McGill Law Journal Revue de droit de McGill
THIRD PARTIES AND DEMOCRACY 2.0
Lonid Sirota*
Although the Supreme Court of Canada has
described freedom of political, and especially electoral,
debate as the most important aspect of the protection
of freedom of expression in Canada, no debate in Ca-
nadian society is so regulated as that which takes
place during an electoral campaign. Parliament has
set upand the Supreme Court has embracedan
egalitarian model of elections, under which the
amount of money participants in that debate can
spend to make their views heard is strictly limited.
Third partiesthose participants in pre-electoral
debate who are neither political parties nor candi-
dates for officeare subject to especially strict expense
limits. In addition to limiting the role of money in poli-
tics, this regulatory approach was intended to put po-
litical parties front and centre at election time.
This article argues that changes since the de-
velopment of the egalitarian model have under-
mined the assumptions behind it and necessitate
its re-examination. On the one hand, since the
1970s, political parties have been increasingly
abandoning their role as essential suppliers in the
marketplace of ideas to the actors of civil society,
such as NGOs, unions, and social movements. On
the other hand, over the last few years, the devel-
opment of new communication technologies and
business models associated with Web 2.0 has al-
lowed those who wish to take part in pre-electoral
debate to do so at minimal or no cost. This separa-
tion of spending and speech means that the current
framework for regulating the pre-electoral partici-
pation of third parties is no longer sufficient to
maintain political parties privileged position in
pre-electoral debate. While the current regulatory
framework may still have benefits in limiting (the ap-
pearance of) corruption that can result from the ex-
cessive influence of money on the political process,
any attempts to expand it to limit the online partici-
pation of third parties must be resisted.
Bien que la Cour suprme du Canada ait d-
crit la libert du dbat politique, et surtout lecto-
ral, comme tant laspect le plus important de la
protection de la libert dexpression au Canada,
aucun dbat dans la socit canadienne nest aussi
rglement que celui qui accompagne une cam-
pagne lectorale. Le Parlement a mis en place, et la
Cour suprme a entrin, un modle lectoral
galitaire qui limite strictement les dpenses que
peuvent encourir les participants ce dbat afin de
faire entendre leur point de vue. Les tiers les
participants au dbat pr-lectoral qui ne sont ni
des partis politiques ni des candidats sont assu-
jettis des limites particulirement svres. En
plus de limiter le rle de largent en politique, cette
approche rglementaire devait placer les partis po-
litiques sur le devant de la scne pr-lectorale.
Cet article soutient que les changements sur-
venus depuis le dveloppement du modle lecto-
ral galitaire ont min les prsuppositions qui le
sous-tendent, et en rendent ncessaire le rexa-
men. Dune part, depuis les annes 1970, les partis
politiques dlaissent de plus en plus leur rle de
fournisseurs essentiels dans le march des ides au
profit des participants de la socit civile, tels les
ONG, les syndicats et les mouvements sociaux.
Dautre part, ces dernires annes, le dveloppe-
ment de nouvelles technologies de communication
et modles dentreprises associs au web 2.0 a
permis ceux qui souhaitent participer au dbat
pr-lectoral de le faire cot minime ou nul. Cette
sparation des dpenses et du discours fait en sorte
que le cadre actuel de rglementation de la partici-
pation lectorale des tiers ne suffit plus pour
prserver la position privilgie des partis poli-
tiques dans le dbat pr-electoral. Bien que le
cadre rglementaire actuel puisse encore prsenter
des avantages pour la rduction de la corruption
relle ou apparente, qui peut rsulter de linfluence
excessive de largent sur le processus politique, il
faudrait rsister toute tentative de ltendre en
vue de limiter la participation en ligne des tiers.
* B.C.L./LL.B. (Hons) (McGill), LL.M., J.S.D. Candidate (NYU). I am grateful to Simon
W. Bessette, Michael Pal, Emmanuelle Richez, Maxime St-Hilaire, Emily Kidd White,
as well as the anonymous reviewers for comments on previous versions of this paper.
Citation: (2015) 60:2 McGill LJ 253 Rfrence : (2015) 60 : 2 RD McGill 253
Lonid Sirota 2015
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254
Introduction
I.
The Supreme Court and Electoral Debate
A. Libman
B. Harper
II.
The Egalitarian Model of Elections
III.
IV.
Egalitarian Elections and Party Democracy: Who
Gets to Play on a Level Field?
Audience Democracy and the Egalitarian Model
A. From Party Democracy to Audience Democracy
B. Canada as an Audience Democracy
C. The Egalitarian Model and Audience Democracy
V.
The Separation of Third-Party Participation
VI.
The Future of Third-Party Participation
Conclusion
255
258
258
260
262
265
271
271
276
281
284
287
291
THIRD PARTIES AND DEMOCRACY 2.0 255
Introduction
The electoral process, parliamentary institutions, and freedom of ex-
pression operate in a curiously complex relationship in Canadian consti-
tutional law. Well before the entrenchment of the Canadian Charter of
Rights and Freedoms,1 F.R. Scott was able to claim that [s]o long as the
word parliament remains in the text of the constitution, there is a bill of
rights.2 What made such a claim possible, if perhaps optimistic, were the
statements of some of the judges of the Supreme Court of Canada, to the
effect that the existence of a national legislature meant that freedom of
speech was also a national, and not a merely provincial matter.3 In a sub-
sequent case, Justice Abbott would insist that the constitutional and legis-
lative provisions instituting elections for Parliament necessarily imply
the right of candidates for Parliament or for a Legislature, and of citizens
generally, to explain, criticize, debate and discuss in the freest possible
manner such matters as the qualifications, the policies, and the political,
economic and social principles advocated by such candidates or by the po-
litical parties or groups of which they may be members.4 According to
Justice Abbott, this right could not be abrogatedeither by provincial leg-
islatures or even by Parliament itself.5 Yet the free discussion so essential
to the existence of democracy and of parliamentary institutions is at no
point so constrained as during electoral campaigns. No debate in Canadi-
an society is so regulated as the one at the heart of our parliamentary
democracy and thus of the protection of the freedom of expression.
This regulation of pre-electoral6 debate has taken many forms. For ex-
ample, Parliament restricts the amount of money candidates and parties
can spend during election campaigns.7 Parliament requires broadcasters
to provide candidates and parties with airtime, some of it free of charge.8
1 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
2 Frank R Scott, Political Nationalism and Confederation in Frank R Scott, Essays on
the Constitution: Aspects of Canadian Law and Politics (Toronto: University of Toronto
Press, 1977) 3 at 28 ×. (the essay was originally a lecture delivered in
1942).
3 Reference Re Alberta Statutes, [1938] SCR 100 at 134, 2 DLR 81, Duff CJ [Re Alberta
Statutes].
4 Switzman v Elbling, [1957] SCR 285 at 327, 7 DLR (2d) 337 [Switzman].
5 See Switzman, supra note 4 at 328.
6 In this article, the terms pre-election and pre-electoral refer to the campaign period
immediately preceding an election.
7 See Canada Elections Act, SC 2000, c 9, s 422 [CEA].
8 See ibid, ss 335(1), 345(1).
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It prohibits the dissemination of election advertising on election day.9 It
imposes detailed conditions on the publication of the results of opinion
polls10and attempted to prohibit their publication altogether in the
three days preceding an election, before the Supreme Court declared this
prohibition unconstitutional.11 None of these restrictions on the ways in
which political parties and candidates, as well as their records and plat-
forms, can be discussed apply outside of the immediate pre-election peri-
od.
Yet another important restriction on political debate that only applies
during electoral campaigns concerns third parties: individuals who are
not candidates for office and groups or organizations that are not political
parties.12 Parliament limited their expenses to $150,000 during an elec-
tion campaign, of which no more than $3,000 may be spent on supporting
or opposing a candidate in a single electoral district.13 A permanent re-
striction on individuals or civil society groups wishing to speak outand
wishing to spend their money on speaking outon political issues, parties,
or candidates would surely be considered draconian and incompatible
with our right to … debate and discuss in the freest possible manner on
these matters.14 But Parliament has thought it necessary to restrict third
parties participation in the political debate during election campaigns
9 See ibid, s 323(1). But see ibid, ss 323(2), 324 (exceptions for certain Internet messages,
leader-attended events, and distribution of certain printed materials).
10 See ibid, ss 32628.
11 See Thomson Newspapers Co v Canada (AG), [1998] 1 SCR 877, 159 DLR (4th) 385. But
see CEA, supra note 7, s 328 (prohibiting the transmission of new opinion poll results
on election day).
12 See ibid, s 349.
13 See ibid, s 350(1)(2) (these amounts are adjusted for inflation, s 350(5)). See also Elec-
tions Canada, Limit on Election Advertising Expenses Incurred by Third Parties,
online: Elections Canada
election were $188,250 and $3,765 respectively). See also Fair Elections Act, SC 2014, c
12, s 78.1 (recently enacted amendments to the CEA will provide that only Canadian
citizens or residents, groups led by Canadian citizens or residents, or corporations car-
rying on business in Canada are allowed to spend these amounts; others are limited to
the sum of $500).
14 Switzman, supra note 4 at 327. Indeed, the British Columbia Court of Appeal has twice
declared unconstitutional provincial legislation imposing such limits during pre-
campaign periods (see British Columbia Teachers Federation v British Columbia (AG),
2011 BCCA 408, 23 BCLR (5th) 65 [BCTF] (invalidating a sixty-day limit); Reference re
Election Act (BC), 2012 BCCA 394, 355 DLR (4th) 289 (invalidating a limit that could
extend up to 40 days)).
THIRD PARTIES AND DEMOCRACY 2.0 257
since the 1970s.15 In addition, the Supreme Court initially upheld the
principle of third-party spending restrictions16 and, subsequently, the spe-
cific scheme enacted by Parliament in the CEA.17
My purpose in this article is to explore the assumptions underlying
these decisions and the ways in which (more or less) recent and ongoing
changes are undermining these assumptions, thus potentially destabiliz-
ing the CEAs framework for regulating third-party participation in pre-
electoral debate. I begin, in Part I, by reviewing the Supreme Courts two
major decisions on third-party participation, Libman and Harper. In Part
II, I describe in more detail the egalitarian model of elections … premised
on the notion that individuals should have an equal opportunity to partic-
ipate in the electoral process18 without regard to wealth, which the CEA
and these decisions embrace. In Part III, I explore the assumptions that
the CEA and the Supreme Court make about the nature of the political
process and the central role that political parties play in it. Then, in Part
IV, I describe the changes that have occurred in politics since the frame-
work for regulating third-party participation embodied in the CEA was
first conceived. I illustrate the effects of these changes by using the 2011
federal election as an example and show that the assumptions behind the
CEAs framework are no longer valid. This challenges the privileged posi-
tion of political parties in pre-electoral debate. In Part V, I focus on anoth-
er, more recent change that I describe as the separation of spending and
speech: the emergence of new technologies and business models, in par-
ticular those associated with Web 2.0social networks, blogs, video
sharing services, and the likewhich make it possible for third parties to
communicate with large numbers of voters without spending much, if any,
money. Finally, in Part VI, I explore the implications of these changes for
regulating third-party participation in pre-electoral debates. I conclude
that what might be called electoral campaigning 2.019 does not, in itself,
require radical changes to the current legal framework and only suggest
two limited amendments to the CEA. Nevertheless, the changes in politics
and technology that I describe are significant. Ignoring them is likely to
15 For a history of third-party spending restrictions in federal election law, see Andrew
Geddis, Libert, galit, Argent: Third Party Election Spending and the Charter
(2004) 42:2 Alta L Rev 429 at 43943.
16 See Libman v Quebec (AG), [1997] 3 SCR 569, 151 DLR (4th) 385 [Libman].
17 See Harper v Canada (AG), 2004 SCC 33, [2004] 1 SCR 827 [Harper].
18 Ibid at para 62. See also Colin Feasby, Libman v. Quebec (A.G.) and the Administra-
tion of the Process of Democracy under the Charter: The Emerging Egalitarian Model
(1999) 44:1 McGill LJ 5 [Feasby, Egalitarian Model].
19 See e.g. Vincent Marissal, La premire vraie campagne 2.0, La Presse (29 June 2012),
online:
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lead scholars, legislators, or judges to unrealistic, and possibly pernicious,
conclusions about the law of Canadian democracy.
I. The Supreme Court and Electoral Debate
The pre-Charter Implied Bill of Rights cases, in which some of the
Supreme Courts judges found a protection for freedom of speech
especially political speechimplicit in the constitutions establishment of
parliamentary institutions,20 did not concern pre-electoral debate. Indeed,
it is only in the 1970s that Parliament engaged in extensive regulation of
election campaigns and, for the first time, enacted rules governing the
participation of third parties.21 Canadian courts then had to address the
consistency of such regulation with the Charter following its entry into
force in 1982.
A. Libman
In the face of early lower court decisions unfavourable to regulating
third parties involvement in electoral campaigns,22 the Supreme Court
first confronted the issue in Libman. The case was a challenge to provi-
sions of Qubecs legislation governing referenda, which allowed for the
constitution of official committees to campaign for either side of a referen-
dum question and prevented persons or organizations who were not
members of or affiliated with one of the committees from incurring almost
any campaigning expenses.23 The exceptions were largely limited to the
cost of publishing an article, editorial, or opinion piece in a periodical not
established for the purposes of the referendum campaign, the cost of a ra-
dio or television news or public affairs broadcast, as well as various per-
sonal expenses an individual might incur in volunteering on the cam-
paign.24
The Supreme Court had no difficulty in finding that this legislation in-
fringed the Charters guarantee of freedom of expression.25 The real issue
20 See supra notes 25, and accompanying text.
21 See Geddis, supra note 15 at 439; Feasby, Egalitarian Model, supra note 18 at 18.
22 See e.g. National Citizens Coalition Inc v Canada (AG) (1984), 11 DLR (4th) 481, 32 Al-
ta LR (2d) 249 (Alta QB); Canada (AG) v Somerville, 1996 ABCA 217, 136 DLR (4th)
205. See also Geddis, supra note 15 at 44043; Feasby, Egalitarian Model, supra note
18 at 2326.
23 See Referendum Act, RSQ 1978, c C-64.1, s 23, amending Election Act, RSQ c E-3.3, s
413.
24 Ibid, s 404.
25 See Libman, supra note 16 at 594.
THIRD PARTIES AND DEMOCRACY 2.0 259
was whether the infringement was saved by section 1 of the Charter as a
reasonable [limit] prescribed by law [that] can be demonstrably justified
in a free and democratic society.26 The Court found that [t]he basic ob-
jective of the Act at issue is to guarantee the democratic nature of refer-
endums by promoting equality between the options submitted by the gov-
ernment and seeking to promote free and informed voting.27 More specifi-
cally, the purpose of spending limitations in the legislation, including the
prohibition on third parties spending, was to ensure the fairness of the
electoral process, which is a corollary of the political equality of citizens.28
Spending limits achieve fairness in three related ways. First, they
prevent the most affluent members of society from exerting a dispropor-
tionate influence by dominating the referendum debate through access to
greater resources.29 Second, they help voters make an informed decision
by preventing one voice from dominating the campaign. Third, they en-
sure that the campaign does not appear tainted by the influence of mon-
ey.30 Furthermore, spending by third parties, the purpose or effect of
which may be to favour the position of one of the contending sides, must
also be limited if the limits on spending by the participants in an election
or the committees representing the options in a referendum are to be ef-
fective.31 Indeed, the limits on spending by each separate third party must
be low, lest an imbalance in the number of third parties supporting one
side over another undermine the fairness of the electoral debate.32 Thus
the Supreme Court approved, in principle, substantial limitations on the
ability of third parties to spend to intervene in a pre-referendum (or pre-
electoral) campaign.
It held, however, that Qubecs legislation went too far in not only cur-
tailing, but completely eliminating third parties ability to spend money in
the campaign.33 This prohibition was so severe as to silence not only the
wealthy who might wield unfair influence, but even the least affluent.34
The Court struck down the impugned provisions, but made it clear that a
somewhat less draconian version would be constitutional. It concluded by
asserting that [f]reedom of political expression, so dear to our democratic
26 Charter, supra note 1, s 1.
27 Libman, supra note 16 at 596.
28 See ibid at 59899.
29 Ibid at 59697.
30 Ibid.
31 See ibid at 603.
32 See ibid.
33 See ibid at 617618.
34 See ibid at 617.
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tradition, would lose much value if it could only be exercised in a context
in which the economic power of the most affluent members of society con-
stituted the ultimate guidepost of our political choices.35 This was all the
encouragement the Qubec legislatureand Parliamentneeded to re-
impose strict limits on third-party spending.
B. Harper
Harper tested the constitutionality of Parliaments response to Lib-
man, which limited third-party spending during an election campaign to
$150,000 overall and $3,000 in any given electoral district.36 (A number of
other CEA provisions were also at issue, but they are not germane to this
discussion.) The government conceded that these limits infringed third
parties freedom of expression.37
The Supreme Court, however, rejected the claim that they also in-
fringed the Charters guarantee of the right to vote,38 which the Court had
previously interpreted as a right to meaningful participation in the elec-
toral process.39 While the Court accepted that in order to be meaningful,
participation must be informed,40 it focused not on the third parties po-
tential to inform voters, but on the danger that [i]n the absence of spend-
ing limits … the affluent or a number of persons or groups pooling their
resources and acting in concert [would come] to dominate the political dis-
course and to silence others.41 Unlimited spending thus threatens the
right to meaningful participation. Spending limits, provided that they are
not set so low as to restrict information in such a way as to undermine
the right of citizens to meaningfully participate in the political process
and to be effectively represented,42 do not infringe section 3 of the Char-
ter. The Court held that the limits set by the CEA passed this test.43
The main issue for the Supreme Court was, as in Libman, whether the
infringement on the third parties freedom of expression could be saved by
section 1 of the Charter. The Court held that scientific evidence of the
35 Ibid at 621.
36 See supra notes 1213, and accompanying text.
37 See Harper, supra note 17 at para 66.
38 Charter, supra note 1, s 3.
39 See Reference Re Prov Electoral Boundaries (Sask), [1991] 2 SCR 158, 81 DLR (4th) 16;
Figueroa v Canada (Attorney General), 2003 SCC 37, [2003] 1 SCR 912.
40 See Harper, supra note 17 at para 71.
41 Ibid at para 72.
42 Ibid at para 73.
43 See ibid at para 74.
THIRD PARTIES AND DEMOCRACY 2.0 261
harm Parliament sought to prevent by enacting the restrictions at issue
was not required: logic, reason and some social science evidence44 could
lead to a reasoned apprehension of that harm,45 which in turn could suf-
fice to find the restrictions justified.46 The objective of the prohibition on
third-party advertising was to protect both the voters and the political
parties and their candidates47 by fostering electoral fairness48 and, more
specifically, to promote equality in the political discourse; … to protect
the integrity of the financing regime applicable to candidates and parties;
and … to ensure that voters have confidence in the electoral process.49
The Court found that these objectives were pressing and substantial,50
and that restrictions on third-party spending were rational ways of attain-
ing these objectives, even though such restrictions were not supported by
solid evidence..51
The Court also held that the limits on third-party advertising imposed
by Parliament passed the minimal impairment test. In the Courts view,
the participation of most citizens was, in any case, limited by their lack of
means rather than by the CEAs provisions;52 besides, the amount of the
expenses allowed by the CEA leaves room for some expensive advertising
or a significant amount of low cost forms of advertising, in addition to
those forms of advocacy altogether exempted from the limits, such as ad-
vertising not related to specific candidates or certain types of publications
in the news media.53 The Court found that the positive effects of the re-
strictions on third-party advertising in achieving Parliaments objectives
outweighed the deleterious effects of curtailing third parties freedom of
expression, and upheld the limitations.54
Unlike in Libman, where the Supreme Courts judgment was unani-
mous (and indeed per curiam), three judges dissented in Harper. Writing
for themselves and Justice Binnie, Chief Justice McLachlin and Justice
44 Ibid at para 78.
45 Ibid at para 77.
46 See ibid at para 88.
47 See ibid at paras 8081.
48 Ibid at para 91.
49 Ibid at para 92.
50 See ibid at paras 101103.
51 See ibid at paras 105109.
52 See ibid at para 113.
53 Ibid at para 115.
54 The Court also upheld some related provisions of the CEA, notably those imposing dis-
closure and reporting requirements on third parties incurring expenses above certain
thresholds (ibid at paras 13646).
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Major were of the view that [t]he law at issue sets advertising spending
limits for citizens called third parties at such low levels that they
cannot effectively communicate with their fellow citizens on election is-
sues during an election campaign.55 They noted that the limits on third-
party advertising set by the CEA, which are much lower than the limits
imposed on political parties, had the effect of putting political parties at
the centre of electoral debate, despite the fact that the right to take part
in this debate belongs to citizens as well as political parties.56 While agree-
ing with the majority that the objectives invoked by the government were
pressing and substantial, the dissenters would have held that the severity
of the limitations on freedom of expression, combined with the wholly
hypothetical57 character of the risks invoked by the government, meant
that the limits imposed by Parliament were not minimally impairing and
were, in any case, a disproportionate means of achieving Parliaments ob-
jectives.58
II. The Egalitarian Model of Elections
Colin Feasby has described the approach to regulating electoral cam-
paigning chosen by Parliament and approved by the Supreme Court in
Libman as the egalitarian model of democracy,59 a description endorsed
by the Supreme Court in Harper. Reflecting, as Feasby points out,60 the
work of John Rawls, whose Theory of Justice61 is a near contemporary of
Parliaments first attempt at regulating electoral campaigning and spend-
ing, this approach seeks to translate the formal equality of voters into a
substantive equality of citizens by insisting on the fairness of the electoral
process.
According to Rawls, citizens must have a fair opportunity to take part
in and to influence the political process. … [I]deally, those similarly en-
dowed and motivated should have roughly the same chance of attaining
positions of political authority irrespective of their economic and social
class.62 Although the impact of differences in talents and motivation is
55 Ibid at para 2.
56 See ibid at paras 2, 1314.
57 Ibid at para 34.
58 Ibid at paras 3335, 41.
59 Feasby, Egalitarian Model, supra note 18; Harper, supra note 17 at para 62 (endors-
ing this description).
60 Feasby, Egalitarian Model, supra note 18 at 912.
61 John Rawls, A Theory of Justice (Cambridge, Mass: Belknap, 1971) [Rawls, Theory].
62 Ibid at 22425.
THIRD PARTIES AND DEMOCRACY 2.0 263
acceptable, economic differences must have as little effect as possible on
the citizens political influence. [W]ealth, said the Supreme Court in
Harper, is the main obstacle to equal participation.63 This means, above
all, that the power of money in politics must be tamed.
For the Supreme Court, the danger of money is that it allows those
who have more of it to dominate pre-electoral debate, indeed to the point
of silencing other voices, in violation of the principle of equality between
the citizens. This echoes Rawlss concern that democratic participation
lose[s] much of [its] value whenever those who have greater private
means are permitted to use their advantages to control the course of pub-
lic debate.64 But for Rawls the reason for this is that eventually these in-
equalities will enable those better situated to exercise a larger influence
over the development of legislation. In due time they 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.65 Rawlss con-
cern seems to be not so much abstract equality or fairness as the risk that
the wealthy will act as a class in order to (successfully) resist the adoption
of egalitarian, redistributive policies. The Supreme Courts abstract egali-
tarianism might be less overtly results oriented, but its concern that the
wealthy will control … the electoral process to the detriment of others
with less economic power66 suggests that for it too, fairness is a matter of
class competition, and not just abstract philosophy.
According to Rawls, in order to resist the threat of a capture of the po-
litical process by the wealthy, the state must ensure that political parties
[will] be autonomous with respect to private demands, that is, demands
not expressed in the public forum and argued for openly by reference to a
conception of the public good.67 It can do so, for example, by subsidizing
political parties and providing support for public political discussion.68
Even after direct subsidies to political parties are phased out, the CEA
will continue to do this, notably by making donations to parties tax-
deductible and by providing parties with free broadcasting time. But of
course, if the aim is to prevent the wealthy from capturing the political
process by dominating public debate, silencing them (or, at least, muffling
their voices, so that they are not heard more loudly than those of others)
63 Harper, supra note 17 at para 62.
64 Rawls, Theory, supra note 61 at 225.
65 Ibid.
66 Harper, supra note 17 at para 62.
67 Rawls, Theory, supra note 61 at 226.
68 Ibid at 22526.
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264
is at least as effective a policy. Although Rawls did not discuss this possi-
bility in A Theory of Justice, he did so in his later work, Political Liberal-
ism.69 As the Supreme Court recognized, the CEAs restrictions on the
participation of third parties in pre-electoral debate serve this purpose70
(as do the provisions limiting contributions to political parties and the
parties expenditures).
It is possible to formulate several criticisms of the egalitarian model of
democracy, based as it is on a fear of the wealthy and a perceived need to
check their influence by equalizing pre-electoral debate. One potential
line of criticism could be empirical. It would consist in pointing out that,
contrary to Rawlss belief, the wealthy do not normally agree … in regard
to those things that support their favoured circumstances, at least not
more than the vast majority of citizens in Western liberal democracies.71
They are not a united block, and could not capture the political process in
their own interests because they disagree about what these interests are.
Another, more philosophical line of criticism is that developed by
Ronald Dworkin in an article on the meaning of political equality.72
Dworkin pointed out that the Rawlsian egalitarian model lacks coherence
in that it is not concerned, even in an egalitarian society, with differ-
ences in interest, commitment, training, and reputation [which] might be
sources of differences in political influence.73 Yet trying to eliminate these
differences or the resulting disparity in political influence would conflict
with our notions of equality and personal autonomy. Thus, while [w]e
should … remedy the distributive injustices that account for a great deal
of the inequality in political influence of our own time, we should not be
concerned with equality of political influence for its own sake beyond
remedying those distinct injustices.74 The most radical line of criticism
69 John Rawls, Political Liberalism (New York: Columbia University Press, 1993) at 358.
70 Harper, supra note 17 at para 62.
71 Rawls, Theory, supra note 61 at 225. To be sure, one would probably be hard-pressed to
find billionaire communists. But communists are in short supply in any tax bracket. On
the other hand, champagne socialists and, more broadly, members of la gauche caviar,
are not so rare. Derision apart, one of the worlds richest men has famously advocated
raising taxes on wealthy Americans: see Warren E Buffett, Stop Coddling the Super-
Rich, New York Times (15 August 2011) A21.
72 Ronald Dworkin, What is Equality? Part 4: Political Equality (1987) 22:1 USF L Rev
1.
73 Ibid at 15.
74 Ibid at 18. In later writings, Dworkin changed his position at least somewhat, argu-
ingwith specific reference to Harperthat a level playing field in electoral discourse
is a pre-requisite for democracy, insofar as it is necessary to prevent the viewpoints of
the well off from monopolizing the marketplace of ideas, while warning against exces-
sive levelling down of the amounts people ought to be allowed to spend to propagate
THIRD PARTIES AND DEMOCRACY 2.0 265
rejects the very idea that equality (at least above the one-person one-vote
threshold) is something that the regulation of the political process should
be concerned with.
Last but not least, the structuralist critique of election law is a
strong argument to the effect that, although purportedly egalitarian, re-
strictions on the role of money in politics tend to benefit incumbents,
thereby entrenching those already in power, by making it more difficult
for challengers to overcome the incumbents advantages such as notoriety
and agenda-control.75
In this article, however, I want to pursue two different critiques of the
Rawlsian egalitarian model endorsed by Parliament and the Supreme
Court, focusing on assumptions on which this model rests and which have
lost force since its development in the early 1970s. One of these assump-
tions, to which I will return in Part V, consists in equating spending and
speech. The other, to which I now turn, concerns the place of political par-
ties in the egalitarian vision of democracy.
III. Egalitarian Elections and Party Democracy: Who Gets to Play on a
Level Field?
Although its proponents do not emphasize the point, the egalitarian
conception of democracy outlined by Rawls and adopted by both Parlia-
ment and the Supreme Court is inextricably linked with a certain model
of the electoral process. It is based on the assumption that political parties
and their platforms will be central to electoral politics. Thus, for Rawls,
the ideal electoral process is a form of fair rivalry for political office and
authority. By presenting conceptions of the public good and policies de-
signed to promote social ends, rival parties seek the citizens approval in
accordance with just procedural rules against a background of freedom of
thought and assembly.76 The Canadian approach to regulating pre-
electoral debate reflects similar views.
The historian John English described Parliaments choice to enact the
Election Expenses Act77 in 1974 as reflecting [then-Prime Minister Pierre]
Trudeaus own belief … that a broader political process was essential for
their views, which would create greater equality at the cost of silencing those holding
new or unpopular ideas altogether (Ronald Dworkin, The Decision that Threatens
Democracy, The New York Review of Books 57:8 (13 May 2010) 63).
75 Yasmin Dawood, Electoral Fairness and the Law of Democracy: A Structural Rights
Approach to Judicial Review (2012) 62:4 UTLJ 499 at 547.
76 Rawls, Theory, supra note 61 at 227 [emphasis added].
77 Election Expenses Act, SC 1973-74, c 51.
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Canadian democracy to flourish.78 Yet as English explains, this broader
political process, even the rhetoric of participatory democracy,79 was
meant to happen within the structure of the political party. Speaking at a
Liberal Party conference in 1969, Trudeau compare[d] the party to pilots
of a supersonic airplane. By the time an airport comes into the pilots field
of vision, it is too late to begin the landing procedure. Such planes must be
navigated by radar. A political party, in formulating policy, can act as a
societys radar. The conference itself, he continued, should be a super-
market of ideas.80
The Royal Commission on Electoral Reform and Party Financing
(known as the Lortie Commission), whose 1991 report81 provided re-
newed support for the regulation of third-party electoral spending and in
many ways formed the basis of the CEAs provisions on the subject,82 simi-
larly considered parties as central to the formulation of public policies and
political ideals. Although, as I will further explain below, its authors were
aware of the parties limitations in this regard, they argued that [t]he
parties need to recapture their position and reassert their role in the
realm of political education, policy development and value articulation,
including the creation of broader partisan networks.83 In their view, the
continued health of our democracy … requires that people in Canada be-
come more involved in political life through political parties84, in addition
toand even rather thanin other ways. Indeed, even as it acknowl-
edged that the very low cap on third-party expenses it recommended
would prevent third parties from making their views known to Canadi-
ans, the Lortie Report suggested that those who wished to conduct
broader campaigns … do so by supporting existing parties and candidates
… or by forming a political party and fielding candidates.85
78 John English, Just Watch Me: The Life of Pierre Elliott Trudeau, 19682000 (Toronto:
Alfred A Knopf Canada, 2009) at 151.
79 Ibid.
80 Ibid.
81 Canada, Royal Commission on Electoral Reform and Party Financing, Reforming Elec-
toral Democracy (Ottawa: Minister of Supply and Services Canada, 1991) vol 1 [Lortie
Report].
82 Note, however, that the amount a third party is authorized to spend pursuant to s 350
of the CEA ($150,000) is much higher than that recommended by the Lortie Report, su-
pra note 81 at 352 ($1,000), presumably reflecting Parliaments consideration of the
Supreme Courts opinion in Libman.
83 Lortie Report, supra note 81 at 292.
84 Ibid.
85 Ibid at 353.
THIRD PARTIES AND DEMOCRACY 2.0 267
Likewise, the Supreme Court suggested in Harper that political par-
ties are the primary vehicle for political participation in the Canadian po-
litical system. Although it recognized that [s]till, some will participate
outside the party affiliations,86 the Courts tone suggests that it viewed
such participation as anomalous. Already in Libman, the Supreme Court
had accepted the principle that third party expenses can and indeed
should be limited at much lower amounts than those of political parties.87
As it observed in Harper, the limitation of third-party expenses served to
protect candidates and political parties.88
This has led Feasby to point out that [t]hough it may seem paradoxi-
cal, under the rubric of fairness, Libman set out a de facto hierarchy of in-
terests in the electoral system. Voters interests are foremost; candidate
and party interests are secondary; non-participant interests are ter-
tiary.89 In his opinion, this hierarchy is in keeping with the structure of
Canadian electoral democracy.90 But it would be more accurate to say
that it is in keeping with a specific conception of elections, and one that
increasingly reflects a sense of the electoral process as it ought, perhaps,
to be rather than as it actually is.
A metaphor used by the Supreme Court in Harper helps illustrate
what this conception of democracy is like. This metaphor is that of a level
playing field for those who wish to engage in the electoral discourse.91
Although the Supreme Court probably invoked it mainly for its feel-good
appeal to our sense of fair play,92 I would like to extend it a little, and ex-
86 Harper, supra note 17 at para 113.
87 Libman, supra note 16 at 603.
88 Harper, supra note 17 at para 81 (the Court asserted, however, that neither candidates
nor political parties can be said to be vulnerable ibid).
89 Feasby, Egalitarian Model, supra note 18 at 34.
90 Ibid at 35. It is also noteworthy that there is an additional hierarchy between political
parties, with larger and well-established ones enjoying advantages over small and new
ones: see Colin Feasby, Continuing Questions in Canadian Political Finance Law:
Third Parties and Small Political Parties (2010) 47:4 Alta L Rev 993 at 994, 10011004
[Feasby, Continuing Questions] (observing that [t]he right of third parties to partici-
pate in public discourse is now strictly limited during the period immediately before
elections. Small political parties have fared better in the courts than third parties and
have secured some constitutional protection, though not strict equality with major polit-
ical parties at 994).
91 Harper, supra note 17 at para 62.
92 The appeal is lost on some, however. See Arizona Free Enterprise Club v Bennett, 131 S
Ct 2806, 180 L Ed 2d 664 (2011), Roberts CJ (claiming that [l]eveling the playing field
can sound like a good thing. But in a democracy, campaigning for office is not a game
at 2826 [cited to S Ct]).
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plore the implications of describing electoral debate as a football game.93
This metaphor reveals more than the Court probably intended about the
roles of those involved in the political process under the egalitarian model.
If the electoral process, as envisioned by the Supreme Court, is a foot-
ball game played on an even playing field, political parties are the teams
playing on that field. According to the adherents of the egalitarian concep-
tion of democracy, political parties are the primary competitors for the
prize of political power. They are like professional sports teams, with
coaching and scouting staff of consultants and opposition researchers,
their farm clubs of youth organizations, their practice rosters of back-
benchers and, of course, their fans among the voters. These fans, along
with less interested spectators, are seated in the stands around the play-
ing field. A few of them might unfurl some home-made banners to make
their opinion of the proceedings or the competitors known, but for the
most part they will, at most, cheer their favourites and boo the opponents.
There are even cheerleaders on the sidelines, although they generally
wear suits, as befits members of editorial boards. Neither players nor
mere spectators, they try to stir up the enthusiasm of the latter for the
former.94
This allegory highlights some salient features of the egalitarian model
of elections implemented by Parliament in the CEA and endorsed by the
Supreme Court, such as the special status of the media (which, although
neither candidates nor political parties, are exempted from restrictions on
third-party participation in pre-electoral debate95) and, most importantly,
the central role of political parties in electoral discourse and the relative
passivity of the voters. The metaphor only breaks down on Election Day,
when the voters are at last allowed to leave the stands, and to choose the
winner of the game they have (or have not) been watching.
For a deeper description of the conception of democracy and political
debate to which Rawls, Parliament, and the Supreme Court all subscribe,
93 Or a chivalry tournamentor, perhaps less romantically, a duelfor those who read
the French version of the judgment, which speaks of debate armes gales. The im-
agery is somewhat different, but still amenable to the interpretation I am about to sug-
gest.
94 There is one further element to this analogy, although it is not directly relevant to my
purposes here. It is that, as in a professional sports league, the teams are in full control
of the rules of the game, and can set them to suit their own purposes, regardless of the
interests and wishes of the non-participants (see Michael Pal, Breakdowns in the
Democratic Process and the Law of Canadian Democracy (2011) 57:2 McGill LJ 299).
95 CEA, supra note 7, s 319(a) (excluding the transmission to the public of an editorial, a
debate, a speech, an interview, a column, a letter, a commentary or news from the def-
inition of election advertising).
THIRD PARTIES AND DEMOCRACY 2.0 269
I turn to the illuminating work of Bernard Manin on representative gov-
ernment.96 Manin describes this conception of democracy as party democ-
racy. His analysis of it is worth our attention, because it helps clarify the
assumptions that may have seemed natural or self-evident to Rawls, Tru-
deau, the members of the Lortie Commission, and the Supreme Courts
judges, but which, as Manin shows, are neither natural nor self-evident.
Party democracy arose with the extension of the franchise in the nine-
teenth century. As Manin points out, [m]odern representative govern-
ment was established without organized political parties. … From the sec-
ond half of the nineteenth century, however, political parties organizing
the expression of the electorate came to be viewed as a constitutive ele-
ment of representative government.97 Personal communication between
the (aspiring) representative and the voter having become impossible as a
result of the extension of the franchise, [p]olitical parties, with their bu-
reaucracies and networks of party workers, were established in order to
mobilize the enlarged electorate.98 The earlier age of the more or less in-
dependent representative, and its fear of faction, so prominent, for ex-
ample, at the founding of the United States,99 were apparently forgotten.
With the franchise extended to the middle and the working classes,
[i]n party democracy electoral cleavages reflect class divisions.100 A so-
cial class is also a political camp, and representation becomes primarily a
reflection of the social structure.101 Hence Rawlss worry about the
wealthy acting as a group to have their groups favoured policies imple-
mented. Hence also the tendency for a voter to support, in every election,
the same party which he or she supported in the past, and for which his or
her parents voted too.102 Indeed, in some polities at least, it had been ex-
pected that political parties would not only represent the interests of mid-
dle and working classes, but also bring members of these classes into of-
fice. One can hear an echo of these hopes in Rawlss admonition that tal-
ent and motivation, but not social class, should determine a persons
chances of attaining political office.103 Yet this expectation, Manin writes,
96 Bernard Manin, The Principles of Representative Government (Cambridge, UK: Cam-
bridge University Press, 1997).
97 Ibid at 194.
98 Ibid at 206.
99 See e.g. James Madison, No. X., in Alexander Hamilton, James Madison & John Jay,
The Federalist on the New Constitution (District of Columbia: Hallowell, 1831) 45.
100 Manin, supra note 96 at 209 [emphasis in original].
101 Ibid at 210.
102 See ibid at 208209.
103 Rawls, Theory, supra note 61 at 225.
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was not fulfilled. Instead of ordinary people, it was party activists who
came to power with party democracy.104
That is because parties and their activists and structures dominated
the political process. Instead of an individual representative, voters were
now expected to support someone who bears the colors of a party;105 the
party which represented their social class and thus the political camp to
which they belonged. Most importantly for my purposes here,
parties organize both the electoral competition and the expression of
public opinion (demonstrations, petitions, press campaigns). All ex-
pressions of public opinion are structured along partisan cleavages.
… Since the parties dominate both the electoral scene and the articu-
lation of political opinions outside the vote, cleavages of public opin-
ion coincide with electoral cleavages.106
This dominance of parties, not only in the contest for political power but
also in political debate, had two important consequences.
One was to create the impression that electoral choice was driven by
party platforms combining ideology and policy proposals. In reality,
Manin observes, although political parties certainly proposed detailed
platforms and campaigned on them … the greater part of the electorate
had no detailed idea of the measures proposed. Even when voters knew of
the existence of such platforms, what they retained was primarily vague
and attention-grabbing slogans emphasized in the electoral campaign.107
The electoral choice was, for most voters, a matter of class identity and
trust, rather than the result of a consideration of the parties policies.108
Nonetheless, the impression was a powerful one, and there is little doubt
that it influenced the defenders of the egalitarian model of democracy,
such as Rawls and Trudeau, who saw political parties as vehicles for con-
ceptions of the public good and policies designed to promote social ends or
supermarket[s] of ideas.109 (Needless to say these thinkers and leaders
were among the minority of people who did in fact have detailed
knowledge of, and cared for, party platforms.)
The second consequence of the parties centrality in this conception of
democracy is that it makes it natural to see those participants in the elec-
toral debate who are not associated with parties as either mistaken or in-
104 See Manin, supra note 96 at 206208.
105 Ibid at 206.
106 Ibid at 215.
107 Ibid at 210.
108 See ibid at 21011.
109 See supra notes 7880 and accompanying text.
THIRD PARTIES AND DEMOCRACY 2.0 271
sincere in their claims of independence or, at best, anomalous. On this
view of the electoral process, the real debate takes place between political
parties and concerns their platforms. Self-proclaimed outsiders really are,
wittingly or not, the parties auxiliaries. Thus, the Supreme Court held up
the possibility that third parties participation in electoral campaigning
would really amount to reinforcing one side of the debate taking place be-
tween the parties over the other (in contravention of the rules ensuring
their equality) as a reason for imposing severe constraints on such partic-
ipation.
The egalitarian model of the regulation of the democratic process is a
reflection of party democracy. It is based on a vision of political parties
as the appropriately dominant actors of the electoral process, representing
certain class interests in society and bearing ideas and policies intended
to secure the commonweal. While these roles might seem contradictory,
the egalitarian model serves to resolve the contradiction by minimizing
the danger, inherent in the parties role as class representatives, of a dom-
ination of one class over the other(s), and maximizing the benefits of the
parties role as competing supermarkets in the marketplace of ideas. It
achieves the former by imposing restrictions on the parties means to
compete with each other, thus presumptively giving each (major) party
and the social class it represents a fair shot at victoryif not in one elec-
tion then at some future point. It achieves the latter by securing the par-
ties central place in electoral debate, guaranteeing that their voices will
be heard, and that they will be heard much louder and clearer than any
competing ones.
The egalitarian model is a reasonable one given the assumptions it
makes about the nature of electoral competition (and subject to the struc-
turalist critique). But, unfortunately for its proponents, these assump-
tions are no longer warranted. Party democracy is decaying, and another
model of representation is taking its place. In the next Part, I will de-
scribe that other model, in which the parties no longer represent social
classes or present voters with detailed policy proposals, relying again on
Manins work, and outline its implications for the egalitarian model of
electoral regulation.
IV. Audience Democracy and the Egalitarian Model
A. From Party Democracy to Audience Democracy
Even as John Rawls was providing the theoretical foundation for the
egalitarian model of electoral regulation and Parliament was enshrining
this model in Canadian law, the system of representation for which it was
designed was beginning to fray. Moreover, the same man, Pierre Trudeau,
was deeply involved in both processes in Canada. As Manin explains, be-
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ginning in the late 1960s and 1970s, party democracy has given way to
audience democracy, in which the role of political parties, the relation-
ship between the parties and the voters, and the nature of public debate
are different from those considered normal before.
The shift away from party democracy was noticed when, beginning in
the 1970s, it became apparent that the usual patterns of electoral results
had broken down. In particular, the stability of these results over time
and the correlation between electoral preferences and the socio-economic
and cultural backgrounds of the voters no longer held.110 What had hap-
pened, Manin explains, was that [v]oters tend increasingly to vote for a
person and no longer for a party or a platform. This phenomenon marks a
departure from what was considered normal voting behavior under repre-
sentative democracy,111 and presented as the ideal of democracy, for ex-
ample by Rawls. From representatives of social classes and supermarkets
of ideas, political parties were transformed into instruments in the ser-
vice of a leader for whom they provide fundraising and organizing ma-
chinery.112
This is not to say that political parties have lost their significance,
much less that they are on their way to disappearing. For one thing, par-
ties still play a crucial role in the formation of governments, especially in
parliamentary systems, where the support of a stable plurality (or, ideal-
ly, a majority) of the members of a legislature is necessary for govern-
ments to remain in office. For another, even in electoral politics, parties in
audience democracy do not entirely abandon their ideological orientations,
and the party label might thus serve as a somewhat useful heuristic for
voters (especially the uninformed or disengaged).113 Last but not least, po-
litical parties select the leaders who represent and lead them in the elec-
toral competition. Even this role, however, may be undergoing a shift,
with parties across the political spectrum and across the globe opening
their leadership elections to non-members, so that the party becomes less
the constituency than the organizer and rule maker for the leadership
110 Manin, supra note 96 at 218.
111 Ibid at 219. In Canadian history there is arguably one important exception to this
trend: the 1988 federal election, which sharply opposed a pro- and an anti-free-trade
platform. I am grateful to Simon Bessette for pointing this out to me. The electoral poli-
tics of some provinces, in particular Quebec with its long-standing polarization around
the question of its constitutional future, may also have escaped the trend, at least for
the time being.
112 Ibid.
113 But see Jennifer L Merolla, Laura B Stephenson & Elizabeth J Zechmeister, Can Ca-
nadians Take a Hint? The (In)Effectiveness of Party Labels as Information Shortcuts in
Canada (2008) 41:4 Can J Poli Sci 673 (arguing that in Canada, unlike in other coun-
tries, Canadian political parties are not especially useful information shortcuts).
THIRD PARTIES AND DEMOCRACY 2.0 273
contest.114 A general description of the nature and role of political parties
in audience democracy and the extent to which they differ from those un-
der party democracy would thus be very complex, and far beyond the
scope of this essay. What I focus on here is the change in the role of par-
ties in electoral politics (rather than in government or with respect to
leadership contests) and, especially, in pre-electoral debate. This particu-
lar role has undergone a real transformation.
The Lortie Commission believed that what was being described as the
lack of interest among political parties in discussing and analysing politi-
cal issues that are not connected directly to winning the next election, or
in attempting to articulate the[ir] broader values115 was due (at least in
considerable part) to a lack of resources. The Commission recommended
that parties be incentivized to create affiliated foundations that would
receive public funding to engage in the development of policies and politi-
cal education.116 These recommendations were not followed, but there is
good reason to believe that they would have proven quixotic even if they
had been implemented. Indeed, Manin observed the same process at work
across all Western democracies, including the European countries from
which the Lortie Commission borrowed the idea of parties foundations.
Manin found two causes for the shift from party and platform to lead-
er as the centre of electoral politics. One was the impact of the electronic
media, which allow candidates, and especially party leaders, to communi-
114 See e.g. Jean-Marc Salvet, Le PQ examine officiellement l’ide de primaires ouvertes,
Le Soleil (3 June 2014), online:
(report-
ing that the Parti Qubcois was officially considering the idea of primaries open to
sympathizers); PQ : pas de primaires ouvertes et un chef en mai, Radio-Canada (4
October 2014), online:
ed against holding an open primary, possibly due to lack of financial and organizational
resources); Geoffroy Clavel, La primaire UMP sera ouverte mais jusqu’ quel point? Le
parti se penche sur les parrainages, Huffington Post (20 January 2015), online:
(reporting on the discussions regarding the organization of an open primary to select the
UMPs candidate for the 2017 French presidential election); Sauce Hollandaise, The
Economist (22 October 2011), online:
on the 2011 primary election held by the French Socialist Party, open to voters who
pledged allegiance to the values of the left); Chilly Welcome, The Economist (28
February 2008), online:
of open primaries in South Koreas Grand National Party); Left Upset, The Econo-
mist (11 January 2014), online:
the Italian Partito Democratico in 2013] that was open to all).
115 Lortie Report, supra note 81 at 292.
116 See ibid at 293301.
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cate directly with voters. Moreover, television confers particular salience
and vividness to the individuality of the candidates.117 In Canada, as
John English explains, Pierre Trudeaus rise to power epitomized this
new model of politics, and especially the transformation of politics caused
by television.118 Yet [a]lthough Trudeaus appearance and skills fitted
TV especially well, the new importance of the medium meant that all po-
litical campaigns changed dramatically.119 The change was lasting, ra-
ther than tied to the exceptional personality of a single leader.
The second cause of the change of the political paradigm was found in
the new conditions under which elected officials exercise their power.120
As government has taken on increased responsibilities, the task of govern-
ing has become ever more complex and unpredictable. And, since it is
clear that, once in office, the government will need to make many difficult
and unforeseen decisions, candidates are not inclined to tie their hands
by committing themselves to a detailed platform, preferring to put forth
their personal qualities and aptitude for making good decisions rather
than to tie their hands by specific promises.121 Arguably, it is similarly
reasonable for voters to judge candidates on their perceived decision-
making abilities rather than their specific policies.
The developments since Manin wrote have only reinforced these twin
trends. The rise of the Internet and especially the emergence of social me-
dia have increased political leaders ability to communicate directly with
voters and thus to focus attention on their character and personality, ra-
ther than on the political party they represent. The effect of these devel-
opments is only beginning to be felt in Canada,122 but a look at the last
presidential election campaign in the United States is instructive:
Republican Tim Pawlenty disclosed his 2012 presidential aspirations
on Facebook. Rival Mitt Romney did it with a tweet. President
Barack Obama kicked off his re-election bid with a digital video
emailed to the 13 million online backers who helped power his his-
toric campaign in 2008. … The candidates and contenders have em-
braced the Internet to far greater degrees than previous White
House campaigns, communicating directly with voters on platforms
117 Manin, supra note 96 at 220.
118 English, supra note 78 at 34.
119 Ibid at 35.
120 Manin, supra note 96 at 220.
121 Ibid at 221.
122 See e.g. Nathalie Collard, Une campagne 2.0? Vraiment?, La Presse (26 August 2012),
online:
of Barack Obama in the United States in 2008).
THIRD PARTIES AND DEMOCRACY 2.0 275
where they work and play. … [The 2012] race [would] be the first to
reflect the broad cultural migration to the digital world.123
Internet technologies such as email and blogsand especially online
platforms such as YouTube, Facebook, and Twitterallow politicians to
make announcements to voters, to take their questions and even engage
them in discussion if they so choose, to react to their opponents actions or
speeches, and so on.124 In these ways, political leaders can attract and
keep voters attention like never before.
As for the complexity and unpredictability of the governments tasks,
it seems that they too have only increased in the past fifteen years. Ad-
mittedly, such things are difficult, perhaps impossible, to measure, and
even a cursory overview of the relevant political developments would be a
formidable task well beyond the scope of this article. Nonetheless, it
stands to reason that globalization and international terrorism, to name
but two of the forces shaping the policy of most developed nations, have
contributed to rendering policy development even more uncertain than in
the still-recent past. Thus, the impulse to remove detailed policy plat-
forms from the centre of electoral debate is as strong as ever.
And yet, Manin cautions, electoral choice is not only about the leaders
personalities. The parties platforms matter less, but their records matter
more than they used to.125 Furthermore, as the influence of social and
economic background on electoral preferences has declined, voting deci-
sions are made on the basis of perceptions of what is at stake in a particu-
lar election … [and] seem to be sensitive to issues raised in electoral cam-
paigns.126 However, unlike in party democracy, these issues do not re-
late to any lasting and salient cleavage in society, because [n]o socio-
economic or cultural cleavage is evidently more important and stable than
others.127 The issues are chosen by the politicians, who succeed or fail de-
pending on whether the issues they choose to raise and the cleavages they
choose to highlight resonate with the voters. [T]he electorate appears,
above all, as an audience which responds to the terms that have been pre-
123 Beth Fouhy, Elections 2012: The Social Network, Presidential Campaign Edition, Huff-
ington Post (17 April 2011) online:
Journalism, How the Presidential Candidates Use the Web and Social Media (15 August
2012), online:
124 Ibid.
125 See Manin, supra note 96 at 221.
126 Ibid at 222.
127 Ibid at 223.
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276
sented on the political stage,128 while politicians are the agenda setters of
public debate.
A further important feature of audience democracy is the im-
portance, in the public debate, of actors not affiliated with political par-
ties, such as interest groups, think tanks, and non-governmental organi-
zations. In the early 1970s, the emerging tendency for citizens, especially
young people, to involve themselves in public affairs through such organi-
zations rather than political parties could still be regarded with some sur-
prise and perhaps even distress.129 And, as noted earlier, the majority in
Harper seemed to regard individual political participation through the
medium of parties as the norm and activism in civil society groups as an
anomaly that only some would choose.130
But, as English observes, this form of participation in political life
(broadly understood) is now ubiquitous.131 Already in 1991, the Lortie
Commission observed
a generational change in attitudes about politics and the most effec-
tive means of political participation. … [Y]ounger generations in
Canada and abroad were less enamoured with established political
parties of all persuasions. They preferred to pursue their particular
political interests … through single-issue organizations with the sole
purpose of promoting a specific cause.132
It is, surely, not a mere coincidence that even as political parties were
abandoning detailed platforms and leadership on policy matters, civil so-
ciety groups were filling the void.
B. Canada as an Audience Democracy
A look at the most recent federal election campaign in 2011, confirms
that Canada has become an audience democracy. Electoral campaigns are
dominated by television and revolve around party leaders. The parties
policy commitments, to the extent that they are discussed at all, are an af-
terthought. Voters choices are driven by perceptions of the party leaders
128 Ibid [emphasis in original].
129 See English, supra note 78 (noting that, in 1970, the Liberal Partys president, Senator
Richard Stanbury shrewdly observed that there was a tendency among the young and
others to refuse to believe that the Party was effective and a feeling that they could be
more effective outside parties. It was a perceptive comment: this trend marked the re-
mainder of the century, and for young and old alike, nongovernmental organizations
and civil society became their preferred focus of commitment at 15152).
130 Harper, supra note 17 at para 113.
131 English, supra note 78 at 152.
132 Lortie Report, supra note 81 at 222.
THIRD PARTIES AND DEMOCRACY 2.0 277
leadership qualities and by the cleavages created by the leaders and the
parties, much more than by the leaders and parties actual commitments,
especially substantive policy commitments. As a result, the parties and
their leaders dominant position in pre-electoral debate results in substan-
tive issues not being addressed.
The centrality of party leaders to electoral competition and the status
of television as the dominant means133 through which voters learn about
an election campaign are inextricably linked and mutually reinforcing.
Television coverage naturally centres on party leaders, who become the
spokespersons who articulate their parties message to the voters. As
Mary Francoli, Josh Greenberg, and Christopher Waddell note in a study
of the role of the electronic media in the 2011 election, television coverage,
mostly of each of the campaign tours of the main parties leaders, hasn’t
changed very much since the 1970s134that is to say, since, as Manin and
English suggest, television first became the dominant medium of political
mass communication. Indeed, [t]he parties and the television networks
are linked in a mutually dependent relationship.135 The parties provide
the images (as well as the access), which the networks need to produce
their stories. In return, the networks disseminate the parties messaging
as newsregardless of whether the images match the story being told
that night by the reporter136providing parties with the exposure they
need to keep the voters attention.
Unsurprisingly, Francoli and her co-authors find that [c]ampaign
events and coverage of those events are formulaic and leave little or no
room for an examination of the important issues and the parties positions
on these issues.137 Similarly, the leaders tours are designed to demon-
strate enthusiasm for the party leaders, not to address the voters con-
cerns. The issues that attract day-to-day coverage over the course of an
election campaign are of limited importance if not altogether trivial,138
with the arguable exception of the opinion pollswhich, although certain-
ly important, are not substantive policy issues either. In short, on televi-
sion, there was almost no talk of the challenges of financing health care
into the future, the debate about climate change, the coming infrastruc-
133 Mary Francoli, Josh Greenberg & Christopher Waddell, The Campaign in the Digital
Media in Jon H Pammett & Christopher Dornan, eds, The Canadian Federal Election
of 2011 (Toronto: Dundurn, 2011) 219 at 220.
134 Ibid.
135 Ibid at 221.
136 Ibid.
137 Ibid.
138 See ibid at 22223 for a list of the issues that attracted coverage during the 2011 cam-
paign.
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ture crisis, or the fact that Canada for the first time in its history has
troops fighting in two concurrent wars, among a host of other important
public policy issues.139 To the extent that issues of significance to the vot-
ers came up in the television coverage, it was in stories away from the
leaders tours.140 The 2011 election campaign was by no means excep-
tional in this respect. As the studys authors put it, their review of how
television covered the 2011 campaign could have been written in 2004,
2006, or 2008.141 The near-absence of issues from election campaigns is
the trend, the normal state of Canadian democracy.
As Manins description of audience democracy suggests, rather than
substantive policies, what matters is the ability of party leaders to project
certain personality traits and to frame the election campaign as a choice
of which they represent the desirable side, and their opponents the repel-
lent one. These twin skills explain the successes both of the Conservatives
(in finally forming a majority government) and the NDP (in achieving its
best-ever electoral results) at the 2011 election. These parties platforms
were, by contrast, largely irrelevant to their success.
The stage for the Conservatives victory in 2011 was set at the start of
the election campaign thanks to what Francoli and her co-authors de-
scribe as Stephen Harpers succe[ss], on the campaigns opening day in
framing the election as being a choice between a power-hungry coalition
of opposition parties and a stable majority Conservative government.142
He thus created an electoral dynamic that pitted their party against all
of the others.143 As Ellis and Woolstencroft explain in their study of the
Conservative campaign, doing so allowed the party to exploit the most
negative elements of each [of its opponents], tarring the rest in the pro-
cess.144 To be sure, some of this tarring involved accusations of econom-
ic incompetencebut a general accusation of incompetence is not a criti-
cism of a policy. On the contrary, such rhetoric confirms Manins insight
that in an audience democracy, politicians prefer to present themselves as
generally capable of dealing with the tasks of government while making
few if any substantive commitments.
139 Ibid at 242.
140 Ibid.
141 Ibid at 231.
142 Ibid at 222. See also Faron Ellis & Peter Woolstencroft, The Conservative Campaign:
Becoming the New Natural Governing Party? in Jon H Pammett & Christopher Dor-
nan, eds, The Canadian Federal Election of 2011 (Toronto: Dundurn, 2011) 15 at 16.
143 Ibid.
144 Ibid at 29.
THIRD PARTIES AND DEMOCRACY 2.0 279
Indeed, Ellis and Woolstencroft observe that [a]s was the case [in]
2008, the 2011 Conservative platform was … long on extolling the Prime
Ministers virtues and the governments record of stable economic stew-
ardship [and] short on new initiatives that were not already contained in
the 2011 budget.145 In any case, they note that [t]he platform was re-
leased in its entirety at the end of the second week of the campaign, just
prior to the debates and too late to have any significant impact on the
overall campaign dynamics.146 Presumably, this is because the party un-
derstood thatas Manin arguesto the extent that they consider policy at
all, voters in audience democracies look more to the parties records than
to their promises, and because not making new promises left an eventual
Conservative government freer hands for the future.
Admittedly, the issue of government by a single-party majority or a
coalition (especially a coalition dependent on the support of a separatist
party) is not an insignificant one, whether or not it is so significant as to
deserve to be the ballot question of an election. It is not, however, a policy
question, but one about the nature and style of political leadership. Nor is
it an issue related to some lasting and substantive problem of cleavage in
society, but one that has to do with the circumstances of a single election,
chosen by a politician for its promise of electoral success.
The other key ingredient of Conservative success was the partys abil-
ity to project an image of competent and confident leadership. Its leaders
tour was set up so as to broadcast the appearance of enthusiasm and sup-
port for Stephen Harper.147 Conversely, the Conservatives sought to dis-
credit the other parties leaders more than their platforms (beyond gen-
eral accusations of favouring high taxes). Their attack ads targeted Mi-
chael Ignatieffs trustworthiness and personality, rather than his partys
policies.148
Similarly, the unprecedented success of the NDP was built on a suc-
cessful choice of a cleavage that allowed it to distinguish itself from its op-
ponents and to focus on the appeal of Jack Layton. As with the Conserva-
tives, these themes structured what passed for the partys platform, as
well as its advertisements and the organization of its campaign.
145 Ibid at 2930.
146 Ibid at 30.
147 See Francoli, Greenberg & Waddell, supra note 133 at 225.
148 See Ellis & Woolstencroft, supra note 142, at 3132. See also ibid, at 38 (describing the
attacks on Jack Layton during the final stages of the 2011 campaign, when it had be-
come clear that the NDP, rather than the Liberals, was the Conservatives main rival;
these attacks were also aimed at Mr. Layton and emphasized credentials rather than
specific policies).
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The cleavage the NDP used to frame the election was the contrast be-
tween itself and the other, old, parties associated with broken poli-
ticsthe Bloc Qubcois in Qubec, and the Conservatives and the Liber-
als elsewhere. This distinction allowed the NDP to occupy the attractive
side of the question while lumping the other parties together on the unat-
tractive one, much like the Conservatives choice of stable government
versus the coalition. As David McGrane notes in his study of the NDP
campaign, [t]he theme of the NDP platform was simply that Ottawa is
broken and Jack Laytonthe emphasis, again, is on the leaderhas a
practical plan to fix it.149 To the extent the platform contained substan-
tive commitments, they were vaguely worded and not translated into spe-
cific policies.150 Dysfunction in politics was also an important theme of the
NDPs advertisements. While it was much less important than leader-
shipalthough still more important than policyin English-language ads,
it was the dominant theme in French-language ads.151
Leadership (and the contrast between Jack Layton and the other
leaders) wasas it was for the Conservativesthe NDPs other campaign
theme. Variations on it (whether ads extolling Layton or those attacking
Harper or Ignatieff) constituted about two thirds of the NDPs English-
language advertising.152 Indeed, the ads barely mentioned the partys
name: although it appeared on screen, it was less prominent than Lay-
tons.153 The NDPs campaign opened and closed with leadership. Policy, to
the extent that it was discussed, was confined to the less prominent mid-
dle weeks of the campaign.154 Although McGrane notes that the NDP did
make a number of detailed [policy] commitments in its platform, they
did not feature prominently in its messaging.155
In short, success in Canadian politics today seems to come from skill
in defining a cleavage that allows a party to present itself as being op-
posed to its competitors in a way that voters will find attractive, and from
emphasis on leadership. Election campaigns are not, political parties have
concluded, opportunities for policy discussions. On the contrary, parties
149 David McGrane, Political Marketing and the NDPs Historic Breakthrough in Jon H
Pammett & Christopher Dornan, eds, The Canadian Federal Election of 2011 (Toronto:
Dundurn, 2011)77 at 82.
150 Ibid ([h]ire more doctors and nurses, strengthen your pension, kick-start job creation,
help out your family budget, and fix Ottawa for good at 82).
151 Ibid at 84 (for data on the content of English-language ads) and 87 (for French-
language ads).
152 Ibid at 84.
153 Ibid at 85.
154 Ibid at 91.
155 Ibid.
THIRD PARTIES AND DEMOCRACY 2.0 281
find it best either to avoid policy commitments or at most to relegate them
to the periphery of their electoral messaging. Although the 2011 election
illustrated this lesson starkly, it was only the latest example of a trend
that seems set to continue into the future.
C. The Egalitarian Model and Audience Democracy
This model of the political process differs in important respects from
that which underlies the egalitarian model of elections embodied in the
CEA and endorsed by Canadian courts. The law reflects increasingly out-
dated assumptions about what the political process is like and is becoming
a poor instrument for regulating that process.
First, as we have seen, underlying the egalitarian model of electoral
regulation is a concern, overt or tacit, that the political process will be
captured by the wealthy, acting as a social class, at the expense of the less
well off. Such a concern is understandable when political allegiances are
largely congruous with social classes and political competition opposes one
class to another. It makes less sense, however, when, as is the case in the
audience democracy, political cleavagessuch as opinions as to the desir-
ability of a strong government or a coalition, or an impression of broken
politicsdo not track class differences. The risk of domination of one class
by another recedes, as the political process is no longer a competition be-
tween them.
Indeed, there is good reason to believe that, in Canada at least, it is
not the affluent who are most affected by restrictions on third-party
spending during electoral campaigns. After reviewing the reports filed by
registered third parties with Elections Canada following the 2000, 2004,
2006, and 2008 elections, Colin Feasby noted
a dearth of corporations registered as third parties. … Instead, third
parties appear to be four types of individuals or organizations: (1) la-
bour unions and trade/professional associations; (2) student associa-
tions; (3) activist groups (for example, environmental); and (4)
groups promoting or opposing local candidates.156
156 Feasby, Continuing Questions, supra note 90 at 998 (trade/professional associations
do not seem to be associations of corporations or employers). See also Robert G Boat-
right, Interest Group Adaptations to Campaign Finance Reform in Canada and the
United States (2009) 42:1 Can J Poli Sci 17 at 27 (noting that [u]nions are more likely
to push money into the political system than are business groups or advocacy organiza-
tions, and labour clearly has the money and the incentive to engage in third-party ad-
vertising as well.) For an explanation of why this is not surprising, see Richard A Ep-
stein, Citizens United v FEC: The Constitutional Right That Big Corporations Should
Have But Do Not Want (2011) 34: 1 Harv JL & Pub Poly 639 (arguing that corpora-
tions are not, in practical terms, free openly to step into the political arena, even if they
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This trend seems to have continued at the 2011 election.157
Events in provincial politics confirm this trend. For instance, one im-
portant court case involving a third-party advertiser arose in Qubec, af-
ter a political party, Action Dmocratique du Qubec, attacked a trade un-
ion federation, the Fdration des travailleurs et travailleuses du Qubec
(FTQ), during the provincial election campaign of 2003. The FTQ sought
to respond to the criticism by publishing a pamphlet, which it distributed
to its members.158 As a result, it was fined for violating the provisions of
Qubecs Election Act restricting third-party electoral expenses. The FTQ
challenged the constitutionality of this legislation, but to no avail.159 Simi-
larly, in British Columbia, trade unions were the first to challenge re-
strictions on third-party spending during pre-campaign periods.160 Con-
versely, the absence of restrictions on third-party spending might favour
organized labour and allow it to play a very important role in electoral
campaigns, as Tom Flanagan has argued.161 Yet another case in point is
the situation of Qubecs student movement. Once the provincial election
campaign of 2012 began, the student unions were prevented from making
expenditures in support of its campaign against the government of Prem-
have the legal right to do so, because they are vulnerable to backlash by regulators and
consumers in retaliation for taking a controversial position, while unions are able pub-
licly to take a political stance, not being subject to the same kinds of risk).
157 See Elections Canada, Report, Third Party Election Advertising Reports for the 41st Gen-
eral Election online: Elections Canada
158 See Mtallurgistes unis d’Amrique (FTQ), section locale 7649 c Qubec (Directeur gnral
des lections), 2011 QCCA 1043 at para 9, [2011] RJQ 1206 [Mtallurgistes]. See also An-
drea Woo, Union appeals $3.2-million advertising fine from Elections BC The Globe and
Mail (21 August 2012), online:
other case involving a union).
159 See Mtallurgistes, supra note 158 (rejecting the constitutional challenge). But see CEA,
supra note 7, s 319(c) (which exempts materials distributed directly by a person or a
group to their members from its definition of restricted election advertising and
would presumably have applied if the same facts had occurred during a federal election
campaignunless the pamphlets were also distributed to non-members).
160 See BCTF, supra note 14 (plaintiffs included the British Columbia Teachers Federa-
tion, the Federation of Post-Secondary Educators of British Columbia, the British Co-
lumbia Division of the Canadian Union of Public Employees, and the British Columbia
Nurses Union).
161 Tom Flanagan, Organized Labour Is Now a Super PAC, The Globe and Mail (16 July
2012) A11, online:
THIRD PARTIES AND DEMOCRACY 2.0 283
ier Jean Charest in response to that governments policy of raising uni-
versity tuition fees.162
To be sure, one could argue that trade unions and student organiza-
tions represent privileged minorities working to entrench the benefits
they enjoy at societys expense, and thus are actually precisely the sort of
moneyed interests that restrictions on third-party spending were designed
to hold at bay.163 Whether or not one agrees with that assessment, it is
true that groups and organizations, even of people who are not especially
well off individually, are able, if they are large enough, to wield consider-
able resources. Nonetheless, it seems implausible to say that such associ-
ations are in danger of dominating the political process so as to stifle op-
position. They are vocal participants in the public debate, but by no
means the only ones.
The second way in which the egalitarian model of elections embodied
in Canadian legislation is a poor fit with the contemporary reality of the
political process concerns the shift in the focus of political competition
away from policy proposals contained in party platforms. This shift means
that parties, having become vehicles for promoting and supporting the
personality of their leaders, have relinquished their role as supermarkets
of ideas. Instead of being dominated by a few supermarkets, the market-
place of ideas is now open to, and indeed mostly the preserve of, a variety
of boutique suppliers, such as think tanks, NGOs, and social movements.
As Colin Feasby pointed out, [t]hird 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.164 Political parties may not
only prefer to avoid raising certain issues,165 but are indeed disinclined
to campaign on issues altogether, favouring campaigns based squarely on
the personalities of their leaders (and on those of their opponents lead-
ers). By preventing these suppliers from promoting their products during
the key period of election campaigns, restrictions on third-party spending
may deprive voters of important information to a much greater extent
than in the past.
162 See generally Lonid Sirota, lections: les tudiants billons?, La Presse (April 13,
2012), online:
spending if the provincial election was called); Financement lectoral : le DGE invite
les tudiants respecter la loi, Radio-Canada (May 24, 2012), online:
student movement that it must respect election spending laws).
163 This seems to be, for example, the position taken by Flanagan, supra note 161.
164 Colin Feasby, Issue Advocacy and Third Parties in the United Kingdom and Canada
(2003) 48:1 McGill LJ 11 at 21.
165 Ibid.
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Admittedly, there are no guarantees that alternative suppliers in the
marketplace of ideas would in fact enter the marketplace during election
campaigns, even if legally free to do so. Robert Boatright, for instance, has
come to the conclusion that Canadian advocacy groups are not interested
in intervening in election campaigns, finding not only that they tend not
to engage in the sorts of activities prohibited by the CEAs rules on third-
party advertising,166 but that [m]ost advocacy groups have, in fact, sought
to further remove themselves from partisan politics in the past two elec-
tion cycles.167 Yet these findings seem to be contradicted by the willing-
ness of trade unions to intervene at least in provincial politics. More im-
portantly, the dearth of suppliers in a market for what seems, after all, a
desirable product (namely, policy ideas proposed for the voters considera-
tion at election time) is, if anything, a reason to look for ways to encour-
age suppliers to enter the market rather than to prevent them from doing
so if or when they choose to.
In short, the intellectual foundations on which the current approach to
the regulation of third-party participation in electoral debate rests have
been shaken by the changes in the political process over the last four dec-
adesthat is to say, roughly since the enactment of the current election
laws or their direct predecessors. We need to think again about our regu-
lations to make sure that they fit the politics of today rather than those of
the 1970s. Even if we conclude that the regulations now in place are in
fact well suited to contemporary society, it is important that we develop
more relevant justifications for them than those that made sense to John
Rawls and Pierre Trudeau. In doing so, however, it is important to take
stock of another new development, more recent than the changes in the
political process described by Bernard Manin: the emergence, thanks to
the Internet, of new ways in which ideas can be shared. By making it vir-
tually free to communicate ideas to vast numbers of people, the Internet is
bound further to upset the rules surrounding third-party involvement in
elections.
V. The Separation of Spending and Speech
Until quite recently, a person who wanted to share a message, politi-
cal or otherwise, with any substantial number of people had to incur con-
siderable expense to do so. For example, in Harper, the majority took the
view that a lack of means, not legislative restrictions, is the reason the
vast majority of Canadian citizens168 cannot reach the spending amounts
166 Boatright, supra note 156 at 34.
167 Ibid.
168 Harper, supra note 17 at para 113.
THIRD PARTIES AND DEMOCRACY 2.0 285
which, as the dissent pointed out, were not even sufficient to effectively
communicate through the national media.169 Insofar as this statement is
taken to describe only the position of individuals acting alone, rather than
that of individuals pooling their resources together with those of others
(by means, for example, of a trade union), it is no doubt correctalthough
this qualification is an extremely important one.170
To be sure, there were always some exceptions to this rule. Perhaps
most importantly, the CEA exempts from its definition of election adver-
tising the transmission to the public of an editorial, a debate, a speech,
an interview, a column, a letter, a commentary or news.171 Accordingly,
those endowed with enough notoriety, rhetorical talent, good luck, or
some combination of the three, might count on having their views publi-
cized, free of charge and thus of the CEAs constraints, by the news media,
whether as part of news stories (reporting a politicians statement, for ex-
ample) or as op-eds.
Not everyone will have this opportunity, however. The problem might
be especially acute in local settings (such as small-town municipal elec-
tionswhich, of course, would be regulated by provincial rather than fed-
eral legislationor riding-level election campaigns), where there might
not be enough media interest to give everyone a chance to express his or
her views in this way.172 But more generally, it is much easier for already
well-known persons and groupsand above all politicians and political
partiesto have their views reported or published by the news media. For
outsiders especially, to engage in effective political speech means spend-
ing their own money.173
New technologies, notably social media, are changing this, by allowing
anyone to reach potentially unlimited numbers of readers, listeners, or
viewers without having to pay for the transmission of ones message. Plat-
forms such as Twitter, Facebook, and YouTube, as well as various pod-
casting and blogging serviceswhat is often called Web 2.0let users post
169 Ibid at para 4.
170 See supra notes 158162 and accompanying text.
171 CEA, supra note 7, s 319(a).
172 See e.g. Qubec (Directeur gnral des lections) c Pich, 2011 QCCA 477 (CanLII) (over-
turning the acquittal of a person whose letter to the editor of a regional weekly newspa-
per was rejected for publication in the letters section and who, desiring it to appear in
print in time for a municipal election campaign, paid to have it published as an adver-
tisement).
173 Boatright, supra note 156 at 34. Boatright suggests that some advocacy groups may try
to combine these two approaches, buying some advertisements in order to attract the
attention of the media rather than to persuade the (relatively few) people who will ac-
tually see them.
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and share content, giving others access to it, without charge. Such mes-
sages can potentially reach hundreds of thousands, even millions of peo-
ple. And Canadians are among the most avid users of social media.174 Of
course, as with the traditional media, prior notoriety and a talent for
communicating ones ideas will help. But there is no institutionalized
gatekeeper between the person or group seeking to transmit a message
and the intended audience, with a limited space to offer to third parties
and an incentive to offer it to established interests, whose views are more
likely than outsiders to be of interest to the public. A tweet, Facebook
post, or YouTube video posted by anyone can go viral, spreading by word
of mouth or click of mouse, between family members, colleagues, friends,
or followers. Even as these platforms allow for new forms of communica-
tion between political partiesand especially their leadersand citizens,
they open up political discourse to new voices that would formerly have
remained on its margins.
Indeed, there is a difference, perhaps even a conflict, in the ways par-
ties and other members of civil society see the potential of Web 2.0. As
Francoli and her co-authors note, established political parties prefer to
use social media not to generate deliberative discourse, but as tools to
command and control the conversations that affect and involve them.175
For others, however, the potential of Web 2.0 is to enable individuals to
be more than just passive recipients of content produced for a mass audi-
ence. [Social media platforms] also allow them to produce, share, and dis-
tribute their ideas with others.176 Whether, or to what extent, this poten-
tial will be realized remains to be seen. During the 2011 campaign, active
participants in the online conversation may have been few, and many of
them may have already been committed partisans.177 Yet it seems safe
to say that their number and diversity will grow. In Web 2.0 terms, the
2011 election belongs to an already distant past.
The CEA only provides for a limited recognition of the role the Inter-
net can play in pre-electoral discussion by exempting the transmission by
an individual, on a non-commercial basis on what is commonly known as
the Internet, of his or her personal political views.178 This exemption is
quite narrow. For instance, it only applies to individuals, not to groups
or corporations, even though the CEAs provisions on third-party advertis-
ing apply equally to individuals, corporations, and groups.
174 See e.g. Francoli, Greenberg & Waddell, supra note 133 at 23234 for some statistics.
175 Ibid at 237.
176 Ibid at 239.
177 Ibid at 241.
178 CEA, supra note 7, s 319(d).
THIRD PARTIES AND DEMOCRACY 2.0 287
Yet acknowledged or not, the possibility for third parties, individuals
and groups, to take part in pre-electoral public debate on the Internet, es-
pecially on social media, at little or no cost is an important change relative
to even the recent past. In a break with to the spending-to-speak179 real-
ity created by the business model of traditional media, in which the high
cost of publication meant that the authors of most messages not produced
by the media companies themselves had to pay to have their messages
published, the Internet and social media allow for at least a partial sepa-
ration of spending and speech. Lack of financial resources is no longer an
insuperable obstacle to citizens, NGOs, or social movements seeking to in-
ject their views in election campaigns. All they need is a free Facebook
page or Twitter accountand a message that will catch on.
The separation of spending and speech upends the CEAs scheme of
regulation of pre-electoral speech, which is grounded in the spending-to-
speak reality that existed at the time of its enactment. So long as the
premise that one must spend in order to speak held, a limit on electoral
spending was a limit on electoral speech. Limiting spending, and there-
fore speech, by third parties had two effects. On the one hand, it helped
limit the influence of money on elections, and thus was a part of the egal-
itarian model of elections favoured by Parliament and the Supreme
Court. On the other hand, it helped guarantee that political parties, which
were allowed to spend substantially more than third parties, had pride of
place in the electoral process; that they were the main, if not the only,
players on the level field created by the limitation of the role of money in
electoral campaigns. Both of these effects, I argued in previous parts of
this article, were desired by the framers and defenders of the CEA and
similar regulations. The separation of spending and speech means that
the CEA can only achieve the first of the CEAs proponents purposes, but
not the second. Controlling money and levelling the field is no longer suf-
ficient to exclude citizens and groups who wish to play on it, among but
not along with the political parties and their candidates, because these
citizens and groups can make their voices heard online.
VI. The Future of Third-Party Participation
The current framework of regulation of third-party participation in
electoral debate in Canada is intellectually outdated. It rests on assump-
tions about the political process and about the business and technology of
communications that no longer hold true. The egalitarian model which,
although by no means incontestable, was at least a rational response to
the conditions of politics of forty years ago, and of communications as re-
179 Geddis, supra note 15 at 438.
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cently perhaps as five, certainly ten years ago, is no longer adequate in
2015. How, then, should third-party participation be regulated in the fu-
ture?
In order to answer this question, it is necessary to ask ourselves
which, if any, of the current frameworks objectives are still worth pursu-
ing, keeping in mind that their pursuit entails, as the Supreme Court rec-
ognized in both Libman and Harper, limitations on citizens freedom of
expression. The CEAs framework seeks to accomplish two things: first, it
tries to guarantee that political parties will enjoy a dominant position in
pre-electoral debate; second, it limits the role of money in that debate. In
my view, it is no longer worthwhile to pursue the first of these purposes.
The case of the second is more complicated.
In the audience democracy described in Part IV, privileging political
parties voices at the expense of those of citizens, organizations, groups,
and social movements can no longer be justified, if it ever was. In compar-
ison with the party democracy model of political process, in which these
privileges originated, their deleterious effects are much worse, and salu-
tary ones much smaller.
The cost of curtailing the pre-electoral expression of third parties is
now higher than before because the political parties are retreating from
the field of detailed policy proposals, and third parties are filling the void.
Curtailing third parties expression thus deprives voters of moreand
more valuableinformation than it might have in the past. In addition,
because more people now choose to involve themselves in public affairs
through third parties such as NGOs and social movements, and fewer
through political parties, more citizens find their (collective) voices si-
lenced in the crucial pre-electoral period.
Crucially, the development of new communications technologies and
the resulting separation of spending and speech would make it necessary
to suppress more speech than in the past in order to ensure the centrality
of political parties in pre-election debates. Not only paid advertisements,
but also the practically costless speech of social media users and bloggers
would need to be regulated and curtailed in order to achieve this objective.
At the same time, due again to the changes in the political parties role
that result from the shift from party to audience democracy, it is much
less clear now what advantages this curtailment might have. Instead of
allowing the voters to focus on the parties platforms, it leaves them focus-
ing on campaigns about the personalities of party leaders. Instead of pon-
dering the advantages and disadvantages of policy proposals, it lets them
divide on short-term issues that are manufactured by political parties for
the purposes of a single general election and then discarded. There ac-
cordingly seems to be no reason for electoral law to attempt to maintain
the political parties privileged position in public debate.
THIRD PARTIES AND DEMOCRACY 2.0 289
On the other hand, these recent social and technological changes need
not be seen as entirely undermining the case for limiting the impact of
money on pre-electoral debate. To be sure, to the extent that political par-
ties no longer reflect stable class divisions, there is less danger of an im-
balance of resources leading to the permanent domination of the political
process by the well off, which so worried Rawls. Furthermore, the argu-
ment that the limitation of third parties expenses is necessary to preserve
the fairness of the electoral competition between political parties is weak-
ened by the separation of spending and speech. As a result, it is increas-
ingly possible for third parties to actively campaign for or against one side
of that competition, possibly throwing into imbalance, without incurring
any expenses.
There remains, however, at least one powerful argument in favour of
curbing the role of money in politicsthat based on the importance of
avoiding improper links between moneyed interests and political parties.
Indeed, this issue is arguably all the more pressing if it is indeed the case
that moneyed interests, individual and collective, are to be found on all
sides of the political competition. If this is true, all parties are vulnerable
to improper influence and even capture by their individually or collective-
ly wealthy supporters. Furthermore, so long as campaign spending by
parties remains so constrained, limitsand fairly low limits at thaton
the spending of third parties may be reasonably regarded as necessary to
prevent third parties from acting as the political parties proxies, spread-
ing their message without being subject to the parties spending limits.
Campaigning online, however, does not raise the same concerns. It is
open to the well off as well as to others, of course, but insofar as online
communication is (practically) free, financial resources will not assist
those who possess them in spreading their message. Nor is circumvention
of limitations on the political parties ability to campaign an issue in this
context, since there are no such limitations online.
Of course, it can be argued that the importance of the freedom of ex-
pression outweighs both fairness and concerns over the propriety of rela-
tionships between politicians and those who expend money on political
campaigns.180 However, this objection does not gain strength in the audi-
ence democracy relative to the party democracy, so I will put it to one
side. If we think that limiting moneys role in politics generally, and of
third-party spending specifically, was a valid objective of electoral regula-
tion under party democracy, we have reason to believe that it remains a
180 This, in effect, is the view of a majority of the Supreme Court of the United States (see
Citizens United v Federal Election Commission, 558 US 310, 130 S Ct 876 (2010)).
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valid objective under audience democracy, though the case for it might
not be quite as strong.
Thus, the regulation of third-party participation in electoral debate
ought not to favour political parties at the expense of other participants in
that debate, but can still aim at limiting the role of money in the political
process. What then should it look like?
The answer, perhaps paradoxically, given the extent of the changes
that have taken place since the egalitarian model of elections was con-
ceived and even since the CEA was enacted, is that it may well look much
like the CEAs current framework. Ten, even five, years ago the answer
would not have been the same, because the extent to which the CEA privi-
leged political parties was unjustifiable in the audience democracy.
However, the separation of spending and speech is now working to coun-
teract this ill-effect by allowing voices other than those of the political
parties to be heard in pre-electoral debate, despite the financial disad-
vantage at which they find themselves because of the CEAs rules on
third-party spending. The salutary effects of the separation of spending
and speech being likely only to increase in the future, political parties are
bound to lose their unwarranted privileges without the need for legisla-
tive intervention.
Indeed, the danger now consists precisely in intervention intended to
restore political parties to the privileged position they are losing as a re-
sult of the separation of spending and speech. Parties control of the law-
making machinery, and their interest in excluding competitors and critics
from pre-electoral debate, a time at which they are the most vulnerable to
criticism, mean that likelihood of distortion of election laws by self-
interested parties seeking to remain in office181 which, as Michael Pal re-
cently stressed, is a general feature of the Canadian law of democracy, is
a real danger here. One hopes that the practical difficulty, or at least the
cost, of policing Internet speech, especially on social media, will act as a
deterrent to any attempt at such manipulation of the pre-electoral debate.
However, should legislatures succumb to the temptation, courts ought, as
Pal urges, to set aside the deferential approach they have tended to adopt
in law of democracy cases, and step in so as to prevent the self-interest of
political parties masquerading as a genuine concern of a time in fact long-
gone from influencing the rules that define pre-electoral debate in the
twenty-first century.
That said, two limited changes to the CEA rules on third-party partic-
ipation are in order. First, the spending limits set out in section 350 of the
181 Pal, supra note 94 at 302.
THIRD PARTIES AND DEMOCRACY 2.0 291
CEA ought to be raised. As the dissenters in Harper pointed out, the na-
tional limit in subsection 350(1) is not even sufficient to pay for a one-
time full-page advertisement in major Canadian newspapers,182 and
puts effective radio and television communication within constituencies
or throughout the country beyond the reach of third party citizens.183
Even without calling into question the principle of a limitation of third-
party expenses to amounts considerably lower than those of political par-
ties, these limits ought to be reviewed so as to allow third parties to make
their position known throughout the country. As the Supreme Court rec-
ognized long ago, elections to Parliament are a national, not a local con-
cern.184 It must be possible for Canadians to debate the issues they raise
on a national and not only a local scale, regardless of the willingness of po-
litical parties to do so.
Second, paragraph 319(d) of the CEA, which allows unlimited trans-
mission by an individual, on a non-commercial basis on what is commonly
known as the Internet, of his or her personal political views185 ought to be
amended so as to apply to communications by groups and organizations.
Its singling out of communications by individuals is the only such distinc-
tion in the third-party speech regulation scheme the CEA puts in place,
and lacks an obvious justification. Subject to the financial limits which, as
I have argued, can only be justified (if they can be at all) due to their po-
tential to prevent the formation or appearance of improper links between
politicians and third parties and by the necessity to prevent circumven-
tion of spending limits applicable to political parties, individuals, groups,
and organizations ought to be equally free to take part in pre-electoral de-
bate. There is no reason why this principle would not be applicable online
as well as to the more traditional forms of communication.
Conclusion
Parliament has put in placeand the Supreme Court of Canada has
endorsedstringent limits on the amount of money that so-called third
partiespersons and groups other than political parties and candi-
datescan expend in order to take part in the pre-electoral debate. The
Supreme Court and other proponents of these restrictions subscribe to an
egalitarian model of elections, which seeks to ensure that electoral com-
petition will take place on a level playing field. This means above all that
182 Harper, supra note 17, at para 4.
183 Ibid at para 6.
184 See Re Alberta Statutes, supra note 3 at 13234, Duff CJ.
185 Supra note 7.
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electoral competition must not be influenced by money or be affected by
disparities between the financial resources of the competing sides.
But this vision of electoral competition was grounded not only in time-
less egalitarianism, if such a thing exists, but also in party democracya
certain conception of electoral politics that regarded political parties as its
central and appropriately dominant participants and third parties as
marginal and insignificant. In fact, the limitation of third parties partici-
pation in pre-electoral debate served not only to further egalitarian objec-
tives, but also to guarantee that political parties retained a privileged po-
sition in public debates during election campaigns. Yet in the decades
since the egalitarian model of elections was conceived, party democracy
has been replaced by a different form of politics, audience democracy, in
which leaders and their personalities have taken the place of parties and
their platforms as the focus of the electoral competition. The 2011 election
provided a vivid illustration of this trend. From supermarkets of ideas,
political parties have become vehicles used to deliver power to their lead-
ers. Meanwhile, the role of suppliers of ideas has increasingly been taken
on by third parties, such as think tanks, NGOs, and social movements.
In the last few years, another development has challenged the Cana-
dian framework for the regulation of third parties participation in pre-
electoral debate. The emergence of new technologies and business models
enabled by the Internet has allowed a growing separation of spending and
speech, meaning that it is no longer necessary to spend a significant
amount of money in order to take ones message to large audiences. Third
parties (as well as political parties and candidates) are now able to use the
Internet, and especially social media platforms, to communicate with vot-
ers at little or no cost.
The combined effect of these changes means that without changing
the current rules on third-party spending a great deal, it is possible to
achieve the objective of reducing the influence of money on the political
process without conferring on political parties privileges which, although
perhaps understandable under party democracy, are unwarranted in
audience democracy.
Some readers will perhaps find the limited scope of the changes to Ca-
nadian electoral law I recommend disappointing, or question the interest
of a paper that seems to conclude that the shift from party to audience
democracy and the separation of spending and speech largely cancel each
other out. Yet these phenomena are not insignificant. While their com-
bined effect in the case of third party participation in electoral debate may
be to make radical legislative reform unnecessary, it is important to un-
derstand how they interact to produce this effect. Without this under-
standing, the temptation to protect the dominance of political parties in
electoral debate from being undermined by the advent of Web 2.0 may
THIRD PARTIES AND DEMOCRACY 2.0 293
lead to attempts to stifle online debates, which would be ill-advised in the
era of audience democracy.
More broadly, these concurrent developments are among the factors
that influence the incentives of politicians and parties that, in turn, help
shape the law of Canadian democracy. An analysis of this law, whether
scholarly, legislative, or judicial, which does not take these changes into
account is likely to go astray and to yield conclusions disconnected from
and inadequate to the reality of democracy in the Web 2.0 era. In other
areas of the law of Canadian democracy, the impact of recent and ongoing
social and technological changes on the assumptions underlying the regu-
latory schemes chosen by Parliament (and provincial legislatures) de-
serves careful study. The case of Parker Donham, accused of showing
his marked ballot by photographing it and posting the picture on Twitter,
is only the latest example.186 This article could not explore this phenome-
non beyond the realm of third-party participation in pre-electoral debate.
It will have succeeded, however, if it starts the discussion.
186 See Jane Taber, Blogger threatens Charter challenge over ballot tweet controversy, The
Globe and Mail (17 January 2014), online
Elections Act, SNS 2011 c 5, para 301(b). The CEAs paragraph 164(2)(b) is an equivalent
provision.
