In BC, democracy has a price tag. Sometimes.
They failed the first time, but that hasn't deterred the BC government from trying yet again to put a sock in the mouths of community organizations, chambers of commerce, unions and other groups by attempting to impose tough spending restrictions on third parties which – if they get their way – would apply before an election is even officially underway.
The BC Court of Appeal will soon hear arguments in the Constitutional reference by the BC government over third party spending limits during what the government likes to call a “pre-campaign” period. Last time round the Court said such limits violated the Charter of Rights.
This time, the BC government chose to cut the pre-campaign period from 60 days prior to an election campaign to 40 days hoping to comply with the Charter, even though they would have been far better off shelving this ill-conceived idea altogether.
When the government first legislated it in 2001, BC was the only province to have a fixed election date. Today, eight provinces have fixed elections. Yet, BC stands alone in the belief that a pre-campaign period is somehow necessary to protect an election's sanctity.
But the government's rewrite of the law also affords British Columbians an opportunity to take a peek at the various ways the government tries to stack the deck when it comes to citizen engagement during elections.
First: if it doesn't suit the government's agenda, who needs rules? Who cares how much third parties spend as long as the government's allies are likely to outspend their opponents?
Such was the case in last summer's HST referendum when there was no “pre-campaign” period, and the government did away with campaign spending limits or disclosure requirements regarding the identity of donors and the amount of their donations.
Everyone was free to spend with wild abandon. And some did.
British Columbians will likely never know how much the Smart Tax Alliance and its members spent in their valiant but ultimately in vain campaign to try and save their corporate windfall from the HST, because the government hastily rewrote the law in advance of the vote.
So it would seem – at least for the Clark government – that the real threat to BC's democracy isn't the good folk at the Smart Tax Alliance, it's those troublesome unions, churches, environmental groups and the like that seemingly put BC's very system of government at risk.
So what to do if you're a government intent on trying to muffle the masses?
First, set a strict spending limit. Under BC's Elections Act, third party election spending is limited to $3,000 per electoral district and $150,000 overall.
Secondly, dissipate that spending even further by creating a “pre-campaign” period to force third parties to stretch their meagre limit even further.
Third, make them register with Elections BC, file an advertising disclosure report if they spend over $500, and require them to disclose the amount of contributions they received starting six months before the election is called.
He who writes the rules (often) wins the game
And if that doesn't scare off those pesky do-gooders, then write rules that are so convoluted that most groups will likely wave a white flag before even trying to decipher what they mean.
As an example, the BC Elections Act defines “election advertising” as “the transmission to the public by any means...of an advertising message that promotes or opposes, directly or indirectly, a registered political party or the election of a candidate, including an advertising message that takes a position on an issue with which a registered political party or candidate is associated.”
Heady stuff that: “by any means,” “directly or indirectly,” “takes a position on,” “is associated.”
How does a group account for the cost of an existing web page that may overnight become “election advertising” during a pre-campaign or election period because it might “indirectly” promote or oppose a political party “associated” with an issue?
This isn't the stuff of make-believe. Part of an existing church's website may be deemed “election advertising” eight months from now and its costs tallied against that church's spending limit, even if words like “vote,” “elect” or “re-elect” are nowhere to be found on it, but “poverty” is.
And don't even begin to think that there's some rhyme or reason for that $3,000 limit either, because by setting a uniform limit across districts instead of per registered voter the BC government tossed the concept of a level playing field out the window.
According to Elections BC, in 2009 the largest riding in BC – Comox Valley – had 47,772 registered voters; the smallest riding – Stitkine – had 12,291 registered voters.
So based on that $3,000 limit, a third party can spend up to 24.4 cents per voter in Stitkine, while in Comox Valley they can only spend 6.3 cents per voter.
Different card games, different rules
But the BC government will claim it's the principle that counts. And they're right. Reasonable limits should be placed on the election spending of third parties so that the wealthy don't drown out other voices and other voices have a reasonable chance to communicate with voters.
But surely principles are principles. You don't cherry pick when and where they apply, as the government did in the HST referendum.
If unbridled third party spending is a threat to our democratic system during an election, then it's also a threat in a referendum or a race for city council.
A quick review of existing election legislation in BC reveals a hodge-podge of rules that are often contradictory and ill-defined.
For instance that “pre-campaign” period now before the Court of Appeal, it would only exist in some BC elections not all of them.
It doesn't exist in a by-election or when a minority government falls on a confidence vote. It may not exist if a governing party changes leaders and the new premier calls a snap election.
The BC Recall and Initiative Act doesn't have a pre-referendum, pre-initiative or pre-recall period.
Not only is there no pre-campaign period in local elections where fixed election dates were in place long before 2001, there's also no limit on spending by candidates or third parties. Zilch.
Maybe before the BC government went to the Court of Appeal it would have been a better idea to go back to the drawing board to draft legislation that is consistent across all elections and referendums and with rules that are not so convoluted as to require a PHD in Comparative Literature and Interpretive Techniques to figure out what they actually mean.
Dermod Travis is the executive director of IntegrityBC. IntegrityBC is an Intervenor in the BC government's court reference.