The Myth Of The Level Playing Field

Worth A Look, Regulation, Frontier Centre

Frankly, an “in-and-out” scheme sounds quaintly titillating. But a possible in-and-out scheme run by the Conservative party in the last federal election promises to dominate question period and national news coverage for the next week or two, perhaps longer.

Elections Canada is investigating (with more enthusiasm and vigour than the infraction would justify) whether the national Tory campaign bought more advertising than it was allowed in the 2006 campaign by disguising some of its national ads as local ones.

Local candidates and national campaigns have separate limits on how much they may spend on advertising between the day the writs are issued and voting day. For eight months or more now, Elections Canada has been investigating whether the national Tory campaign exceeded its limit last time by having local candidates with room left in their advertising limits buy radio and television time during which national campaign messages were run.

The practice is nothing new. When the Liberals were the ones flush with campaign cash, they did something similar.

The trick is to edit the ads just enough that they can be argued to be, technically, local. The problem is, determining whether the edits are sufficient is left to the highly subjective bureaucrats at Elections Canada.

Back when the Liberals were in power and taking advantage of this quasi-loophole — long before the Tories came to office — I argued this rule was anti-democratic, an unjustifiable limit on free speech. Most of our campaign financing and spending laws are.

Elections Canada officials, academics, spending-limit advocates and most of our politicians insist that for our elections to be “fair,” we must have severe restrictions on fundraising and campaign spending so that all candidates and parties enjoy a “level playing field.” In backing Canada’s highly restrictive campaign finance laws, even the Supreme Court bought into this touchy-feely line of reasoning.

This is emotionalism — niceness — masquerading as rational public policy.
It sounds good. It should work: Making every party and candidate live with the same fundraising and spending limits should take the big-money advantage out of elections.

But as Bradley Smith of Capital University law school, one of the leading experts in the world on election law and campaign finance, has determined, the advantage of money in elections is overstated and there is no empirical evidence in any western democracy of spending limits making election outcomes more equitable.

Big spending by one campaign can easily backfire on the party or candidate doing the spending. Big-bucks campaigns tend to make voters resentful. Voters dislike the implication that their intelligence (and votes) can be manipulated by slick ads. In less than 40 per cent of the campaigns Smith has studied — in which one candidate or party outspent his or its rivals by 20 per cent or more –has the free spender won.

My beef with our campaign finance laws is not so much that they are ineffective (although that is bad enough), but that they do violence to our freedom of speech and association. In a democracy, it is not for the government to tell candidates how much they can spend –period.

There are two reasons, then, that I dislike the law forbidding in-and-out advertising arrangements: It doesn’t produce fairer elections, but it does damage freedom and democracy.

Still, I am not going to ride to the Conservatives’ defence just because I object to our campaign finance laws or because I have contempt for the holier-than-thou attitude behind them.

And while I am persuaded by accusations from the Conservatives and their defenders that Elections Canada’s investigation of this case is motivated, at least in part, by elections bureaucrats’ contempt for Prime Minister Harper, I am not going to say the investigation utterly lacks merit.

Since long before he was PM, Harper has had a series of run-ins with the federal election regulators. As president of the National Citizens Coalition(NCC), he fought Elections Canada over its advocacy of laws effectively forbidding third-party advertising during elections by groups such as the NCC. He also fought them on their highly selective prosecutions under the law forbidding early posting of election returns on the Internet. And most recently, as prime minister, Harper has upbraided the election regulators for subverting the will of Parliament by permitting veiled women to cast ballots in federal by-elections.

I have little doubt that Elections Canada arranged this week’s high-profile, RCMP-aided “raid” on Conservative party headquarters, in part, just to embarrass Mr. Harper and his government. You wouldn’t have to work too hard, either, to convince me the Liberals showed up with a professional video crew, just minutes after police arrived at Tory HQ, because someone at the regulator tipped the opposition.

Still, even if Elections Canada is prosecuting a useless and silly law, and prosecuting it selectively with intent to embarrass the government, in-and-out schemes are illegal in Canada. And until the Tories summon the courage to reform our election laws and make them more democratic, they should be expected to abide by them.