January 2001
Campaign Spending Limits Too Limiting
Fairness is a word that short-circuits logic and absolves the user from having to make a case based on rational arguments and facts. In November of 2000, eight of nine Supreme Court justices showed that the F-word has fused their mental wiring.
The case in question was the National Citizens' Coalition's challenge to Ottawa's Bill C-2, which puts severe limits on what independent groups can spend during elections to make their views known. For complex reasons, the case was tried in October in the Alberta Court of Queen's Bench where the Justice made a temporary ruling and called an injunction, which suspended these spending limits on the grounds that the government had not produced a shred of evidence that allowing citizens to advertise as they wished during elections harmed the public interest.
The Supreme Court nixed this judge's ruling on the grounds that he had been too worried about the Charter of Rights and Freedoms' guarantee of free speech and had not seen the importance of letting government "regulate" expression "in order to permit all voices during an election to be heard fairly."
No, we are not talking about a group of Soviet-era Marxist thinkers gathered around the samovar to devise arguments for why the proletariat need restrictions on speech to keep society free and safe. This is the Supreme Court of Canada, regurgitating arguments it has lapped up from the Attorney General. The intellectual pablum he served the justices was concocted in the early 1990s by the Royal Commission on Electoral Reform and Party Financing. Brian Mulroney gave the Commission $20 million dollars to figure out arguments for squelching free speech during elections. Lacking any evidence that free speech causes harm, the Commission dreamt up something they called the "principle of fairness" and gave it some pizzazz by tacking it onto American legal scholar Ronald Dworkin's notion that allowing some citizens to spend more to express their views during elections than other citizens can spend violates the principle of one-person-one-vote.
Real evidence on the importance of free speech came in the Alberta courtroom from a director of Environment Voters. The views of this man, who works on the front lines of democracy, were that Charter rights are not porcelain dolls, but robust tools that citizens' groups use to get their points across.
Environment Voters does not get its contributions from moustache-twirling capitalists eager to bamboozle voters with the power of "big money." It is one of hundreds of activist groups in Canada that must hustle to raise many small donations. Saying that in the interests of fairness we should restrict groups that hustle hardest to get donations is like saying that the young Guy Lafleur should not have been allowed to sneak into the rink at 4:00 in the morning when he was honing his skills beyond those of his peers.
Inequality of election spending is not unfair; it simply reflects the fact that there are good and bad political ideas. A citizens' group must be committed to an idea, work out its implications, convince others to support the idea, use that support to further hone their idea, and so forth, in an incremental process that carries their plan above others and reveals its worth to the general public. Inequality in resources is a benign by-product of the jostle between interest groups to advance their views.
The claim that millionaires or rich corporations can dig into their pockets to mislead the electorate with slick advertising has no basis in fact. In the 1992 Charlottetown Referendum, the "Yes" side, backed by corporate interests, outspent the "No" side by ten to one and lost. Money by itself does not buy votes. This may explain why the government's expert witnesses in the Alberta court case were unable to provide examples of instances where spending by independent groups had had an "undue influence," either on voters or on politicians. As the sole dissenting voice on the Supreme Court, Justice Major summed it up: the government offered not a "scintilla" of evidence that allowing independent groups to spend freely in this election would cause harm. All the government could summon was the claim that "suspending spending limits would result in unfairness."
Logical arguments buttressed by facts do not seem to matter to those who use the F-word. And here lies the danger—not just to our freedom of speech, but to all intelligent attempts to reform government. A politician only has to say that two-tier health care is "unfair" in order to justify doing nothing about our crumbling hospitals and telescoping waiting lists. Just say that a flat tax is "unfair" and you can spend the rest of your speech making jokes about your opponent’s wetsuit, without having to address arguments and facts that Nobel Prize winners have presented in support of the flat tax.
We can perhaps tolerate some politicians structuring their arguments with the precise outline of an amoeba, but our Supreme Court should be much clearer than that. There is a reason we call the nine men and women of the highest court Justices and not Fairnesses. Their task is to tie themselves to the mast of reason and keep us off the rocks by ignoring the siren song of fairness.
Filip Palda is Professor at l'École Nationale d’Administration Publique in Montreal, and Senior Fellow of The Fraser Institute. He received his Ph.D. in Economics from the University of Chicago.
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