Submission to the Standing Committee on General Government re: Bill 201, the Election Finances Statute Law Amendment  Act, 2016         

August 11, 2016 

    Elementary Teachers’ Federation of Ontario

     

 

INTRODUCTION The Elementary Teachers’ Federation of Ontario (ETFO) represents 78,000 teachers and other educators working in Ontario’s public elementary schools. The Federation appreciates the opportunity to participate in the legislative hearings on Bill 201, the Election Finances Statute Law Amendment Act, 2016. ETFO understands the importance of reviewing election finance laws to ensure the system is fair and transparent and builds public confidence in the integrity of the electoral process. These goals have been the focus of various federal-level reviews, including the 1964 Barbeau Committee on Election Expenses, the 1991 Royal Commission on Electoral Reform and Party Finance (the Lortie Commission), and Harper v. Canada (Attorney General) 2004, the Supreme Court decision on third party advertising. ETFO views its participation in provincial elections and public advocacy campaigns as a function of the organization’s commitment to participating in and supporting the democratic process. Through engagement in elections, ETFO aims to represent the best interest of our members and to bring forward their views and concerns regarding political parties’ policies and election platforms. It is in the public interest for voters to understand the implications of party policies from the viewpoint of professionals who deliver publiclyfunded programs. Throughout its participation in political party finance and third party advertising, ETFO has operated within the legal framework established by federal and provincial law, including fulfilling the full reporting requirements for public accountability and transparency. The organization is also registered on the Ontario lobbyist registry and provides full disclosure of its Queen’s Park meetings and receipt of funds that, from time to time, support a professional learning partnership with the Ministry of Education. In this submission, ETFO will speak to three aspects of Bill 201: banning union and corporate political donations, reducing political contribution limits, and limiting third party political advertising. 1  Elementary Teachers’ Federation of Ontario   

 

POLITICAL DONATIONS Banning Corporate and Union Donations Ever since ETFO began contributing to political parties in the 1990s, the organization has done so as a way to support the viability of political parties that promote positive education policies and support the rights of unions and free collective bargaining. ETFO does not view political donations as a vehicle to ensure access to political parties; the Federation has focused on promoting its issues through lobbying at Queen’s Park and provincial-level discussions with the government related to negotiating collective agreements, now formalized through provincial education bargaining legislation. All the main provincial parties hold fundraising events to generate income that allows them to engage in the costly exercise of elections and operate between elections. Bill 201 is a response to the perception that certain interests, through political contributions and fundraising events, have undue access to political parties and thereby exert undue influence, particularly through fundraising events held by the governing party and its MPPs. ETFO is not opposed to the proposed banning of corporate and union political contributions as long as the proposals under Bill 201 provide an alternative that gives political parties a level playing field in terms of party finance and ensures they remain viable as they transition to greater reliance on individual donations.

Per-Vote Subsidy The proposal, through section 26 of the bill, to provide a per-vote subsidy (PVS), a publicly-funded quarterly allowance based on the number of votes a party garnered in the most recent general election, combined with the ongoing opportunity for parties to solicit individual donations, appears to be a positive alternative. This model was introduced at the federal level in 2004 but phased out in 2015 through legislation passed in 2011. At the federal level, it provided a boost to smaller parties including the Green Party that, in past elections, had exceeded the threshold of winning five per cent of total votes cast, but was unsuccessful in winning seats. Through access to the PVS allowance, the Green Party had the resources to elect its first member of parliament in 2011. 2  Elementary Teachers’ Federation of Ontario   

 

The PVS model was designed to create a relatively level playing field among political parties and to avoid a reliance on individual donations that could lead to pressure to remove donation caps and create a situation where parties and candidates rely on political donations from the most affluent citizens to fund their campaigns. This is the path taken by the American political system and one Canada and Ontario should avoid. In 2011, the majority Conservative federal government passed amendments to the Canada Elections Act that discontinued the PVS quarterly allowances effective April 2015. The policy change is perceived to have advantaged the ruling Conservative Party that developed a much broader individual donor base since the introduction of the subsidy program. The NDP was most adversely affected by the change, experiencing a 40 per cent reduction in funding, compared to about 25 per cent for both the Liberals and Conservatives (Aucoin and Bakvis, 2015). Should the PVS model be adopted in Ontario, cancelling the public subsidy could similarly be used by a governing party to its political advantage.

Contribution Limits Section 12 of Bill 201 proposes lowering the annual individual donation to Ontario political parties to $1,550 and to limit total annual donations to riding associations of each registered party or individual candidates in an election or by-election to $3,100. This means that, in a year when no elections are held, individuals may contribute up to $4,650; in a general election year, individuals may donate an additional $3,100 to candidates of a single party for an annual total of $7,750; and in a year during which there is a general election and a by-election period, an individual donor could contribute an additional $3,100 per single party for a potential total of $10,850 per registered party. Even with the tax credits available for political donations, not many Ontarians likely have the financial capacity to donate up to the limits set forth in Bill 201. This means that political parties could become overly reliant on donations from Ontario’s most affluent citizens, which would influence party policies and their efforts to target and engage a

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certain voter demographic. This would not be in the overall best interests of Ontarians and would run counter to the underlying principles of the PVS model. As long as the PVS quarterly allowance is in place, there should be a lower donation limit for individual donations. Democracy Watch, the national advocacy organization for democratic reform, recommends an individual limit of $100 with an additional $100 combined total to each party’s riding associations or candidates during an election year, similar to what is in place in Quebec. These limits may be insufficient, however, to ensure the financial viability of Ontario provincial parties. The current federal contribution limits (Canada Elections Act, subsection 367 (1)) during a calendar year are $1,500 to a registered political party and $1,500 to riding associations, nomination contestants, and candidates of a registered party and to a candidate for an election who is not a candidate of a registered party. ETFO believes these limits are reasonable and should be adopted through amendments to Bill 201. Recommendation: That section 12 be deleted and replaced with provisions that: a) limit individual donations to a registered party to $1,500; and b) limit individual donations to riding associations, nomination contestants, party candidates of a registered party and candidates who are not candidates of a registered party to $1,500. POLITICAL ADVERTISING ETFO understands the concerns regarding the current lack of expenditure limits on third party advertising during the election period. The Federation does not oppose the establishment of expenditure limits, but does have concerns with the limits proposed in Bill 201. More importantly, ETFO has serious concerns regarding the legislation’s proposals to limit third party advertising outside of the election campaign period and the proposed definition for “political advertising.”

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Definition of “Political Advertising” The proposed definition of “political advertising” outlined in subsection 1(4) is modelled after language in the federal legislation that governs third party election advertising. It differs significantly, however, in the fact that it replaces the federal “election advertising” terminology (Section 319, Elections Canada Act) with “political advertising” because the bill proposes to extend limitations on third parties to the six-month period prior to the election campaign period that begins with the issuing of the election writ. The definition, which includes the phrase: “and includes advertising that takes a position on an issue with which a registered party or candidate is associated” is highly problematic and threatens to infringe the right of organizations like ETFO to engage in public advocacy campaigns which contribute to the public discourse on important issues. In 2014, leading up to the June 2014 election period – within six months prior to the writ being issued – ETFO sponsored a public campaign on the importance of smaller classes in elementary grades and providing greater support for children with special needs. These issues are central to the Building Better Schools education agenda that ETFO launched in 2010 and has been promoting since then through public campaigns and lobbying at Queen’s Park. Given the proposed definition for political advertising, such a campaign could be considered to fall within the definition if one or more political parties were to take any position on the issue of smaller classes or supports for students with special needs. This would mean the campaign would be subject to the proposed $600,000 total expenditure limit during the six-month pre-writ period. Such a limitation is another unreasonable infringement on the right of organizations like ETFO to freedom of expression. The right of citizens to discuss and debate ideas is a cornerstone of any democratic society; this right extends to third parties such as ETFO. The proposed definition of “political advertising” combined with the expenditure limits for the pre-election period raise concerns about implications for the rights of freedom of expression, including political speech, outlined in the Canadian Charter of Rights and Freedoms.

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A Supreme Court decision, Harper v. Canada (Attorney General) [2004], upheld the constitutionality of changes to the Elections Canada Act that places limits on third party advertising during the election period. In responding to the two dissenting judges who raised concerns that the expenditure limits would prevent third parties from effectively communicating their views, the majority of the Court justified the limits by pointing to the fact that such third parties had full reign to sponsor advocacy campaigns prior to the actual election period: “Respectfully, this ignores the fact that third party advertising is not restricted prior to the commencement of the election period. Outside this time, the limits on third party intervention in political life do not exist. Any group or individual may freely spend money or advertise to make its views known or to persuade others. In fact, many of these groups are not formed for the purpose of an election but are already organized and have a continued presence, mandate and political view which they promote.” (Paragraph 112) The bill’s proposed definition for political advertising is also modeled after federal legislation in its attempt to capture a full spectrum of communication vehicles: “Political advertising…means advertising in any broadcast, print, electronic or other medium with the purpose of promoting or opposing any registered party or the election of a registered candidate and includes advertising that takes a position on an issue with which a registered party or candidate is associated…”

Right to communicate with members  ETFO is seeking clarification as to whether the above definition is designed to prevent member-based organizations from communicating with their members through e-mail or from communicating election messages and content through the organization’s website, Facebook and Twitter accounts. During the 2015 federal election, Elections Canada determined that such electronic communication was not considered election advertising. If this is not the intent of Bill 201, then ETFO recommends that subsection 1(4) be amended to explicitly exclude such communications from the definition of political advertising.

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The subsection 1(4) list of communications that do not fall within the definition of political advertising includes “making telephone calls to electors only to encourage them to vote.” If this means that ETFO and similar organizations can only contact their members by telephone during an election to encourage their members to vote but not encourage them to consider voting for a particular candidate, the Federation has further concerns about the bill’s impact on its rights to communicate freely with its members. Given the likelihood that the definition of “political advertising” in Bill 201 could be the subject of a Charter challenge, ETFO recommends amending subsection 1(4) by deleting reference to “political advertising” in the bill and replacing it with the Canada Elections Act terminology of “election advertising” and deleting the new subsection 37.10.1(2) to the Elections Finance Act as proposed through section 40 of the bill. Recommendations: 

That subsection 1(4) be amended by deleting reference to “political advertising” in the bill and replacing it with the Canada Elections Act terminology of “election advertising.”

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That subsection 1(4) be amended to stipulate that third party transmission of election communications through their organizational website and Facebook and Twitter accounts is not included in the definition of “political” or “election” advertising.

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That subsection 1(4) be amended to stipulate that the making of telephone calls by third parties to their members during the election period is not included in the definition of “political” or “election” advertising.

THIRD PARTY SPENDING LIMITS Bill 201 proposes to limit third party expenditure during any election period – a general or by-election – to spending $4,000 in a specific riding and $100,000 in total, lower than the provisions of the Canada Elections Act, which limit third party advertisers to a total expenditure of $150,000 during a federal election campaign. ETFO does not object to the principle of spending limits for election advertising, but the limits proposed in the bill would effectively prevent the Federation from participating in communications that would 7  Elementary Teachers’ Federation of Ontario   

 

successfully reach and engage voters. While there is no absolute right under the Charter, expenditure limits should allow for a reasonable level of public communication. The expenditure limits should be increased significantly, although not above the limit set for political parties. Recommendation: 

That section 40 be amended by increasing the third party expenditure limits outlined in the new subsections 37.10.1 (1) and (2) that govern third party advertising during an election period and that the limits not exceed those set for political parties.

In terms of political advertising during the six-month pre-election period, the bill proposes an expenditure limit of $24,000 in any riding and a total limit of $600,000. ETFO does not support limiting third party advertising outside of the election period that commences with issuance of an election writ. As mentioned above, ETFO proposes retaining the current definition of “third party advertising” in the Election Finances Act. This would eliminate the need for setting expenditure limits outside of the official election campaign period. Recommendation: 

That section 40 be amended by deleting the proposed new subsection 37.10.1(2) to the Elections Finance Act that would limit third party advertising during the six-month period prior to the issuing of the writ for a general election.

CONCLUSION ETFO believes that Bill 201 offers a timely opportunity to review provincial election finances law. To foster greater public confidence, the Federation supports the banning of union and corporate political donations as long as there are alternatives for ensuring the viability of political parties. The per-vote subsidy proposal, combined with the continuing opportunity for individual donations supported by provincial tax credits, forms the basis for a fairer electoral finance system.

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To ensure that wealthy citizens don’t have undue influence on political parties and their policies through the political contribution process, ETFO urges the committee to bring forward amendments to the bill that would lower total individual contribution limits by adopting the contribution limits currently in place at the federal level.

ETFO has serious concerns regarding the proposals to severely limit third party advertising during election periods and to extend expenditure limits to the pre-election period. To protect the primacy of political parties, ETFO supports the concept of reasonable expenditure limits during an election period. The limits proposed in Bill 201 do not meet that test. Beyond the election period, any move to limit the rights of third parties to wage public advocacy campaigns and to communicate freely with their members would seriously undermine their Charter right to free expression. The provisions aimed at limiting third party advertising prior to the election campaign period should be withdrawn from the bill.  

 

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RECOMMENDATIONS 1. That subsection 1(4) be amended by deleting reference to “political advertising” in the bill and replacing it with the Canada Elections Act terminology of “election advertising.” 2. That subsection 1(4) be amended to stipulate that third party transmission of election communications through their organizational website and Facebook and Twitter accounts is not included in the definition of “political” or “election” advertising. 3. That subsection 1(4) be amended to stipulate that the making of telephone calls by third parties to their members during the election period is not included in the definition of “political” or “election” advertising. 4. That section 12 be deleted and replaced with provisions that: a) limit individual donations to a registered party to $1,500; and b) limit individual donations to riding associations, nomination contestants, party candidates of a registered party and candidates who are not candidates of a registered party to $1,500. 5. That section 40 be amended by increasing the third party expenditure limits outlined in the new subsections 37.10.1 (1) and (2) that govern third party advertising during an election period and that the limits not exceed those set for political parties. 6. That section 40 be amended by deleting the proposed new subsection 37.10.1(2) to the Elections Finance Act that would limit third party advertising during the six-month period prior to the issuing of the writ for a general election.

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REFERENCES Aucoin, Peter (1993). “The Politics of Electoral Reform,” Canadian Parliamentary Review (Spring 1993). Aucoin, Peter (2005). Political Party and Campaign Financing in Canada. Washington, DC: OAS Unit for Promotion of Democracy. Aucoin, Peter and Herman Bakvis (2015). “Canadian Public Funding and the End of PerVote Subsidies” in Richard Johnston and Campbell Sharman eds. Parties and Party Systems: Structure and Content. Vancouver: UBC Press, pp. 221-241. Bakvis, Herman and Jennifer Smith (1997). “Third Party Advertising and Electoral Democracy: The Political Theory of the Alberta Court of Appeal in Somerville v. Canada (Attorney General) 1996. Canada Public Policy, XXIII, no. 2. Beange, Pauline (2016). “Party finance in Ontario: What kind of change?” Policy Options, June 2016. Canada Elections Act. Democracy Watch (2016). Submission to the Ontario Standing Committee on General Government regarding Bill 201, An Act to amend the Election Finances Act and the Taxation Act, 2007. Elections Finances Act. Griner, Steven and Daniel Zovatto eds. (2005). The Delicate Balance between Political Equity and Freedom of Expression: Political Party and Campaign Financing in Canada and the United States. Washington, DC: Organization of American States (OAS) Supreme Court of Canada (2004). Harper v. Canada (Attorney General).

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