deliberation, see
generally Jack Knight & James Johnson, “What Sort of Political Equality Does Deliberative
Democracy Require?” in James Bohman & William Rehg, eds., Deliberative Democracy: Essays on
Reason and Politics (Cambridge, Mass.: Massachusetts Institute of Technology Press, 1997) 279.
21 John Rawls, A Theory of Justice (Oxford: Oxford University Press, 1973) at 225.
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Political finance regulation is a necessary but insufficient step toward ensuring that
“citizens similarly gifted and motivated have roughly an equal chance of influencing
the government’s policy and of attaining positions of authority irrespective of their
economic and social class.”‘
The European Court in Bowman and the Supreme Court of Canada in Libman
endorsed the promotion of deliberative equality as a valid justification for political
finance regulation. The Supreme Court of Canada in Libman approvingly stated the
objective of the Quebec referendum finance regulation in the following terms:
[The objective of the Act is, first, egalitarian in that it is intended to prevent the
most affluent members of society from exerting a disproportionate influence by
dominating the referendum debate through access to greater resources. What is
sought is in a sense an equality of participation and influence between the
proponents of each option. Second, from the voters’ point of view, the system is
designed to permit an informed choice to be made by ensuring that some
positions are not buried by others. Finally, as a related point, the system is
designed to preserve the confidence of the electorate in a democratic process
that it knows will not be dominated by the power of money. 3
The European Court’s concept of equality was not expressed as clearly in Bowman.
Nevertheless, the European Court’s endorsement of candidate resource equalization as
a policy and its acceptance of the proposition that wealth can improperly influence or
distort public deliberation is consistent with Libman.2′
Deliberative equality as accepted by the Supreme Court of Canada and the
European Court supports financial controls on candidates and political parties.
Deliberative equality can also be argued to support the regulation of third parties on
the grounds that over time, it stands to reason that third party involvement in elections
will be biased towards the interests of private wealth. The bias of third party activities
in favour of the interests of private wealth is, however, a less obvious threat to
deliberative equality than contributions to, and expenditures of, candidates and
political parties. Understanding the danger posed by third party election spending
purely from the deliberative equality perspective leaves third party limits open to
challenge on empirical grounds.
22 John Rawls, “The Basic Liberties and Their Priority” in Stephen Darwall, ed., Equal Freedom:
Selected Tanner Lectures on Human Values (Ann Arbor, Mich.: University of Michigan Press, 1995)
105 at 175.
23 Libman, supra note I at para. 41.
4 “First, it promoted fairness between competing candidates for election by preventing wealthy
third parties from campaigning for or against a particular candidate or issuing material which
necessitated the devotion of part of a candidate’s election budget, which was limited by law, to a
response. Secondly, the restriction on third-party expenditure helped to ensure that candidates
remained independent of the influence of powerful interest groups. Thirdly, it prevented the political
debate at election times from being distorted by having the discussion shifted away from matters of
general concern to centre on single issues” (Bowman, supra note I at 187 [footnotes omitted]).
2003]
C. FEASBY –
ISSUE ADVOCACY AND THIRD PARTIES
Indeed, a leading objection to the deliberative equality justification of third party
election spending limits is that it is impossible to prove that the activities of wealthy
third parties actually affect electoral outcomes.’ If this is the ground on which the
battle over third party regulation is to be fought, defenders of spending limits are
destined to fail. Often, proponents and opponents of expenditure limits alike make the
mistake of accepting that the validity of expenditure limits is dependent upon the
assumed or proved effect of wealth on election outcomes. This debate cannot be
resolved because of the present inability of social science to divine from the entrails
of an election the impact of third party activities with any certainty.’ What is needed
is an understanding that the potential effects of third party activities go beyond simply
affecting election results in a conventional sense.
Unrestrained third party election activities have the potential to threaten the place
of political parties as the primary political organizations. That political parties occupy
such a primary position is necessary for the proper functioning of responsible
government in the Anglo-Canadian tradition. 7 The threat to the primacy of political
” See e.g. Harper, supra note 10; Somerville v. Canada (A.G.) (1996), 184 A.R. 241 at paras. 63-
66, 136 D.L.R. (4th) 205 (Alta. C.A.) [Somerville]. In both Harper and Somerville the fact that there
was no evidence that third party expenditures affected election results determined the Court’s
decision; the Court was interested in the proven impact of third party expenditures on election
outcomes, not in other conceptions of harm to the electoral process. The same estimation of the
importance of the effect of third party expenditures underlies Libman (supra note I at para. 47),
where “impact on the outcome of the vote” is the focus of the Court. The misconception that evidence
of impact on election results is the only relevant measure of harm is also evident in the political
science literature. See e.g. A. Brian Tanguay & Barry J. Kay, ‘Third-Party Advertising and the Threat
to Electoral Democracy in Canada: The Mouse that Roared” (1998) 17 International Journal of
Canadian Studies 57. The error in viewing the harm of third party expenditures solely in terms of the
effects of third party expenditures on election results is pointed out by Janet L. Hiebert (“Money and
Elections: Can Citizens Participate on Fair Terms Amidst Unrestricted Spending?” (1998) 31:1
Canadian Journal of Political Science 91 at 105-106): “What is objectionable about the claim that
money is a problem only if it has a causal effect on a particular outcome is that this provides an
incomplete measure of the significance of money in elections:’
26 U.K., H.C., “Fifth Report of the Committee on Standards in Public Life: The Funding of Political
Parties in the United Kingdom”, Cm 4057 in Sessional Papers, vol. 1 (1997-98) 1 (Chair: Lord Neill
of Bladen) [U.K., “Neill Committee Report”]. “[lIt is hard to know what evidence could be adduced
to prove [or disprove the supposed effects of election spending]” (ibid. at 120). There is, however, a
recent U.S. study that suggests that third parties can have a very real impact on election results. See
Gary C. Jacobsen, “The Effect of the AFL-CIO’s ‘Voter Education’ Campaigns on the 1996 House
Elections” (1991) 61 Journal of Politics 185.
” See Canada, Royal Commission on Electoral Reform and Party Financing, Reforming Electoral
Democracy, vol. 1 (Toronto: Dundurn Press, 1991) at 11-13 (Chair: Pierre Lortie) [Canada, Final
Report] (discussing the role of political parties as primary political organizations). See also Herman
Bakvis & Jennifer Smith, “Third-Party Advertising and Electoral Democracy: The Political Theory of
the Alberta Court of Appeal in Somerville v. Canada (Attorney General) [1996]” (1997) 23:2 Can.
Pub. Pol’y 164; K.D. Ewing, ‘Transparency, Accountability and Equality: The Political Parties,
Elections and Referendums Act 2000″ [2001 ] P.L. 542 at 544 [Ewing, ‘Transparency, Accountability
and Equality”].
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parties is an indirect threat to deliberative equality. The activities of third parties could
overwhelm or displace the messages of candidates and political parties who are
constrained by spending limits. The voices of candidates and political parties-those
who will actually govern-must have the opportunity to be heard clearly above the
cacophony of other interests. This concern is not a hypothetical one, as third parties
have incurred large expenditures on a national scale in both the U.K. and Canada and
have spent as much as major party candidates in selected local contests.”
Deliberative equality is improved by a measure of equality of resources among
candidates and political parties. Unchecked third party expenditures have the potential
to destabilize the relative equality of resources among candidates and political parties
established by political finance legislation. In particular, the activities of third parties
may threaten to disturb the d6tente among candidates and political parties imposed by
spending limits. Third parties may, by formal agreement, implicit arrangement, or
otherwise, undermine expenditure limitations on candidates and parties by pursuing
coordinated or complimentary campaigns.” For example, a candidate may employ a
” In the U.K. context, businessman Paul Sykes is reported to have spent more than either the
Labour or Conservative Party on newspaper advertising during the closing week of the 1997 general
election. See Chris Powell, “The Role of Labour’s Advertising in the 1997 General Election” in Ivor
Crewe, Brian Gosschalk & John Battle, eds., Political Communications: Why Labour Won the
General Election of 1997 (London: Frank Cass, 1998) 28 at 35. More recently, businessman Brian
Souter spent “tens of thousands of pounds” buying up all of the prime billboard space in the
constituency of Ayr, purchasing full page advertisements in the local newspaper and printing and
distributing 56,000 leaflets attacking the Labour government’s policies during a 2000 by-election. See
K. Farquarson & J. Robertson, “Souter Takes Fight to Blair on Section 28” The Sunday 7imes (12
March 2000) SN 1.
In the Canadian context, the most famous example of third party election activities is the 1988
federal election, for which the Free Trade Agreement with the U.S. was the defining issue. During
that election third parties are estimated to have incurred expenditures of approximately $4.7 million-
an amount that exceeded the national advertising expenditures of each of the major political parties.
See Janet Hiebert, “Interest Groups and Canadian Federal Elections” in F Leslie Seidle, ed., Interest
Groups and Elections in Canada, vol. 2 (Toronto: Dundum Press, 1991) 3 at 20. In the 1993 federal
election, the National Citizen’s Coalition spent $50,000-approximately the expense limit of
candidates–to attack Calgary M.P. Jim Hawkes. See Nancy Tousley, “Hawkes Goes Down to
Defeat” The Calgary Herald (26 October 1993) AA3. In the 2000 federal election, there were several
third party campaigns both for and against Anne McLellan in the constituency of Edmonton West.
The extent of these campaigns, however, is not known, as many of the protagonists did not report their
expenditures. See Doug Beazley, “Incumbent Anne is Target of Many Groups: But National Issues
Like Gun Control Aren’t Local Issues” The Edmonton Sun (26 November 2000) 28. Note the absence
from the list of registered third parties of the National Firearms Association and others who have
stated openly that they were conducting campaigns against McLellan. See Elections Canada, supra
note 8.
For a discussion of the possible risks of using third parties as negative proxies, see Walter 1.
Romanow & Walter C. Soderland, “Conclusions” in Walter I. Romanow et al., eds., Television
Advertising in Canadian Elections: The Attack Mode, 1993 (Waterloo: Wilfrid Laurier University
Press, 1999) 193 at 203. The classic example of using proxies as negative advertisers was the “Willie
Horton” campaign of George Bush Sr., described by Darrell M. West (Checkbook Democracy: How
2003]
C. FEASBY-
ISSUE ADVOCACY AND THIRD PARTIES
third party as a proxy so that the candidate may circumvent political finance
regulations or so that the candidate may maintain a safe distance from unseemly
attacks upon opposing candidates.” Keith Ewing, writing about the effect of third
party limits on trade unions, observed that “electoral and referendum spending limits
can be easily justified as being necessary to prevent the political party spending limits
from being subverted.”‘ In other words, limits on third parties are a necessary incident
of limits on candidates and political parties.
Even accepting a broad definition of the harm posed by third party election
spending, it is possible to object to limits on third party activities. Third parties play
an important role in the process of public deliberation distinct from that of political
parties. Third parties help to set the public agenda and to define the parameters of
debate in ways that mainstream political parties are often unwilling or unable to do.
Political parties, for mutually convenient reasons, may collude to avoid raising certain
issues. Accordingly, restricting issue advertising that fails to pose a reasoned threat to
the political finance regime that governs political parties and candidates (i.e.,
restricting pure issue advocacy) cannot easily be justified on the grounds of
deliberative equality. It could be argued that limits on pure issue advocacy are justified
because better financed third parties logically have an advantage in issue advertising
aimed at agenda setting and thereby can secure disproportionate influence. Without
the corresponding threat to the integrity of political party and candidate spending
limits, however, it is not clear that such an indirect harm would be sufficient to justify
the potential adverse impact on the breadth of public deliberation.
B. Issue Advocacy
If deliberative equality and the primacy of political parties are accepted as
normative baselines, the case for regulating third party election expenditures is a
strong one. The case for the regulation of third parties is less clear, however, when
Money Corrupts Political Campaigns (Boston: Northeastern University Press, 2000) at 18-19) as
follows:
Caught between their need to place negative information about Dukakis before the
people and their desire to avoid a backlash created by going on the attack, Bush
operatives decided on a two-track system. The official campaign would attack
Dukakis’s views on crime and his record as governor….
At the same time … outside groups would run a second political operation that was
much tougher. This other track would employ “brass knuckles” tactics that would
appeal to the basest instincts of the American public on the subject of race.
Unauthorized and uncoordinated, the operation would say things and run advertisements
that were off-limits for the official organization.
o For a discussion of the problems of collusion and circumvention, see Jennifer Smith & Herman
Bakvis, “Changing Dynamics in Election Campaign Finance: Critical Issues in Canada and the
United States” (2000) 1:4 Policy Matters 1 at 21-23. Circumvention in a different context has been
recognized as a risk to U.S. political finance controls (Colorado Republican, supra note 16).
“‘ K.D. Ewing, “The Political Parties, Elections and Referendums Act 2000-Implications for Trade
Unions” (2001) 30:2 Indus. L.J. 199 at 205.
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third party activities are not coordinated with or complementary to the campaign of a
candidate or political party. Third party advocacy that does not seek to advance the
fortunes of a particular candidate or party does not obviously threaten to overwhelm
partisan messages or destabilize the relative parity of resources among the candidates
and political parties. If freedom of expression, particularly political expression, is
highly prized, then it is impossible to justify the extension of third party expenditure
limits to communications that are imperfectly aligned with the message of a candidate
or political party, or that only indirectly prejudice the campaign of a candidate or
political party. The practical problem, then, is distinguishing between third party
political activities at large and third party political activities that may reasonably be
thought
the relative equality
established among candidates and political parties by political finance legislation.
to overwhelm partisan messages or destabilize
The breadth of an expenditure regulation is determined by its definition of
“election expenses”. Regardless of the form of the definition, any regulation of
election expenses, whether it is expenditure reporting or a spending limit, must define
what political expenses qualify as election expenses. Such a definition must provide
an articulation of the nexus that is required between an expenditure and an election
before the expenditure may be called an “election expense”. Apart from expenses for
mundane items (such as the maintenance of an office), election expenditures are
expenditures on expressive activities. Whether the expenditure of money is considered
expressive or merely an essential prerequisite for certain forms of expression, the
regulation of election expenditures must be understood to engage guarantees of
freedom of expression. 2
The regulation of election expenses presents a particularly sensitive problem
because the expression regulated is arguably the very form of expression-political
expression-that constitutional guarantees exist to protect.” Bowman and Libman
have settled, for the moment, that third party electoral expression may be regulated in
the U.K. and Canada. Nevertheless, it cannot be denied that third party expression
incidentally affected or inadvertently captured by regulations of election expenditures
will invariably be political expression of the sort vital to a free and democratic society.
Separating electoral expression from political expression is a formidable challenge
32 There is a robust debate in the U.S. concerning whether money is speech. See e.g. J. Skelly
Wright, “Politics and the Constitution: Is Money Speech?” (1976) 85 Yale LJ. 1001. The question of
whether money is expression or not is not an issue in Canada because the definition of expression is
clearly broad enough to encompass monetary expenditures. See Irwin Toy Ltd. v. Quebec (A.G.),
[1989] 1 S.C.R. 927 at 967-71,58 D.L.R. (4th) 577.
” The most celebrated articulation of the argument that links the protection of free speech to the
instrumental needs of government is that of Alexander Meiklejohn. See e.g. Alexander Meiklejohn,
Free Speech and its Relation to Self-Government (New York: Harper, 1948). American, British, and
Canadian courts all accept that one of the most important instrumental purposes of the constitutional
protection of freedom of expression is to facilitate democratic deliberation and government. See R. v
Secretary of State for the Home Department, ex parte Simms, [2000] 2 A.C. 115 at 126, [1999] 3 All
E.R. 400 (H.L.); Re Alberta Legislation, [1938] S.C.R. 100 at 133, [1938] 2 D.L.R. 81, aff’d without
comment on this point [1939] A.C. 117, [1938] 4 D.L.R. 433 (PC.).
2003]
C. FEASBY- ISSUE ADVOCACY AND THIRD PARTIES
because elections are inherently political, and conversely, most political expression
can be seen to have electoral ramifications to one degree or another. Inflexible
definitions of election expenses are, as a result, doomed to be overinclusive or
underinclusive. Therein lies the constitutional significance of the delicate problem of
defining the electoral sphere. The project of defining election expenses assumes that
election-related expressive activity may be intelligently separated from the larger
realm of political expression. Embedded in this assumption is the idea that the larger
domain of public political discourse continues to exist during the course of an
election.’
The problem of separating electoral expression from general political expression
can be illustrated by reference to two recent advertisements, portions of which are
excerpted below. The first, “Canada’s Health Care”, by the Canadian Medical
Association, ran as a quarter page advertisement in The Globe and Mail eighteen days
before the 2000 Canadian federal election:
Canada’s Health Care: Planning a Full Recovery
[the Canadian Medical
Join with Canada’s physicians
Association’s ideas for a better health care system] a reality, by letting your
voice be heard during this election. [Here are] some things you can do:
to help make
1. Send your idea of an ideal health system to us. We’ll post them on our
web-site, and send them all to Canada’s political leaders.
2. Tell your local candidates about the health system you want, and ask
3. Write, email, phone hot line shows, go to meetings, and then make
what they’ll do to make it happen.
your vote count.3
5
The second, “European Union?”, sponsored by the British Democracy Campaign,6
was a full page advertisement in The limes approximately one month prior to the
2001 U.K. general election:
European Union?
You are the electorate. They are the elected. The overwhelming majority of you
say you want a referendum. The vast majority of MPs say nothing. On
everything from the price of petrol to public spending, you can’t keep them
quiet. But on this, the most vital issue affecting the future of every man, woman
This idea is central to any defence of the constitutionality of spending limits. See C. Edwin Baker,
“Campaign Expenditures and Free Speech” (1998) 33 Harv. C.R.-C.L.L. Rev. 1; Frederick Schauer &
Richard H. Pildes, “Electoral Exceptionalism and the First Amendment” (1999) 77 Tex. L. Rev. 1803;
Briffault, “Redrawing the Election/Politics Line”, supra note 9; Feasby, supra note 1.
31 Canadian Medical Association, “Canada’s Health Care: Planning a Full Recovery” The Globe
and Mail (9 November 2000) A9 [“Canada’s Health Care”] [emphasis in original].
Campaign
Sykes, whose activities in past elections are discussed by Powell (supra note 28).
British Democracy
Campaign
(online:
3
The
British Democracy
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and child in Britain … silence. We wrote to all 659 MPs, up to and including the
Prime Minister, and asked if they would support the majority British view and
back the call for a free and fair referendum in the next Parliament. Printed
below is the response that we received.
MPs FOR A REFERENDUM: Harold Best …
MPs AGAINST A REFERENDUM: David Atkinson …
MPs WHO REPLIED BUT REFUSED TO COMMIT: Peter Ainsworth …
MPs WHO FAILED TO RESPOND: Diane Abbott …
These MPs want your vote in the election but will not give you a vote on who
should govern Britain after the election.
IS THIS DEMOCRACY’3 7
“Canada’s Health Care” is neutral on its face and appears to be primarily engaged
in raising awareness about health care as an election issue. The neutrality of the
advertisement indicates that it does not threaten to destabilize the balance of resources
among candidates and the political parties. Indeed, this is the type of advertisement
that may be viewed as agenda-setting and intrinsically valuable to the political
process. In contrast, “European Union?” names candidates standing for election and
highlights their agreement or disagreement with the position that is advanced by the
advertisement. There is no question that “European Union?” favours some electoral
participants over others and, thus, poses a reasoned risk to the balance of resources
among candidates and political parties. The challenge for drafters of political finance
legislation
that distinguish between advertisements like
“Canada’s Health Care” and “European Union?” and the harder cases that fall in
between.
is to craft provisions
II. Judicial Consideration of Third Party Limits and Legislative
Responses
A. Bowman v. United Kingdom
Under the Representation of the People Act 1983,”8 constituency campaign
restrictions prohibited third parties from incurring expenses in excess of five pounds
“with a view to promoting or procuring the election of a candidate … “” Mrs.
Bowman, an anti-abortion activist, was charged with violating the prohibition on third
party spending for distributing a leaflet that stated: “We are not telling you how to
vote, but it is essential for you to check on candidates’ voting intentions on abortion
and on the use of the human embryo as a guinea pig.” Below this statement, the leaflet
summarized the positions of the three principal candidates in the constituency on the
” British Democracy Campaign, “Is This Democracy?” The 7mes (16 May 2001) 7 [“European
Union?”].
3 (U.K.), 1983, c. 2.
38 Ibid., s. 75.
2003]
C. FEASBY- ISSUE ADVOCACY AND THIRD PARTIES
question of abortion access and medical research on human embryos. Mrs. Bowman’s
criminal charge was dismissed on technical grounds. Mrs. Bowman, however, was not
satisfied with her acquittal because it left open the possibility of prosecution in future
elections. Mrs. Bowman decided to pursue the matter further by filing a complaint
with the European Commission of Human Rights. Mrs. Bowman’s complaint stated
that her right to freedom of expression, as guaranteed by article 10 of the ECHR, was
violated by her prosecution for incurring election expenses in excess of five pounds.
The European Commission of Human Rights overwhelmingly agreed.’
The U.K. appealed the ruling of the European Commission of Human Rights to
the European Court of Human Rights. The European Court began by concluding that
the restriction served the legitimate aim of attempting to secure “equality between
candidates”.” The third party limit, however, was not found to be justifiable for two
reasons. First, the third party limit in “section 75 of the 1983 Act operated, for all
practical purposes, as a total barrier to Mrs Bowman’s publishing information with a
view to influencing the voters of Halifax in favour of an anti-abortion candidate’ “‘2
The European Court’s reasons do not make it clear whether it understood section 75
to be a barrier to pure issue advocacy or just sham issue advocacy of the type found in
Mrs. Bowman’s leaflets. The various concurring and dissenting judgments all point
out that activities that may be described as pure issue advocacy are not implicated by
the third party limit. Two judges, dissenting in part, noted that the third party limit
“does not prevent expenditure on the provision of factual material or comment
intended merely to inform the public.”
Viewed against the backdrop of the concurring and dissenting judgments, the
majority must be understood to have been concerned with a complete restriction on
election advocacy (including sham issue advocacy), not issue advocacy simpliciter.”
Such a prohibition of election advocacy was,
in the view of the majority,
disproportionate and unnecessary to achieve the objective of equality between
candidates. Second, the third party limit was not necessary in the eyes of the majority
‘0 Bowman, supra note 1. The European Commission decision (reported 12 September 1996 (article
31)) is reprinted in the annex of the European Court’s decision (ibid. at 202-209).
41 Bowman, ibid. at 187.
‘ Ibid. at 189.
” Ibid. at 199. Eight justices, some concurring and some dissenting in the result, disputed the
plurality’s finding that the third party limit was effectively a “total ban”. Though not in so many
words, the eight justices held that the section provided an opportunity for Mrs. Bowman to engage in
pure issue advocacy. Three judges who agreed with the plurality in all other respects held that
“[slection 75 does not prohibit the publication of facts or comment for the information of the general
public” and that the leaflet was only “intended to inform the voters of Halifax of the probable
intentions of the candidates with regard to the abortion issue” (ibid. at 193). Three other judges
expressed similar disagreement with the plurality position in a dissenting judgment (ibid. at 195-97,
Loizou, Baka, and Jambrek JJ.).
” For support of this interpretation, see U.K., “Neill Committee Report”, supra note 26 at 129
(where it is noted that “factual information” [i.e., pure issue advocacy] was exempt from the
prohibition considered in Bowman).
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because there were “no restrictions placed upon … political parties and their
supporters to advertise at national or regional level, provided that such advertisements
were not intended to promote or prejudice the electoral prospects of any particular
limits on political party
candidate
advertising, the argument that the third party limits preserve the equality between
candidates that is established by constituency spending limits loses some of its force.
in any particular constituency'” Without
The lesson of Bowman is that, in the context of a comprehensive spending limit
system, limits on third party election advertising that supports or opposes candidates
or political parties will be justifiable if the level of permitted spending is proportionate
to the limits on candidates and political parties. Proportionate, in this sense, is
understood to be reflective of the relative stakes of third parties and political parties in
the electoral process (i.e., the permitted level of spending for political parties will be
greater than that for third parties). The unstated corollary of Bowman’s conclusion is
that limits on third party informational advertising (i.e., pure issue advocacy) are
impermissible even if subject to a higher monetary limit. The question that is not
answered by Bowman is where the line is to be drawn between election advertising
and informational political advertising.
B. The Lortie Commission and Libman v. Quebec
Concerns about the levels and sources of expenditures in the 1988 federal election
in Canada led to the appointment of the Royal Commission on Electoral Reform and
Party Financing chaired by Pierre Lortie (“Lortie Commission”). The Lortie
Commission engaged in a wholesale analysis of the role of money in the Canadian
electoral process. A reconsideration of the definition of “election expenses” in the
1983 Canada Elections Act’ was central to this task. The Final Report of the Lortie
Commission explained that the definition of “election expenses” was underinclusive
because it did not capture issue-driven communications. Issue advocacy, according to
the Final Report, had the potential to alter the discourse of an election campaign and
was, therefore, a subject for regulatory attention.’7
Instead of confronting the difficult task of crafting a line distinguishing issue
advocacy from express advocacy, the Lortie Commission concluded that any
distinction between issue advocacy and express election advocacy was logically
unsustainable and recommended a sweeping definition of “election expenses”. The
Lortie Commission recommended that any definition of “election expenses” capture
all spending that directly or indirectly promotes or opposes candidates or political
parties. The commission also recommended that spending that promotes or opposes a
candidate or political party’s policies fall within the definition of “election expenses”.
issues may “emerge or be
Further,
reformulated” during a campaign and that “[ilt is thus essential that the definition of
the Lortie Commission observed
that
“Bowman, supra note 1 at 189.
4’An Act to amend the Canada Elections Act (No. 3), S.C. 1980-81-82-83, c. 164.
41 Canada, Final Report, supra note 27 at 15.
2003]
C. FEASBY- ISSUE ADVOCACY AND THIRD PARTIES
election expenses encompass spending to approve or disapprove the positions taken in
response to the events of an election campaign’ A majority of the provinces have
legislation that defines election expenses, consistent with the Lortie Commission’s
recommendation, as “all costs incurred to directly or indirectly, promote or oppose a
candidate or party “‘9 The federal government, however, did not adopt the Lortie
Commission’s expansive approach to defining election expenses until after Libman in
the Canada Elections Act’ of 2000.
The Supreme Court of Canada first considered the question of electoral
expression in Libman in the context of restrictions on third parties in the Quebec
Election Act.’ The Quebec Election Act serves a dual purpose in that by operation of
the Referendum Acte2 it applies in modified form to referenda.” Indeed, it was the
modified form of the Quebec Election Act that was considered in Libman. Operating
in its guise as a referendum law, the Election Act sets up a framework where one
umbrella committee advocates an affirmative position and another umbrella
committee advocates a negative position. Each of these committees is entitled to incur
“regulated expenses”. The Special Version of the Election Act’ provided that “[tihe
cost of any goods or services used during the referendum period to promote or
oppose, directly or indirectly, an option submitted to a referendum is a regulated
Individuals and groups unaffiliated with either of the umbrella committees
expense”
were prohibited from incurring regulated expenses except for an amount of six
48Ibid. at 341.
4′ Election Act, R.S.B.C. 1996, c. 106, s. 183; Elections Finances Act, R.S.M. 1987, c. E-32, s. 1;
Election Expenses Act, R.S.PE.I. 1988, c. E-2.01, s. 1; Elections Act, R.S.N.S. 1989, c. 140, s. 3;
The Election Act, 1996, S.S. 1996 E-6.01, s. 220(0 [SEA]. Despite a common definition, different
approaches to regulating third party expenditures are found throughout the provinces.
-‘Parliament, however, adopted the Lortie Commission’s recommendation
to impose a one
thousand dollar ceiling on third party election expenditures and made several minor definitional
changes. “Advertising expenses” in An Act to amend the Canada Elections Act (S.C. 1993, c. 19, s.
259), just like “election expenses” in prior versions of the Canada Elections Act, were defined to
include any amounts paid “for the purpose of promoting or opposing, directly and during an election,”
a registered party or candidate. The limit on third party “advertising expenses” was challenged in
Somerville (supra note 25). At the outset, the court stated that “advertising expenses” did not include
amounts spent “advertising on issues” (ibid. at para. 6). Having thus narrowed the definition to “direct
advertising”, the court gave no further consideration as to what exactly “direct advertising”
encompassed. The definitional question proved inconsequential in the end when the court ruled that
the limitation of third party expression was unjustifiable because it was designed to exclude third
parties from the electoral arena and to protect candidates and parties from criticism.
R.S.Q. c. E-3.3.
“R.S.Q. c. C-64.1.
The Quebec Election Act (supra note 51), as it applied to elections, was not at issue in Libman.
Nevertheless, the approach in that act to defining electoral expression and regulating third party
participation is noteworthy for its highly structured nature. The definition of “election expenses”
extends to amounts spent to “propagate or oppose” the policies of a candidate or party (ibid., s. 402).
, Elections Act, ibid., as am. by Referendum Act, supra note 52, appendix 2, in accordance with
Referendum Act, ibid., s. 45 [Special Version of the Election Act].
” Special Version of the Election Act, ibid., s. 402.
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hundred dollars, which could be spent on holding a meeting.,6 The Supreme Court of
Canada observed in Libman that “the definition of regulated expenses [was] very
broad,” ‘7 but did not address
the question of whether it was overbroad or
impermissibly vague. The Court did, however, endorse the Lortie Commision’s view
that “[i]ndependent spending could very well have the effect of directly or indirectly
promoting one candidate or political party to the detriment of others … “” Instead of
confronting the definitional question, the Court struck down the challenged provisions
of the Special Version of the Election Act in the course of its section 1 proportionality
analysis under the Charter on the basis that the limit of six hundred dollars for a
meeting expense was too restrictive to be justifiable in a free and democratic society.”
C. U.K. and Canadian Legislation
1. The Neill Committee and the PPERA
The U.K. recently underwent a significant revision of its electoral laws.’ The all-
in Public Life chaired by Lord Neill (“Neill
party Committee on Standards
Committee”) reviewed British electoral practices with a view to proposing a modem
law to govern party finances, elections, and referenda. One of the subjects that the
Neill Committee grappled with was the definition of “election expenses” and the
scope of limits on third party spending. The Neill Committee reviewed the Bowman
decision and concluded that the principal finding of the European Court was that the
five pound limit on constituency expenditures was unjustifiably low. Accordingly, the
Neill Committee recommended an increase in the constituency expenditure limit to
five hundred pounds to permit activities such as the printing and circulation of leaflets
or the placement of a local newspaper advertisement. In making the recommendation
for the increased limit, the Neill Committee observed that the section under which
Mrs. Bowman was prosecuted was “confined to activities which are intended to
promote or prejudice the electoral prospects of ‘particular candidates in a particular
constituency’. Leaflets designed merely to bring factual information to the attention of
voters or to assist a national campaign without referring to particular candidates fall
outside the section”‘
16Ibid., s. 404(9).
“Libman, supra note 1 at para. 34.
38Ibid. at para. 49.
9Ibid. at paras. 75-82.
6This reform process and the work of the Neill Committee is described in Lisa E. Klein, “On the
Brink of Reform: Political Party Funding in Britain” (1999) 31 Case W. Res. J. Int’l L. 1. See also
K.D. Ewing, “The Funding of Political Parties in Britain: Prospects for Reform” (1998) 7 Griffith L.
Rev. 185.
U.K., “Neill Committee Report”, supra note 26 at 129.
2003]
C. FEASBY- ISSUE ADVOCACY AND THIRD PARTIES
The Neill Committee further considered whether national expenditure limits on
third parties were warranted.’ The committee observed that during the 1940s and
1950s, corporations and industry groups conducted significant campaigns against the
nationalization policies favoured by the Labour Party and that during the 1997
election, the U.K.’s largest union, UNISON, spent more than one million pounds on
advertisements promoting a national minimum wage.’ Some of the advertisements by
corporations in the 1950s, as well as by the UNISON campaign, avoided direct
references to parties or candidates. The Neill Committee concluded that it would be
“naive to imagine” that advertisements such as the corporate anti-nationalization and
the 1997 UNISON advertisements were “nonpartisan promotional propaganda”.’
Clearly, according to the Neill Committee, advertisements of this sort had as one of
their objects to promote or damage the electoral prospects of one or more parties. As a
result, it was recommended that the limit on third parties extend to communications
that implicitly promoted or opposed the success of a party. The Neill Committee
recommended that
“[ellection expenses” … be taken to include expenses that are clearly intended
to promote or have the foreseeable effect of promoting some parties or to
disparage other parties irrespective of whether such parties are mentioned by
name in the individual’s or organisation’s advertising or other promotional
material.65
Following the Neill Committee’s recommendations, the U.K. Parliament enacted
the PPERA.’ Section 85 of the PPERA restricts “controlled expenditures”, defined as
incurred in relation to “election material”. Subsection 85(3) defines
expenses
“election material” as
material which can reasonably be regarded as intended to –
(a) promote or procure electoral success at any relevant election for –
(i) one or more particular registered parties,
(ii) one or more registered parties who advocate (or do not
advocate) particular policies or who otherwise fall within a
particular category of such parties, or
(iii) candidates who hold (or do not hold) particular opinions or
who advocate (or do not advocate) particular policies or
fall within a particular category of
who otherwise
candidates, or
(b) otherwise enhance the standing –
(i) of any such party or parties, or
62 See R. v. Tronoh Mines Ltd., [1952] 1 All E.R. 697, 35 Cr. App. R. 196 (Cen. Crim. Ct.) (holding
that an earlier version of the third party limits considered in Bowman did not apply to general political
advertising or national campaign advertising).
‘U.K., “Neill Committee Report”, supra note 26 at 131.
6’lbid. at 133.
65 Ibid.
“Supra note 3. For an extensive review of the PPERA, see Ewing, “Transparency, Accountability
and Equality”, supra note 27.
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(ii) of any such candidates, with the electorate in connection
imminent or
relevant elections (whether
with future
otherwise);
and any such material is election material even though it can reasonably be
regarded as intended to achieve any other purpose as well. 67
The breadth of this definition is increased by subsection 85(4), which provides that
“for the purposes of determining whether any material is election material, it is
immaterial that it does not expressly mention the name of any party or candidate”
The temporal scope of the definition, which seems open-ended on the face of section
85, is narrowed by section 3 of schedule 10, which provides that the “relevant” period
for parliamentary general elections is the 365 days prior to the election day. The
definition of “election material” seems to be aimed at sweeping into the regulatory net
all material that directly or indirectly promotes or opposes a candidate or political
party within one year of an election including expression concerning policies
associated with a candidate or political party.
2. The Canada Elections Act
introduced
federal government
Following Libman, Canada’s
third party
expenditure controls with significantly higher limits to ensure conformity with the
dicta of the Supreme Court. The responsible minister indicated that the government’s
purpose was to restore the comprehensiveness of political finance regulation by
subjecting third parties to limits proportional to those of parties and candidates.” The
amendments were passed by Parliament as the Canada Elections Act9 of 2000.
Central to the amendments contained in the Canada Elections Act is the definition in
section 319 of “election advertising” as communications that promote or oppose a
particular candidate or party, including communications that take “a position on an
issue with which a registered party or candidate is associated.” The idea of regulating
expenditures concerning policies “associated” with candidates and parties
is
consistent with the Lortie Commission recommendations and with the Election Act of
Quebec. The third party expenditure limit is stated in section 350 of the Canada
Elections Act in the following terms:
(1) A third party shall not incur election advertising expenses of a total
amount of more than $150,000 during an election period in relation to a
general election.
(2) Not more
in
subsection (1) shall be incurred to promote or oppose the election of one or
more candidates in a given electoral district, including by
than $3,000 of the total amount referred
to
(a) naming them;
67PPERA, ibid., s. 85(3).
Harper, supra note 10 at paras. 228-34.
‘9 Supra note 4.
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C. FEASBY – ISSUE ADVOCACY AND THIRD PARTIES
31
(b) showing their likenesses;
(c)
(d)
identifying them by their respective political affiliations; or
taking a position on an issue with which they are particularly
associated.7″
Together, the definition of “election advertising” in section 319 and the third party
expenditure limits in section 350 represent a significant departure from previous
attempts to control third party activities during elections.
III. Are the PPERA and the Canada Elections Act Overbroad?
A. Harper v. Canada
Stephen Harper, leader of Canada’s official opposition party and erstwhile
president of the National Citizens’ Coalition, brought a challenge to the Canada
Elections Act immediately upon its proclamation.7′ Although many sections of the
Canada Elections Act were challenged,”2 the heart of Harper’s assault-and the
primary subject of Cairns J.’s reasons-was the definition of “election expenses” and
its application to the restriction on third party advertising. There were both primary
7 Ibid., s. 350.
The procedural history of Harper is complicated. The trial was heard during the first weeks of
October 2000, at which time the trial judge reserved his decision. On 22 October 2000, only days
after the end of the hearing, a federal election writ was issued, With the decision expected to be
months away, Harper reattended before Cairns J. and moved for an interlocutory injunction
prohibiting enforcement of the challenged sections of the Canada Elections Act for the duration of the
election campaign. Cairns J. granted the requested injunction (Harper v. Canada (A.G.) (2000), 6
C.RC. (5th) 362 (Alta. Q.B.)) and the Alberta Court of Appeal rejected an appeal by the attorney
general (Harper v. Canada (2000), 266 A.R. 262, 2000 ABCA 288). With the election campaign well
underway, the Supreme Court of Canada reversed both the Alberta Court of Appeal and the trial
judge, allowing the challenged provisions of the Canada Elections Act to stand pending the reserved
trial decision (Harper v. Canada (A.G.), [2000] 2 S.C.R. 764, 2000 SCC 57). The balance of the
election campaign proceeded with the challenged provisions of the Canada Elections Act in place.
72 The sections challenged in Harper included: (1) the restriction of third party advertising
expenditures during elections to $3,000 per constituency and $150,000 nationally (section 350); (2)
the prevention of third parties from dividing or combining to avoid the application of advertising
expenditures (section 351); (3) the restriction of third parties from advertising within twenty-four
hours of the close of polls (section 323); (4) the compelling of third parties to track and report
election-related expenditures (sections 359, 360); (5) the prohibition of third parties from spending
contributions from foreign nationals on election advertising (section 358); and (6) obligating third
party advertisements to contain a statement identifying the sponsor of the advertisement (section 352)
(see Harper, supra note 10 at para. 1). The last item challenged, identification of the sponsor, raises
important questions, but was dismissed without due consideration. While there are arguments in
favour of the constitutionality of the identification requirement, the U.S. Supreme Court has found
some anonymous campaigning to be protected by the First Amendment. See McIntyre v. Ohio
Elections Commission, 514 U.S. 334 at 367, 115 S. Ct. 1151 (1995) [McIntyre]. At the very least, the
relevance of the arguments in McIntyre should have been canvassed by the trial judge.
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and alternative grounds for the decision in Harper.” Cairns J.’s principal conclusion
was that the restrictions on third party advertising were impermissibly vague. The
interpretation of the term “associated”, according to the government’s expert witness,
“should be relatively narrow.”” Cairns J., however, understood the evidence of the
chief electoral officer to be that “associated” might have a significantly wider ambit
and, in fact, might include all issues touched upon in a party or candidate’s election
materials. The chief electoral officer submitted that third parties could easily ascertain
what issues candidates and parties were associated with by reviewing published
election platforms or checking official campaign web sites. Cairns J. found that even
if it were possible to gather the information referred to by the chief electoral officer,
the indeterminacy of the word “associated” rendered it impossible for a third party to
be certain whether a specific issue advertisement was subject to the advertising
expenditure limits. Cairns J. feared that since the major parties take positions on
almost every issue of public concern, under such a broad interpretation of
“associated”, issue advocacy would be effectively proscribed during the course of an
election campaign. Cairns J. further explained that he was also “concerned about the
very broad discretion that is given to the Commissioner of Elections, whose duty it is
to ensure that the Act is complied with and enforced, in deciding to investigate and
prosecute a complaint which [deals] with ‘association’ issues”‘
Cairns J. concluded that even if the third party restrictions were not vague, then
surely they must be overbroad. Although he was concerned about the expenditure
levels imposed, he stated that if there were a pressing and substantial objective (which
he did not find), then “some deference should be accorded to Parliament”‘6 to
determine the precise (monetary) limits within a reasonable range of alternatives.
Cairns J., however, was not prepared to accord Parliament any deference with respect
to defining electoral expression. Indeed, he concluded that the third party restriction
was overbroad “because of the manner in which it captures not only pure partisan
advertising, but also a potentially broad range of informational advertising through the
workings of the definition of ‘election advertising’ set out in ss. 319 and 349 which
includes issues with which a party or, candidate is associated.”” The problem
identified by Cairns J., whether it is labelled vagueness or overbreadth, is the problem
inherent in definitions of election expenses.
” Cairns J.’s central alternative ground for invalidating the Canada Elections Act restrictions was
that there was no evidence that third party advertising expenditures have any impact on elections and,
as a consequence, the provisions did not address a “pressing and substantial” objective and, therefore,
were not justified in a free and democratic society. This ground is not dealt with in this article because
it is simply a rejection of the conclusion of Libman and raises no novel questions. The Supreme Court
of Canada will, of course, be forced to confront Cairns J.’s conclusion that they erred in Libman in
concluding that, in the abstract at least, political equality was a sufficient ground for expenditure
limits on third parties.
‘”Harper, supra note 10 at para. 203.
,Ibid. at para. 209.
I6lbid. at para. 288.
“Ibid.
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C. FEASBY- ISSUE ADVOCACY AND THIRD PARTIEs
B. Overbreadth in the U.K. and Canada
1. Overbreadth Theory and Doctrine
Overbroad statutes cast a wider net than is necessary to capture the activity about
which the legislature is concerned. The Supreme Court of Canada has frequently used
the term “overbreadth” to refer to measures that are more strict than necessary. For
example, in Libman the Court referred to the spending limit as being overbroad. The
problem in Libman, as understood by the Court, was that the quantum of the
permitted expense was inappropriately low. Overbreadth, however, is a term that is
better used to denote definitional problems. For example, a law prohibiting
individuals with prior convictions for sex-related crimes involving children from
loitering in areas where children are likely to congregate might be overbroad in a
geographic sense if it forbade such individuals from entering parks.” The overbreadth
of such a provision is manifest in the definition of “park”, which includes parks where
children are unlikely to be-such as wilderness parks.
Overbreadth is closely related to the doctrine of vagueness. Often, the most
plausible meaning of a vague law is an overbroad meaning.’ Concomitantly,
overbroad laws are often framed in vague terms. Both overbreadth and vagueness
impinge upon one of the basic precepts of the rule of law, namely the requirement that
a citizen be capable of knowing the law.’ Implicit in this rule is that the law must be
clear enough to permit citizens to govern their conduct accordingly. Vagueness is
problematic for two main reasons. First, vagueness denies citizens the ability to
govern their actions to avoid the sanction of the law. The risk attendant with an
inability to know what conduct is proscribed is that citizens will be discouraged from
engaging in constitutionally protected activity. Second, vague laws do not adequately
delineate the scope of discretion ceded to administrative officials.”
In a complex
‘8R. v. Heywood, [1994)3 S.C.R. 761 at 794-96, 94 C.C.C. (3d) 481 [Heywood cited to S.C.R.].
Richard H. Fallon, Jr., “Making Sense of Overbreadth” (1991) 100 Yale L.J. 853 at 905.
‘0 This is implicit in A.V. Dicey, Introduction to the Study of the Law of the Constitution, 10th ed.
(New York: St. Martin’s Press, 1959) at 248 (where it is argued that citizens should only be punished
for a distinct breach of the law). This is made clear by the European Court in discussing the meaning
of the term “prescribed by law” in Sunday limes v. United Kingdom (1979), 30 E.C.H.R. (Ser. A.) I
at 31, 2 E.H.R.R. 245 [Sunday imes]:
First, the law must be adequately accessible: the citizen must be able to have an
indication that is adequate in the circumstances of the legal rules applicable to a given
case. Secondly, a norm cannot be regarded as a “law” unless it is formulated with
sufficient precision to enable the citizen to regulate his conduct: he must be able-if
need be with appropriate advice–to foresee, to a degree that is reasonable in the
circumstances, the consequences which a given action may entail.
S, For a discussion of the connection between vagueness and discretion, see Robert C. Post,
“Reconceptualizing Vagueness: Legal Rules and Social Orders” (1994) 82 Cal. L. Rev. 491 at 494-98.
See also Lamer J.’s identification of the dangers of a “standardless sweep” by law enforcement as
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modem state, laws are necessarily cast in general terms because of the impossibility
imaginable
of conceiving or detailing the application of the
circumstance. The problem, then, is not lack of absolute precision in the law, but the
existence of unguided discretion that invites capricious enforcement.”
in every
law
Overbreadth, like vagueness, invites inconsistent and unprincipled enforcement.
Laws cast in terms so broad that the administering authority cannot reasonably
enforce the limit, are inherently problematic.,” When faced with a broad provision, an
administering authority may adopt informal and unstated guidelines for enforcement.
For example, a statute that prohibits loitering might be enforced against teenage males
at night and not against parishioners mingling outside church on Sunday momings.’
Overbreadth, in this way, can inhibit citizens’ ability to govern their conduct and
invites inconsistent and arbitrary enforcement.
Evaluation of overbreadth takes place within the justification analysis that is
applied under article 10(2) of the ECHR and section 1 of the Charter once a violation
of freedom of expression is found.”7 The inquiry is more formal and rigorous under
the Charter than under the ECHR. The Supreme Court of Canada has held that there
is no distinctive freedom of expression overbreadth doctrine in Canada that is directly
analogous to the First Amendment doctrine of overbreadth in the U.S.’ Instead,
overbreadth is considered to be a question of proportionality that is considered in the
context of the state’s justification for infringing constitutional rights.”7 Overbreadth, as
already noted, is closely related to the problem of vagueness. As a practical matter,
overbreadth and vagueness analyses are often conflated by courts. For example, while
Charter doctrine permits courts to consider vagueness as a preliminary matter before
weighing the constitutional merits of government policy, courts often consider
in the context of proportionality analyses.” Courts
vagueness with overbreadth
being one of the reasons to be wary of vagueness. Reference Re ss. 193 and 195.1(1)(c) of the
Criminal Code (Man.), [1990] 1 S.C.R. 1123 at 1157,4 W.W.R. 481.
‘2Timothy A.O. Endicott, Vagueness in Law (Oxford: Oxford University Press, 2000) at 203.
Geoffrey R. Stone et al., eds., Constitutional Law, 4th ed. (New York: Aspen Law & Business,
2001) at 1100-101.
” ‘Post, supra note 81 at 497.
“7Article 10(2) of the ECHR (supra note 12) reads: “The exercise of these freedoms, since it carries
with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or
penalties as are prescribed by law and are necessary in a democratic society” [emphasis added).
Section 1 of the Charter (supra note 11) reads: ‘”The Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by
law as can be demonstrably justified in afree and democratic society” [emphasis added].
“‘R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606 at 632, 93 D.L.R. (4th) 36 [Nova
Scotia Pharmaceutical cited to S.C.R.).
70 verbreadth is also an interpretive tool used under section 7. See Heywood, supra note 78 at 496-
97.
Vagueness may be considered as a preliminary matter where the court asks whether the limit is
“prescribed by law” under section 1 of the Charter. See Nova Scotia Pharmaceutical, supra note 86
at 632. This was Cairns J.’s approach in Harper. The European Court uses the same doctrinal
approach to vagueness. See e.g. Sunday Times, supra note 80.
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C. FEASBY- ISSUE ADVOCACY AND THIRD PARTIES
typically give vague terms the widest possible meaning and then question whether
that meaning is overbroad. The European Court, however, avoids this tendency and
considers vagueness as a preliminary question. Despite this difference, all definitional
questions concerning the Canada Elections Act and the PPERA are canvassed
together below.
The Charter’s analytical framework provides that once a violation of a protected
right has been identified, the question of whether the infringement is justified in a free
and democratic society must be determined by asking two questions. To begin with,
one must ask whether the objective of the legislation is “pressing and substantial”. If
the objective is pressing and substantial, then one must ask whether the means
employed to further the objective strike a proportionate balance between the infringed
right and the legislative objective.” The proportionality inquiry is made up of three
separate parts: (1) an assessment of whether there is a rational connection between the
objective and the means employed to realize the objective; (2) a determination of
whether the means employed to realize the objective impair the protected right more
than is necessary to achieve the objective; and (3) an evaluation of the salutary and
deleterious effects of the impugned provision. Overbreadth has been held to be an
issue for consideration under the second aspect of the proportionality analysis
(minimal impairment). When considering a question of minimal impairment, courts
ask whether the legislative objective might have been accomplished through less
drastic means. The standard developed under Oakes, however, does not demand that
legislatures employ the least drastic means conceivable. Rather, it has been held that
“[i]f the law falls within a range of reasonable alternatives, the courts will not find it
overbroad merely because they can conceive of an alternative which might better
tailor objective to infringement:”‘ Although some commentators have criticized the
Court’s approach as unduly deferential,9′ minimal impairment remains a significant
obstacle for broad legislative restrictions to overcome. 2
The evaluation of the proportionality between impaired rights and means chosen
to realize legislative objectives exists more in theory than in fact under the ECHR. The
European Court has not articulated a cogent analytical framework to consider
In part, this is attributable to the European Court’s role as a
proportionality.
I”R. v. Oakes, [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200 [Oakes].
RJR-MacDonald Inc. v. Canada (A.G.), [1995] 3 S.C.R. 199 at 342, 127 D.L.R. (4th) 1,
McLachlin J,
” For a critique of what is argued to be the Court’s overly deferential approach in freedom of
expression cases, see Jamie Cameron, “The Past, Present, and Future of Expressive Freedom Under
the Charter” (1997) 35 Osgoode Hall L.J. 1.
92 See e.g. Thomson Newspapers v. Canada (A.G.), [1998] 1 S.C.R. 877, 159 D.L.R. (4th) 385
(striking down opinion poll publication restrictions on the minimal impairment grounds); United Food
and Commercial Workers, Local 1518 v. KMart Canada Ltd., [1999] 2 S.C.R. 1083, 176 D.L.R. (4th)
607 (striking down the overbroad definition of “picketing” in the British Columbia Labour Relations
Code, R.S.B.C. 1996, c. 244).
9’ See Michael J. Beloff, “‘What Does it All Mean?’ Interpreting the Human Rights Act 1998” in
Lammy Betten, ed., The Human Rights Act 1998: What it Means (The Hague: Martinus Nijhoff
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supranational court. The European Court factors into its calculus considerations of
comity and the need to maintain flexibility to permit principles to be realized
differently in different national contexts. This necessity has given rise to a doctrine of
deference known as “margin of appreciation”. Under this doctrine, once it is
determined in the abstract that a legislative objective is important, the European Court
is loathe to question the means employed by a contracting state to realize the
objective.” As a result, the European Court does not often quibble with either the
breadth or the severity of restrictions on freedom of expression.”
How a doctrine of overbreadth might look in the domestic courts of the U.K.
under the HRA remains unclear. The HRA requires U.K. courts to consider European
Court cases, but does not make those cases binding upon the courts.” As a result, it
might be reasonable to suppose that judicial policing of overbreadth will be as tepid as
in the European Court.” There are reasons to believe, however, that such a supposition
might be wrong. In R. v. Director of Public Prosecutions, ex parte Kebilene, ” Lord
Hope held that
the European Court’s margin of appreciation doctrine was
inappropriate for domestic adjudication and stated instead that deference under the
HRA must be exercised only on “democratic grounds”.” Whether the recognition of
the inappropriateness of margin of appreciation will translate into a sceptical use of
Publishers, 1999) 11 (noting that with respect to proportionality, “courts have glossed the balance
struck” at 45).
See e.g. the holding of the European Commission in Miller v. Switzerland reprinted in the annex
of Miller v. Switzerland (1988), 133 E.C.H.R. (Ser. A) at 34-47, 13 E.H.R.R. 212. In that case, the
European Commission held:
The Commission does not agree with the Swiss courts that confiscation of Mr.
Mfiller’s paintings was the only alternative to destroying them outright which was
capable of protecting morals. Apart from the fact that the confiscation order was
automatic, in deciding whether confiscation was necessary to protect morals in a
democratic society the courts could have considered whether such measures as
prohibiting all further exhibition of the paintings or imposing a prior-permission
requirement or setting an age-limit for admission to the exhibition would have been
enough to protect morals within the meaning of Article 10 2 of the Convention.
(Ibid. at 45.) The European Court overturned the European Commission’s ruling, holding that,
“having regard to their margin of appreciation, the Swiss courts were entitled to hold that confiscation
of the paintings in issue was ‘necessary’ for the protection of morals” (ibid. at 25).
” See P. van Dijk & GJ.H. van Hoof, Theory and Practice of the European Convention on Human
Rights, 3d ed. (The Hague: Kluwer Law International, 1998) at 94 (noting increasing deference in
recent judgments).
” Section 3(1) of the HRA provides that “[s]o far as it is possible to do so, primary legislation and
subordinate legislation must be read and given effect in a way which is compatible with the
Convention rights” (supra note 13).
“7 See Heleen Bosma, Freedom of Expression in England and under the ECHR: In Search of a
Common Ground: A Foundation for the Application of the Human Rights Act 1998 in English Law
(Antwerp: Intersentia, 2000) (advocating that U.K. jurisprudence emulate that of the European
Court).
” (1999), [20001 2 A.C. 326, 119991 3 W.L.R. 972 (H.L.) [cited to A.C.].
9 Ibid. at 381.
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C. FEAsBY- ISSUE ADVOCACY AND THIRD PARTIES
European Court precedents predicated upon the doctrine is yet to be determined.”
The recognition of the inappropriateness of the margin of appreciation doctrine in the
domestic context would seem to require that any court looking to a European Court
precedent should question how the case might have been decided in the absence of
margin of appreciation. If the rejection of margin of appreciation opens the door to a
less deferential understanding of what is necessary in a democratic society, then U.K.
courts may adopt a more stringent approach to overbreadth. Indeed, such an approach
can be inferred from the statements of Lord Steyn, who observed the following
shortly before the HRA took effect:
The starting point is now the right of freedom of expression, a right based on a
constitutional or higher legal order foundation. Exceptions to freedom of
expression must be justified as being necessary in a democracy. In other words,
freedom of expression is the rule and regulation of speech is the exception
requiring justification. The existence and width of any exception can only be
justified if it is underpinned by a pressing social need.””1
There is good reason to expect that, whatever the vigour of the approach of U.K.
courts, questions of overbreadth will be analyzed in much the same way in the U.K.
as they are in Canada. The Lords sitting as the Judicial Committee of the Privy
Council in de Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries,
Lands and Housing, 2 a case that arose under the Constitution of Antigua and
Barbuda,”3 had the opportunity to consider the appropriate framework for analyzing
overbreadth. The de Freitas case concerned an individual who was charged with
violating a provision of the Civil Service Act” that prohibited government employees
from publishing “expressions of opinion on matters of national or international
political controversy” except in limited circumstances where the prior approval of a
government minister was acquired.” The defendant asserted that the Civil Service Act
contravened his constitutional right of freedom of expression. The guarantee of
freedom of expression in the Constitution of Antigua and Barbuda is limited only to
the extent that restrictions may be placed on “public officers … for the proper
performance of their functions,” so long as those limits are “reasonably justifiable in a
democratic society.”‘ ” The Privy Council found the restrictions at issue in de Freitas
“Helen Fenwick & Gavin Phillipson, “Public Protest, the Human Rights Act and Judicial
Responses to Political Expression” [2000] P.L. 627 at 643-44.
“‘ Reynolds v. imes Newspapers Ltd. (1999), [2001] 2 A.C. 127 at 208, [1999] 4 All E.R. 609
(H.L.) [emphasis added].
02 (1998), [19991 1 A.C. 69, [1998] W.L.R. 675 (P.C.) [de Freitas cited to A.C.].
103 The Antigua and Barbuda Constitution Order 1981 (U.K.), S.I. 1981-1106, sch. 1, reprinted in
Albert P. Blaustein & Gisbert H. Flanz, eds., Constitutions of the Countries of the World, vol. 1
(Dobbs Ferry, N.Y.: Oceana Publications, 2002) [Constitution of Antigua and Barbuda].
“‘(Laws of Antigua and Barbuda), c. 87.
“‘i Civil Service Act, ibid., s. 10(3)(b), cited in de Freitas, supra note 102 at 74E-G.
“”‘Supra note 103, s. 12(4), cited in de Freitas, ibid.
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to be overbroad.'” In doing so, the Privy Council employed a modification of the
Canadian Charter analytical framework, which inquires as to whether
(i) the legislative objective is sufficiently important to justify limiting a
fundamental right; (ii) the measures designed to meet the legislative objective
are rationally connected to it; and (iii) the means used to impair the right or
freedom are no more than is necessary to accomplish the objective.'”‘
Lord Hope of Craighead recently suggested that the de Freitas analytical approach is
appropriate for the HRA. ‘O’
2.
Interpreting the Breadth of the PPERA and the Canada Elections
Act
a. Vagueness
A law regulating expression concerning issues or policies associated with a
candidate or political party will be vague if the issues or policies of candidates and
political parties cannot be determined with reasonable precision. The chief electoral
officer of Canada defended the Canada Elections Act limit on third party spending on
the grounds that a third party should be able to quickly ascertain the policies and
issues associated with a party or candidate by calling the candidate’s office or by
referring to the candidate or political party’s official internet site. ‘ This would be a
convincing rejoinder to allegations of vagueness if the information was in fact
available and if remedying an information deficit was all that was required to clarify
the application of the Canada Elections Act to third party expression. The word
“associated” in section 319 of the Canada Elections Act, however, raises two distinct
vagueness problems that cannot be resolved by improving access to information. The
first is the issue of the perspective from which the assessment of association is to be
, de Freitas also raised the question of vagueness in a roundabout way. The Court of Appeal of the
Eastern Caribbean Supreme Court (Antigua and Barbuda) recognized that the Civil Service Act
prohibition was hopelessly overbroad. As a remedy, the Court of Appeal read into the Civil Service
Act prohibition the qualification that a civil servant’s political expression was only limited “when his
forbearance from such publication is reasonably required for the proper performance of his official
functions” (de Freitas, ibid. at 77G). The Privy Council, however, found this formulation to be
intolerably vague. Indeed, it was held that in the context of interference with individual rights “a
degree of precision is required so that the individual will be able to know with some confidence where
the boundaries of legality may lie” (ibid. at 78G-H). The Privy Council further observed that
determining “where the line is to be drawn is a matter which cannot in fairness be left to the hazard of
individual [i.e., prosecutorial] decision” (ibid.).
‘”‘ de Freitas, ibid. at 80F-H.
’09 Pretty v. Director of Public Prosecutions (2001), [2002] 1 A.C. 800 at para. 93, [20011 3 W.L.R.
1598,2001 UKHL 61.
“1o Harper, supra note 10 at paras. 204-205. The same informational problem arises under section
85(3) of the PPERA (supra note 3), which refers to the “particular policies” of parties and candidates.
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C. FEASBY- ISSUE ADVOCACY AND THIRD PARTIES
made. The second is the issue of how close the connection between the speaker and
the subject matter must be before the two are considered to be “associated”.
Sections 319 and 350 of the Canada Elections Act do not state whether
association with issues is to be assessed from the perspective of the candidate/party or
the reasonable voter. Under the Canada Elections Act, is association to be gauged by
a candidate’s words and actions, or is association to be determined by voters’
impressions and understandings of a candidate? For example, a candidate may run on
a platform of economic reform and scrupulously avoid taking any explicit positions
on moral issues. At the same time, however, the hypothetical candidate is beset by a
public scandal involving alleged sexual relations with an intern. Opponents of the
candidate attack him on issues of “character”, “morality”, and “family values”.
Indeed, opinion surveys show that these issues are seen by many voters to be
“associated” with the hypothetical candidate. A similar scenario could be concocted
wherein a candidate who is a naturalized citizen is perceived by voters to be
the
associated with
characterization imposed upon her by her opponents despite the absence of such
issues from her platform.
issues as a result of latent prejudice or
immigration
The word “associated” used in section 319 of the Canada Elections Act is also
vague insofar as the degree of association required for something to be “associated” is
unclear from the face of the legislation. Even the addition of the adverb “particularly”
in subsection 350(2) of the Canada Elections Act dealing with constituency
campaigns does not significantly clarify what is meant by “associated”. The question
of degree of association remains because “particularly” is itself an indeterminate term.
When does a policy advocated by a third party bear sufficient resemblance to a policy
advocated by a political party to be subject to regulation? The problem may be
illustrated by an example that is plausible in Canada. Consider an election where the
adoption of the U.S. dollar is the dominant campaign issue. In such an election, all
candidates and parties can be expected to take positions for or against the adoption of
the new currency. Each party and candidate, however, can reasonably be expected to
hold views that cannot be simply reduced to “for” or “against”. Put simply, an election
is not a referendum. For example, Party A might be unequivocally opposed to the new
currency. Party B might favour the adoption of the U.S. dollar if certain circumstances
prevailed and specific protections were negotiated. Would a business group that ran an
advertisement that unequivocally favoured the adoption of the U.S. dollar be
considered to be advocating the policies of Party B or one of its candidates? On its
face, the business group’s advertisement is a distinct message that does not advocate
the particular policies of any party. At the same time, the business group’s position is
closer to the position of Party B than to that of Party A, and might reasonably be
expected to indirectly advance Party B’s fortunes. With respect to the Canada
Elections Act, the answer is unclear.
The PPERA is not as fraught with vagueness as the Canada Elections Act. The
PPERA is more clear (clearly overbroad) than the Canada Elections Act. This is not to
say, however, that the PPERA avoids the problem of vagueness entirely. Paragraph
85(3)(a) of the PPERA avoids the first vagueness problem that the Canada Elections
Act faces by clearly indicating that it is the party/candidate’s actions that matter, not
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voter impressions, in referring to parties and candidates who “advocate … particular
policies”. The approach of paragraph 85(3)(a) of the PPERA is preferable to the
Canada Elections Act approach in that it only captures expression concerning policies
with which parties and candidates are explicitly and voluntarily associated. Third
parties should be able to ascertain, by reference to official internet sites and other
published election material, which policies or issues a given party or candidate has
chosen to be associated with. Paragraph 85(3)(b) of the PPERA, however, undermines
paragraph 85(3)(a) by reintroducing vagueness. Paragraph 85(3)(b) extends third
party regulation to material that “otherwise enhance[s] the standing” of candidates
and political parties. The phrase “otherwise enhance” provides no guidance to third
parties and cannot be viewed as anything but hopelessly vague.
The PPERA tries to resolve the second vagueness problem that plagues the
Canada Elections Act by resorting to an objective test of the intention of the third
party (i.e., reasonable person test).” Such a test of intention, however, does not solve
the constitutional problems presented by vagueness. The test of intention outlined in
the PPERA provides little guidance to citizens on how to govern their conduct and it
does not accurately define the discretion accorded to the new Election Commission.
As a result, a person may be certain of her own intention in engaging in politically
expressive activity, but highly suspect of the intention that may be ascribed to her by
enforcement officials with reference to her overt acts and the text of her message. The
lack of guidance as to what contextual considerations might factor into the
determination of intent is also worrisome. Furthermore, to the extent that the
objectively assessed intent of an accused individual or organization is rebuttable, the
accused will be forced to lay bare her inner political motives or the organization’s
internal communications.”‘ This, in turn, raises significant constitutional concerns
regarding privacy, freedom of conscience, and freedom of association.
b. Breadth of the PPERA
The breadth of the definitions of election expenses and third party spending
restrictions in the PPERA and the Canada Elections Act must be ascertained by
interpretation before they can be measured against the underlying justification for the
provisions. The HRA is distinct from the Charter and other constitutional bills of
rights in that it grants the courts no remedial power. If a statutory measure is found to
violate the HRA, a court may only make a declaration of inconsistency; it cannot
strike down the statute, sever offending parts of the statute, or otherwise modify the
.. “‘Election material’ is material which can reasonably be regarded as intended to (a) promote or
procure electoral success at any relevant election … ” (PPERA, supra note 3, s. 85(3) [emphasis
added]).
“‘ Briffault, “Redrawing the Elections/Politics Line”, supra note 9 at 1777.
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C. FEASBY- ISSUE ADVOCACY AND THIRD PARTIES
application of the impugned provision.”‘ Under the HRA, the incompatible statute
remains in force until such time as it is amended by ministerial order or replaced by
new legislation.”‘ Because of the limited capacity of the courts under the HRA, great
emphasis is placed on section 3, which obliges courts to interpret statutory provisions
as “compatible” with the ECHR. Essentially, litigants can seek to accomplish by
methods of construction what they cannot accomplish by way of a declaration of
inconsistency. The defence of freedom of expression through the narrow construction
of limits is consistent with the traditional U.K. mode of guarding civil liberties and
may be viewed as reinforcing the common law, not replacing it. There is no
agreement, however, as to what is meant by a “compatible” interpretation.’3 An
aggressive approach to interpretation, as advocated by Lord Irvine, would resemble
the Canadian approach “6 to the interpretation of legislation using international
agreements:
It will not be necessary to find an ambiguity. On the contrary the courts will be
required to interpret legislation so as to uphold the Convention rights unless the
legislation itself is so clearly incompatible with the Convention that it is
impossible to do so.’
On the other hand, a more restrictive approach to interpretation using customary
principles of interpretation requiring ambiguity as a prerequisite for external
interpretive aids will not bolster the protection of freedom of expression. Indeed, the
latter approach would preserve the pre-HRA approach where international treaties and
conventions were only used as interpretive aids as a last resort. ‘
The wording of the PPERA third party expenditure provisions presents a
formidable challenge to attempts at narrow interpretation. The critical aspect of the
PPERA definition of “election material” in paragraph 85(3) is the objective test of
intention. A plain reading of paragraph 85(3) suggests that the provision is very broad
and, indeed, might effectively sweep up most paid political communications. In order
to avoid such a conclusion, a court might interpret the objective test of intention to
“‘ See e.g. Geoffrey Marshall, “‘Wo Kinds of Compatibility: More About Section 3 of the Human
Rights Act 1998” [1999] P.L. 377 (describing a declaration of inconsistency as “a species of booby
prize” at 382).
114 HRA, supra note 13, s. 10.
… For divergent views see e.g. Lord Irvine of Lairg, “The Development of Human Rights in Britain
under an Incorporated Convention on Human Rights” [1998] P.L. 221 at 228; Marshall, supra note
113; Francis Bennion, “What Interpretation is ‘Possible’ Under Section 3(1) of the Human Rights Act
1998?” [2000] PL. 77.
116 National Corn Growers Association v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, 74
D.L.R. (4th) 449. “The Court of Appeal’s suggestion that recourse to an international treaty is only
available where the provision of the domestic law is ambiguous on its face is to be rejected” (ibid. at
1371).
“‘ Lord Irvine of Lairg, supra note 115 at 228.
” See Marshall, supra note 113 (suggesting that “[flor determining what the legislature has enacted
the normal rules should suffice” at 383). For an example of an application of this approach, see R. v.
Radio Authority, exparte Bull (1996), [1998] Q.B. 294, [1997] 2 All E.R. 561 (C.A.).
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apply only to a third party’s principal intent. One could argue that a paid political
communication cannot reasonably be intended to enhance the standing of a candidate
or party if, viewed objectively and contextually, the promotion of a candidate or party
was not the principal purpose of the advertisement. Contextual factors such as the
proximity of an election and identification of a candidate, though precluded by section
85 from being determinative individually, might be used in concert to assess intention.
Consider how a political issue advertisement that did not name a candidate or political
party would be treated if it were placed three months before an election. Even if other
contextual factors suggested a connection to an election, the lack of proximity to an
election and the failure to identify a candidate or political party, taken together, would
be a strong indication that the principal intent of the advertiser was something other
than to enhance the standing of any political actor. The incidental effect of the
communication on the standing of any party or candidate would not be sufficient to
meet the objective test of intention. Under such an approach, the proviso in paragraph
85(3) that material may be election material even if it “can reasonably be regarded as
intended to achieve any other purpose as well” might be understood to apply only in
circumstances where it could be said that a third party has two or more equally
important objectives.
While the foregoing approach is a plausible reading of section 85 of the PPERA,
if an aggressive approach to interpretation is adopted under the HRA, such a test of
intention must be clearly framed if it is to avoid replicating the chilling effects
associated with vagueness and overbreadth. Such a clear explication of a principal
purpose test is constrained by the language of section 85 of the PPERA, which
deprives courts of the ability to frame guidelines or explicitly attach weight to certain
criteria. Moreover, the expansive language of the PPERA third party spending limits
leaves little doubt that the U.K. Parliament intended the breadth of the provisions to
be very wide. Such a view is consistent with the Neill Committee recommendations
(made after consideration of the impact of the HRA) that suggested that in drafting
what would become the PPERA, “the opportunity be taken to reconsider the
formulation of the definition of ‘election expenses’ … so as to ensure that it is drafted
in a way that makes clear the intention that the concept is not to be interpreted
In the face of Parliament’s clear preference for a broad interpretation
restrictively’
of the third party limits, a court would be hard pressed to impose a narrow
interpretation akin to the principal purpose approach.
c. Breadth of the Canada Elections Act
Under the Charter, a narrow interpretation of impugned provisions may resolve
any controversy concerning overbreadth. According to Dreidger’s classic statement
on interpretation, “the words of an Act are to be read in their entire context and in
their grammatical and ordinary sense harmoniously with the scheme of the Act, the
“9 U.K., “Neill Committee Report”, supra note 26 at 125.
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C. FEASBY – ISSUE ADVOCACY AND THIRD PARTIES
object of the Act, and the intention of Parliament””‘ When constitutional issues are
engaged, it is presumed that Parliament intended to enact constitutionally valid
legislation. As a result, where an impugned provision can be read in either a
constitutional or unconstitutional manner, the constitutional reading is to be preferred.
The Supreme Court of Canada recently observed that in the context of overbreadth,
“[t]he law must be construed, and interpretations that may minimize the alleged
overbreadth must be explored.”‘ 2’ Reading provisions down is less injurious to the
intent of Parliament than the remedies of severance or reading in.
The breadth of the Canada Elections Act expenditure restrictions turns on the
scope of the term “associated” in the definition of “election advertising” in section
319. The term “associated” denotes a connection but does not indicate whether it is a
weak or a strong connection. The stronger the connection that is found to be denoted
by the word “associated”,
the narrower the scope of the definition of “election
advertising expenses” and the less problematic third party expenditure limits are. One
alternative is to read “associated” as pertaining to issues that a candidate or party has
enumerated in campaign promotional material, as suggested by the chief electoral
officer in his testimony in Harper. The obvious benefit of this approach is that it is
objective. There are, however, two problems. First, as noted in the discussion of
vagueness, a practical constraint is the availability of information concerning
candidate and party positions. Second, and more problematic from an overbreadth
perspective, is the possibility that party platforms will be so thorough that between the
various parties no issue will be left unaccounted for. What appears to be a partial
restriction on political expression can, in practice, amount to a prohibition. Moreover,
in the fluid context of an election campaign, candidates and political parties could add
issues to their platforms or modify their stance on issues, thereby creating uncertainty
and further narrowing the ambit of permissible third party activity.
“Associated” could be read even more narrowly to pertain only to issues that are
“synonymous” with a candidate or party. Requiring an issue to be “synonymous” with
a candidate or party before coming within the ambit of regulation would significantly
narrow the application of the Canada Elections Act. Such a reading addresses the
problem identified in the context of the 1988 federal election and that prompted the
Lortie Commission recommendations. During the 1988 election, the Progressive
Conservative Party was closely identified with the Free Trade Agreement between
Canada and the U.S. and was publicly perceived, though not proven, to have benefited
from disproportionate third party spending in favour of the Free Trade Agreement. ’22
Reading “associated” as “synonymous” relieves much of the overbreadth problem in
an environment where there are only a small number of parties that can be viewed as
“synonymous” with one or more issues and where the number of issues so covered is
limited. Overbreadth is not relieved by such an interpretation when there are a large
20 Elmer A. Driedger, Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983) at 87.
1 R. v. Sharpe, [2001] 1 S.C.R. 45 at para. 32, 194 D.L.R. (4th) 1, 2001 SCC 2 [Sharpe].
122 Richard Johnston et aL, Letting the People Decide: Dynamics of a Canadian Election (Montreal
& Kingston: McGill-Queen’s University Press, 1992) at 163.
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number of single-issue parties. The existence of a large number of single-issue parties
effectively narrows the scope of permissible third party expression. For example, if
environmental issues were found to be synonymous with the Green Party, third party
advertising expenses concerning environmental issues might be regulated.”3 Under
this scenario,
into a squabble over whether some
environmental issues or all environmental issues are “synonymous” with the Green
Party and, indeed, what criteria are needed to establish that candidates or parties are
synonymous with issues.
the debate would descend
The only reading of “associated” that comes close to solving the overbreadth
problem without creating further difficulties is one that understands “associated” to be
descriptive of the content of the communication. A plain reading of section 319
suggests that “associated” refers to a prior or external association between a candidate
or party and an issue. It is possible, however, to read “associated” in section 319 as
referring to a connection internal to the advertisement (i.e., read “associated” as
“associates”). In other words, the association between the candidate or party and issue
must be evident in the language and imagery of the communication and not
determined with reference to contextual factors. In addition to the obvious tension
between such a narrow reading and the plain meaning of section 319, the narrow
reading is contrary to the legislative history of the provision. The origins of section
319 can be traced to the Lortie Commission’s recommendation for a sweeping
definition of “election expenses”. Although reading
the definition of “election
advertising expenses” to mean communication that “associates” a candidate or party
with an issue substantially narrows the ambit of the restrictions on third party
spending, it is probably inconsistent with the intent of Parliament. Unlike in Sharpe,
where the Supreme Court of Canada found that a restrictive interpretation of a
criminal charge for possession of child pornography was consistent with Parliament’s
intentions because “[t]hrough qualifications and defences Parliament indicated that it
that might harm children'””4 in the present
did not seek to catch all material
circumstances the only indication is that Parliament intended to sweep up as much
“2 On 7 November 2000-twenty days before election day–Greenpeace, the Sierra Club of
Canada, and many other environmental organizations co-sponsored a full page advertisement in The
Globe and Mail at A 12, which displayed sympathetic pictures of a bear, a dolphin, and a mother and
child and read as follows:
We Share the Same Environment, Only You can Vote.
Our health and well being, in fact, our very survival, depends on clean air, water, and
soil. The federal government’s environmental negligence is threatening the life of every
Canadian.
When your federal candidate comes to your door, ask them what they will do to ensure
the health of Canadians and our environment. Environmental protection must be a key
issue in the upcoming federal election.
24Sharpe, supra note 121 at para. 34.
Vote for a candidate who is committed to the environment.
2003]
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third party activity as possible. Given that the only available narrowing construction
of “associated” is manifestly at odds with both plain meaning and the legislative
history of third party spending limits, there is no possible conclusion other than that
section 319 and the limits predicated upon it are overbroad.
IV. Fixing the Issue Advocacy Problem
A. Less Drastic Approaches to Issue Advocacy
The preceding discussion showed how the Canada Elections Act and PPERA
restrictions on third party expression are overbroad. Establishing overbreadth,
however, does not resolve the question of validity. Under both the ECHR and the
Charter, overbroad statutes may be justified if the legislative objective is sufficiently
important and the overbreadth is minimized as much as reasonably possible.
Accordingly, it must be considered whether less drastic restrictions on third party
expression that still realize the legislative objective can be crafted.
One way to justify the overbroad limits in the Canada Elections Act and the
PPERA is to argue that any attempt to distinguish between political expression and
electoral expression is doomed to fail. If this could be established, the argument
would then be that the legislative objective is so important that it justifies the collateral
impact on third party issue advocacy. Indeed, this was the view of the Neill
Committee and the Lortie Commission. The Lortie Commission, in particular,
concluded that no meaningful distinction can be drawn between express advocacy and
issue advocacy.” Accepting for the moment that this view is correct, it should then be
considered whether it is tolerable to simply regulate all paid political expression
during an election period. In Canada, an election period commences when the prime
minister requests that the governor-general dissolve Parliament and issue an election
writ and runs for a maximum of thirty-six days until voting. In practice, this means
that political expression will be limited for approximately one month out of every four
years. Moreover, it may be noted that during the election period, save for
extraordinary circumstances, legislative activity is suspended. Correspondingly, it
may be presumed that lobbying-type political advertising intended to influence the
fate of matters pending before Parliament would cease or at least subside for the
duration of an election. Put differently, with the call of an election, pure issue speech
fades to the background and electioneering becomes the dominant mode of political
expression. If this is true, what appears to be an overbroad restriction of political
expression in concept might prove to be a fairly inconsequential limit in fact. The
same argument, however, cannot be made in support of the PPERA. The PPERA,
unlike the Canada Elections Act, reaches beyond the writ period. The PPERA
regulates all expenditures on material that “enhance[s] the standing” of any party or
“5 Canada, Final Report, supra note 27 at 340.
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candidate “in connection with future relevant elections (whether
otherwise): “‘
imminent or
While the Lortie Commission dismissed the idea that a distinction between
express advocacy and issue advocacy can be drawn, reform-minded U.S. scholars and
legislators continue to attempt to do just that under the strict conditions imposed by
the First Amendment. The efforts of reformers to temper the issue advocacy problem
in the U.S. show that a less restrictive alternative to the third party restrictions in the
Canada Elections Act and the PPERA might indeed exist. Richard Briffault proposes
a cautious reform using the basic principles laid down in Buckley.’7 Briffault argues
that Buckley does not mandate the existing definition of express advocacy. Rather, it
requires a definition of express advocacy that (a) avoids vagueness, (b) does not
consider the speaker’s intent, and (c) is not overbroad. As a result,
it should be constitutional to adopt a definition that regulates as election speech
any communication that (i) refers to a clearly identified candidate; (ii) is made
within a defined period before an election … ; and (iii) involves a sufficiently
large expenditure …2
these principles, Briffault proposes
A “large expenditure” is suggested to be an amount of one to five percent of the
“average expenditure of the winning candidate for the office in question in the two
preceding elections”‘ Using
that any
communication that uses the name or likeness of a candidate within a prescribed
period (e.g., four weeks) prior to an election should be presumed to be express
advocacy. This presumption “may be rebutted on a showing that, based on the content
and context of the speech, viewers, listeners, or readers are unlikely to treat it as an
election-related communication'”‘ The rebuttable presumption, though providing a
safety hatch for unfairly
impugned communications, has been criticized for
reintroducing vagueness to the equation.’3’
The recently adopted Bipartisan Campaign Reform Act features a definition of
“electioneering communication” that closely resembles the Briffault bright line test:
(i) The term ‘electioneering communication’ means any broadcast, cable, or
satellite communication which-
refers to a clearly identified candidate for Federal office;
(1)
(IH) is made within-
26 PPERA, supra note 3, s. 85(3). As noted above in Part IB.C.], under the PPERA the regulated
period is the 365 days immediately preceding an election.
27 Briffault, “Redrawing the Elections/Politics Line”, supra note 9. See also, Association of the Bar
of the City of New York, Commission on Campaign Finance Reform, Dollars and Democracy: A
Blueprint for Campaign Finance Reform (Executive Director: Richard Briffault) (New York: Fordham
University Press, 2000) at 140-49 [City of New York Bar Association, Dollars and Democracy].
“2 Briffault, “Redrawing the Elections/Politics Line”, ibid. at 1779.
.9.Ibid
“‘ City of New York Bar Association, Dollars and Democracy, supra note 127 at 147.
‘3’ Ibid. at 210 (comment of Jerome S. Fortinsky).
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(aa) 60 days before a general, special, or runoff election for the
office sought by the candidate; or
(bb) 30 days before a primary or preference election, or a
convention or caucus of a political party that has authority
to nominate a candidate, for the office sought by the
candidate; and
(HI) in the case of a communication which refers to a candidate for an
office other than President or Vice President, is targeted to the
relevant electorate.”‘
The Bipartisan Campaign Reform Act definition, unlike the Briffault test, does not
specifically provide for a rebuttable presumption or a dollar threshold below which
expenditures are not considered “electioneering communications”. It does, however,
create a similar effect to the threshold by applying only to expenditures over ten
thousand dollars.
test
One of the charges frequently laid against bright line tests in the First Amendment
context is that constitutionally protected speech is inadvertently swept into the
regulatory net. The problem with bright line tests is that they impose laser-like
precision upon a fuzzy reality. The U.S. Supreme Court in Buckley avoided the
problem of overbreadth by adopting a bright line
that was massively
underinclusive. The Briffault bright line test and the Bipartisan Campaign Reform Act
definition of electioneering communications
try to more accurately mark the
distinction between express advocacy and issue advocacy. These new approaches,
however, are no different from other bright line tests in that nuance is sacrificed for
precision. Richard Hasen observes, for example, that a large advertisement in The
New York Times shortly before a presidential election asking the president to intervene
in a labour dispute would be categorized by the Briffault bright line test as express
advocacy.’33 Hasen, however, defends the test on the grounds that in practice, false
positives like the labor dispute example will be rare. Applying the Briffault bright line
test to a comprehensive database of issue advertisements used during the 1998 and
2000 U.S. federal elections, Hasen found that 6.5 percent (calculated by total airtime)
of the 1998 advertisements caught by the Briffault bright line test were genuine issue
advertisements and that for 2000 this number dropped to a mere 0.2 percent.'” The
impact of the definition of electioneering communications found in congressional
reform proposals was also considered. The rates of false positives for the Bipartisan
Campaign Reform Act definition of electioneering communications by airtime were
,32 Supra note 6, 201(3). Note that section 201(3)(ii) provides that in the event that section
201(3)(i) is found to be unconstitutional, “‘electioneering communication’ means any broadcast …
which supports a candidate for that office, or attacks or opposes a candidate for that office (regardless
of whether the communication expressly advocates a vote for or against a candidate) and which also
is suggestive of no plausible meaning other than an exhortation to vote for or against a specific
candidate”
.33 Hasen, “Disclosure of Contributions and Expenditures”, supra note 5 at 279-80.
“‘ Hasen, “Measuring Overbreadth”, supra note 5 at 1796-97.
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13.8 percent in 1998 and 0.5 percent in 2000.'”‘ The difference between the results for
the Briffault bright line test and the Bipartisan Campaign Reform Act definition of
electioneering communication is attributable to the longer period (sixty versus thirty
days) stipulated in the Bipartisan Campaign Reform Act definition of electioneering
communications. The low rate of false positives under the Briffault bright line test,
Hasen argues, demonstrates that it has a minimal impact on protected expressive
activity and, if implemented, should not be found to be overbroad.
The example of the Briffault and Bipartisan Campaign Reform Act definitions
and Hasen’s empirical analysis of those definitions show that the Lortie Commission’s
conclusion that it is impossible to craft a definition that distinguishes between express
advocacy and issue advocacy cannot seriously be entertained. The PPERA and
Canada Elections Act definitions of election expenses and restrictions on third party
expenditures are unjustifiably overbroad. The question now is whether judicial
remedies might be employed to prune the provisions or whether they are irredeemable
and can only be remedied by judicial invalidation and subsequent legislative
reformulation.
B. Judicial Remedies
The vague and overbroad limits on third party advertising might be remedied
under the Charter by severing the offending provisions or by reading in an exception
or a defence.”‘ Here, the comparison between the HRA and the Charter diverges.
Under the HRA, reading in an exception is not possible. The closest analogue is an
amendment by ministerial order under section 10 of the HRA. A ministerial order may
be made in circumstances where there has been a judicial declaration of invalidity,
where the removal of the incompatibility with the ECHR is deemed necessary, and
where there are compelling reasons to make an amendment by order rather than by
legislation. Such circumstances are likely to arise in the situations involving the
PPERA because the irregular timing of elections under the parliamentary system
dictates that a minister will have little confidence that amending legislation can be put
in place before an election. Indeed, this problem is compounded by the fact that the
PPERA pertains to elections for regional assemblies and for members of the European
Parliament as well. A consideration of exceptions that might be read into third party
spending limits is relevant to the PPERA in that a ministerial order is likely to attempt
to resolve any incompatibility using a similarly minimal intrusion into the legislative
domain.
The most important consideration for a court when deciding whether to read a
qualification or exception into legislation is “what the legislature would likely have
done if it had known that its chosen measures would be found unconstitutional ” ‘
“‘Ibid. at 1796.
R. v. Schachter, [1992] 2 S.C.R. 679 at 697-98, 93 D.L.R. (4th) 1.
Vriend v. Alberta, [19981 1 S.C.R. 493 at para. 167, 156 D.L.R. (4th) 385 [Vriend].
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Recently, in the context of a prohibition on the possession of child pornography, the
Supreme Court of Canada read into the Criminal Code”3s exceptions for personal
writings and drawings that are exclusively for personal use.’3 The Court also has read
protection from discrimination on grounds of sexual orientation into provincial
human rights legislation.'” These cases show that
reading in will be appropriate only where (1) the legislative objective is obvious
and reading in would further that objective or constitute a lesser interference
with that objective than would striking down the legislation; (2) the choice of
means used by the legislature to further the legislation’s objective is not so
unequivocal that reading in would constitute an unacceptable intrusion into the
legislative domain; and (3) reading in would not require an intrusion into
legislative budgetary decisions so substantial as to change the nature of the
particular legislative enterprise.”‘
Each of these criteria can be satisfied in the case of the Canada Elections Act
spending limits on third parties. The salient question, however, is whether a workable
exception can be crafted.
One example of an exception to a third party spending limit is found in The
Elections Act, 1996’ of Saskatchewan. The SEA features what is known as the good
faith issue advocacy defence.'” Section 233 of the SEA prohibits all third party
expenses that “directly or indirectly” promote or oppose a candidate or party.'” The
SEA, however, exempts a third party from the application of the spending limit if the
third party establishes
that the expenses were incurred: (a) to gain support for views held by the
person on an issue of public policy, or to advance the aims of any organization
or association, other than a political party or an organization or association of a
partisan political character, of which the person is a member and on whose
behalf the expenses were incurred; and (b) in good faith and not to evade any
provisions of this Act that limit the amount of election expenses that may be
incurred by any other person.”5
5 R.S.C. 1985, c. C-46.
, ‘ Sharpe, supra note 121 at para. 128.
‘” Vriend, supra note 137.
” Sharpe, supra note 121 at para. 121.
’42Supra note 49.
‘,’ British Columbia’s Election Act contained a good faith issue advocacy exception similar in
substance to that found in the SEA, as well as a five thousand dollar ceiling on direct third party
expenditures. The British Columbia third party definition of “election expenses” and third party
expenditure limitation were challenged in Pacific Press v. British Columbia ([2000] 5 W.W.R. 219,
2000 BCSC 248 [Pacific Press]). The court in Pacific Press, much like the court in Somerville, ruled
that Parliament did not have a legitimate interest in regulating third party electoral expression. For that
reason the court did not have regard to the scope of the definition of “election expenses”.
‘” The constitutionality of the SEA is questionable following Libman given the outright prohibition
on incurring election expenses directly to promote or oppose a candidate or party.
45 Supra note 49, s. 278(5).
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If the SEA’s good faith issue advocacy defence were paired with the third party
expenditure ceilings in the Canada Elections Act instead of a prohibition on third
party advocacy as in the SEA, it would be a complete response to the problem of
overbreadth. Even so, two problems remain. First, the existence of a defence does not
necessarily guide the discretion of the commissioner of elections. A defence to a
charge may reduce the prospects of a successful prosecution, but it does nothing to
reduce the potential for abusive prosecutions. Second, under section 7 of the Charter,
as under the common law, courts will be reluctant to enforce a provision that requires
a defendant to prove her state of mind to exonerate herself.”‘ The good faith issue
advocacy defence differs from artistic merits defences in the context of obscenity and
child pornography cases in that artistic merit has been held to be determined
objectively without reference to the defendant’s subjective state of mind.”
C. Constitutional Dialogue and the Design of Legislative Sequels
A popular analogy for understanding Charter review is “dialogue”.”‘ A Charter
dialogue occurs when legislation is struck down, the court decision is considered by
Parliament, and a choice is made to either re-enact the invalidated law in revised form
or to abandon the field. According to this view, judicial review is democratic when it
invites legislative deliberation and response. One of the unstated prerequisites for an
effective dialogue is a common understanding of the underlying subject matter and
the constitutional deficiencies of the invalidated legislation. The Canadian and U.K.
dialogues concerning third party spending limits have been fundamentally flawed in
this respect. Bowman and Libman were primarily concerned with the question of
whether third party expenditures on election communications may be limited. The
scope of the relevant third party spending limits was discussed by the European Court
and the Supreme Court of Canada only in passing and, even then, without any degree
of clarity. Seemingly oblivious to this point, both the U.K. and Canadian Parliaments
took the decisions to be licenses to enact sweeping regulations of paid third party
expression. To be fair, the U.K. and Canadian Parliaments acted upon the advice of
independent commissions. Nevertheless, what is needed in both Canada and the U.K.
is a frank new dialogue about the permissible scope of political finance legislation.
Creative narrowing
to
interpretations and other judicial remedies are unable
6 See R. v. Roach (1978), 25 O.R. (2d) 767, 101 D.L.R. (3d) 736 (Co. Ct.) (applying common law
principles to avoid enforcing a similar good faith advocacy exception). Charter principles suggest the
same result. See R. v. Whyte, [1988] 2 S.C.R. 3, 51 D.L.R. (4th) 481. The good faith issue advocacy
defence would probably run afoul of the HRA as well. R. v. Lambert, [2001] 3 W.L.R. 206, 3 All E.R.
577.
141 Sharpe, supra note 121 at para. 63.
48 Peter W. Hogg & Allison A. Bushell, “The Charter Dialogue Between Courts and Legislatures
(Or Perhaps the Charter of Rights Isn’t Such a Bad Thing After All)” (1997) 35 Osgoode Hall L.J.
75. For debate over the meaning of “dialogue”, see Vriend, supra note 137 at para. 138, Cory and
lacobucci JJ.; Sauv6 v. Canada, 2002 SCC 68 at paras. 8-9, 104-108, McLachlin CJ.C. and Gonthier
J.
2003]
C. FEASBY- ISSUE ADVOCACY AND THIRD PARTIES
adequately resolve the problems of vagueness and overbreadth. What should be hoped
for is the swift demise of third party spending limits and related provisions in both
acts so that the U.K. and Canadian Parliaments can get on with the business of
constructing new issue advocacy restrictions that respect the role of third parties in the
democratic process.
Elsewhere I have written that third party spending limits are essential to the
construction of an egalitarian model of election regulation. This is quite different from
saying that third parties should be prohibited from participating in public electoral
debate. Indeed, I argued that “the voices of [third parties] should not be silenced; they
should be allowed to speak at a volume that is proportionate to their stake in the
[electoral] process.” ‘9 Embedded in this conclusion is the assumption that third party
expression may only be limited insofar as it is part of the electoral process. The
question that is germane to the drafting of third party spending controls is how to
distinguish expression relating to the electoral process from political expression
generally. In the U.S., under the First Amendment, it is accepted that limits on
political finance legislation must be narrowly drawn and set-off by bright lines. Bright
lines neutralize the chilling potential of political finance legislation by clearly marking
the boundary between regulated and unregulated conduct. At the same time, however,
bright lines are blunt instruments. The Buckley bright line test, drawn as narrowly as
possible, created the problem of sham issue advocacy that, together with the problem
of soft money, threatens the viability of political finance controls in the U.S. The
proposals made by U.S. reformers forced to accept the imperative of bright lines are
limited to drawing different lines and thus to crafting prescriptions that are fated to be
simultaneously overinclusive and underinclusive. Efforts to reform the PPERA and
Canada Elections Act are unlikely to be constrained to the same degree by freedom of
expression doctrine, although U.K. and Canadian law may yet be found to require
bright lines in circumstances where the chilling potential is judged to be particularly
high.
The most appropriate solution in the U.K. and Canadian contexts is the adoption
of a narrow objective test based upon the content of the message and that permits
limited consideration of identified contextual factors. Such a provision must, however,
be strictly defined in terms of time like the Briffault proposal and the Canada
Elections Act. An open-ended restriction on election expenses, no matter how
narrowly drawn in other respects, exceeds the underlying justification for limiting
election expenses. Similarly, the PPERA one-year limitation, though temporally
defined, is simply too long to be justifiable. One criticism that may be levelled against
the Briffault test and the Bipartisan Campaign Reform Act test in the U.S.
constitutional context is that the time period chosen (thirty days or sixty days) appears
Indeed, drawing a line is difficult in the U.S. system because there is no
arbitrary.’
49 Feasby, supra note 1 at 36.
,” See Samuel Issacharoff & Pamela S. Karlan, “The Hydraulics of Campaign Finance Reform”
(1999) 77 Tex. L. Rev. 1705 at 1716.
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[Vol. 48
obvious or natural boundary between politics generally and election campaigns. In
parliamentary systems, however, there is a very clear point at which campaigns switch
from low gear into high gear; namely, when an election writ is issued.’ To avoid the
problem of subjects of spending regulation front-loading or back-loading expenses,
any time limit must be phrased to catch expenditures on goods and services used
within the election period and not just expenses booked within the election period. Of
course, this approach will not catch all expenses that have an impact upon an election,
but it draws a logical line that can be expected to be effective without overreaching.
Conclusion
Distinguishing between issue advocacy and express advocacy will not solve all of
the problems associated with political finance controls. That distinction does little to
address the questions of whether limits on election expenses are set at appropriate
levels for candidates, political parties, and third parties; whether the formulae for
determining election expense limits are fair; or how election expense limits interact
with other political finance mechanisms such as state funding and the allocation of
free television broadcast time. Drawing such a line may not even solve all of the
problems associated with third party advocacy. Indeed, the possibility that there may
be some advertisements that will manage to communicate a partisan message
notwithstanding conformity with the proposed approach must be acknowledged.
Despite these caveats, the proposed approach (adopting a narrow objective test,
strictly defined by parliamentary legislation, that focusses on the content of the
message with very limited consideration of contextual factors) promises to enhance
the quality and, indeed, the quantity of political debate in elections without sacrificing
spending limits and the egalitarian principle of election regulation on the altar of
freedom of expression.
Postscript
As this issue of the McGill Law Journal was going to press, the Alberta Court of
Appeal upheld Cairns J.’s judgment in Harper in a two to one decision.”2 The
majority decision of Madam Justice Paperny, however, rejected Cairns J.’s finding that
the third party spending limits in the Canada Elections Act are vague. Instead, her
decision is based upon Cairns J.’s alternative ground; namely, that the objectives of the
third party spending limits in the Canada Elections Act are not pressing and
substantial. Papemy J.A. further went on to find that, even if the objective of the third
.. In recent elections there has been an increasing level of pre-writ advertising in both the U.K. and
Canada. While this pre-writ advertising also undermines deliberative equality, it is less effective and
less threatening
than campaign advertising. While it is reasonable to require disclosure of
expenditures on pre-writ political advertising, expenditure limits should not be countenanced.
Unlimited pre-writ political advertising reveals expenditure regulation as an imperfect guarantee of
equality of resources, but it is the price that must be paid for a vibrant and open political domain.
12 Harper v. Canada (A.G.), 2002 ABCA 301 [Harper (Alta. C.A.)].
2003]
C. FEASBY –
ISSUE ADVOCACY AND THIRD PARTIES
party spending limits were pressing and substantial, the limits were overbroad. While
the conclusion of the majority of the Alberta Court of Appeal with respect to the
overbreadth of the third party spending limits is correct in my view, Papemy J.A.’s
vagueness and overbreadth reasoning is problematic in several respects.
The majority reasons deal with vagueness as a preliminary matter separate from
overbreadth. Paperny J.A. begins her vagueness analysis quite correctly by focussing
on the impact of vagueness upon citizens, stating that “the law must be sufficiently
clear to permit citizens to foresee the consequences of their conduct and govern
themselves accordingly.”‘
By the time she concludes her vagueness analysis,
however, Papemy J.A. seems to have lost her concern for citizens and is instead fixed
on the question of whether “there is enough context to guide legal debate.”‘ 54 These
are two different things. The problem with Paperny J.A.’s vagueness analysis is of
interest not because her decision turns on it, but because it shows the tension between
the idea that the law must be sufficiently clear for citizens to govern themselves and
the concept of vagueness as it has developed in Canadian constitutional law. Among
other things, Harper is a useful opportunity for the Supreme Court of Canada to
clarify its doctrinal and theoretical approach to vagueness by stating once and for all
(1) whether vagueness should be considered as a preliminary matter or as an aspect of
minimal impairment; and (2) whether the relevant consideration is the ability of
citizens to govern themselves or the presence of sufficient guidance for legal debate.
The majority’s emphasis on context in defining the scope of the third party
spending limits in the Canada Elections Act is disconcerting given that the reasons
show a startling lack of appreciation of the context in question. The court observed
that the “Chief Electoral Officer or Commissioner of Elections has the discretion to
determine when the legislation is engaged and must give notice to third parties that
they must comply with the legislation.”‘ 155 There are four main problems with this
conclusion. First, the commissioner of elections (“Commissioner”), the authority
charged with enforcing the Canada Elections Act, is a passive regulator-the
Commissioner has insufficient resources to investigate and police Canada Elections
Act violations; instead, he or she relies upon complaints from citizens and referrals
from the chief electoral officer based on post-election financial returns. Second, the
idea that the Commissioner could give notice to a third party assumes that there is a
mechanism for preapproval of advertising messages, which there is not. What is a
third party to do if it broadcasts messages at a cost in excess of the statutory limits
with an honest belief that its communications are not subject to the Canada Elections
Act? Third, even if there was a system of preapproval,
it must be noted that
candidates, political parties, and participating third parties are subject to intense time
pressures during election campaigns. It is unreasonable to expect that during the cut
and thrust of an election campaign third parties will have the ability or resources to
Ibid. at para. 43.
‘ Ibid. at para. 61.
. Ibid. at para. 57.
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alter an advertising campaign or regroup and develop a different advertising campaign
based upon the advice of the chief electoral officer or the Commissioner. Third parties
must, with a reasonable degree of certainty, be able to determine what the law is and,
in the words of the majority of the Court of Appeal, “govern themselves accordingly”
prior to committing resources to an advertising campaign. Fourth, the Court of Appeal
overlooked the problem of the shifting ground of an election campaign-something
that the Lortie Commission certainly contemplated.” What is a third party to do if a
candidate or political party becomes “associated” with an issue promoted by the third
party during the course of a campaign?
The dissenting reasons of Mr. Justice Berger are more interesting than the
majority decision because he proposes a narrower interpretation of the Canada
Elections Act’s third party spending limits. Berger J.A. suggests that the third party
spending limits are engaged when “a reasonable person would perceive that third
party election advertising takes a position on an issue that is particularly associated
with a registered political party or a candidate” 157 This begs the question of what
criteria Berger J.A.’s reasonable person would use to determine whether an issue is
associated with a political party or candidate. Berger J.A. does not say. What he does
say is that he disagrees with the submission that the third party spending limits
embrace “potentially any topic and any issue.””‘ Assuming that in any given election
the various party platforms, taken together, state positions on all issues of public
interest, Berger J.A.’s reasonable person must demand more than mere mention of an
issue in a campaign platform before third party spending limits are engaged. The
precise level of association required under Berger J.A.’s objective test is unclear.
Though a step in the right direction, Berger J.A.’s objective test fails because it
replicates the vagueness and overbreadth of the Canada Elections Act. If Harper is
appealed and is given leave to be heard, the Supreme Court of Canada may be
tempted to flesh out Berger J.A.’s objective test of “association”. The Supreme Court
of Canada, however, would be wiser to strike down the third party spending limits and
give Parliament the opportunity to enact clearer and narrower restrictions.
Canada, Final Report, supra note 27.
Harper (Alta. C.A.), supra note 152 at para. 227.
153 Ibid.
