The British Columbia government wants you to shut up during the next election.
That’s the message that emerges when you read between the lines of its proposed amendments to the Election Act.
Premier
Christy Clark claims she is trying to prevent Big Money from buying
provincial elections. Her government has reintroduced a controversial
measure to limit “third party election advertising” before the start of a
provincial election campaign.
But what the
premier doesn’t mention is that the Election Act requires third parties
to register with Elections BC before they are even allowed to speak up.
Given
the extremely broad definition of election advertising in the act, this
is a serious problem. Here is that definition (from section 228 of the
act): “the transmission to the public by any means, during the period
beginning 60 days before a campaign period and ending at the end of the
campaign period, 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 ...”
In other words, just about any
public communication on any provincial issue under the sun. Failure to
register as an “election advertising sponsor” means you will have
committed an offence, and will be liable to up to a year in jail and a
$10,000 fine.
It gets worse. You don’t have to
spend a single cent to be caught by a law that claims to be about
reducing the influence of Big Money.
According
to Elections BC’s website, “Election advertising sponsors must be
registered with the Chief Electoral Officer, even if the election
advertising they are conducting does not cost any money.”
This
law poses a real danger to engaged citizens and small organizations who
may spend a few dollars (or even no dollars) communicating with their
neighbours or the wider public. Want to put a sign in your window about
an issue you have an opinion about? Better register with Elections BC
first. A community organization wants to talk about its concerns on
Facebook? Register first.
Research we conducted with social movement groups after the 2009 provincial election found:
•
The prospect of being publicly labelled as a “third party advertising
sponsor” created anxiety for many non-profits, charities and other
organizations that are careful to remain non-partisan, with some simply
choosing to opt out of public engagement during the election entirely.
•
One in four of the groups that participated in our study self-censored
as a result of the rules. Six groups censored public communication
activities specifically to avoid having to register as advertising
sponsors. Others self-censored due to confusion and/or concerns about
the risks of inadvertently breaking the rules.
•
Most of the activities groups censored had little to do with commercial
advertising. For example, nine groups did not post new material on
their websites; four removed existing material from their websites; and
four refrained from issuing or endorsing a call for changes to
government policy.
•
Particularly troubling is the revelation that five groups avoided
commenting in the mainstream media due to confusion about the rules
(media commentary is one of a few exemptions from the definition of
advertising).
Other parts of Canada with
third-party spending limits don’t require registration until you spend
at least a minimum amount. Usually this minimum amount is $500; in
Alberta it is $1,000. Having a minimum spending threshold reduces the
risk to small groups or individuals who just want to speak out about an
issue that is important to them.
Without a
minimum threshold, in practice B.C.’s rules focus mainly on these small
spenders. Of the 232 organizations registered as third-party sponsors
during the 2009 B.C. election, more than half (59 per cent) spent less
than $500, and three quarters spent less than $3,000.
The
requirement to register before you spend a dime targets the involved,
active citizen that every democracy is supposed to be encouraging. And
it targets small organizations, many of which represent the least
powerful people in our society, whose voices are already marginalized.
At a time when voter participation is falling, this law is not only
unjustifiable, it is also profoundly destructive to democracy.
In
his 2010 report to the Legislature, the chief electoral officer noted
the problem of not having a minimum spending threshold given the
sweeping definition of election advertising. He suggested legislators
consider making changes. Apparently the government either forgot about
his report, or decided to ignore it.
In all
likelihood, the current rules are an unconstitutional restriction on
freedom of speech, and likely also of freedom of association.
Instead
of resurrecting the controversial “pre-campaign period,” the provincial
government should set a reasonable minimum registration threshold so
that the rules no longer target small spenders.
If
the government is unwilling to do so, then it should at least seek an
opinion from the B.C. Court of Appeal on the constitutionality of
requiring third parties to register before they can even speak up.
After all, the small spenders can’t afford to launch a costly court challenge.
Vincent
Gogolek is executive director of B.C.’s Freedom of Information and
Privacy Association, Shannon Daub is communications director with the
Canadian Centre for Policy Alternatives and Micheal Vonn is the B.C.
Civil Liberties Association’s policy director. Together they
co-published the 2010 study Election Chill Effect: The Impact of B.C.’s
New Third Party Advertising Rules on Social Movement Groups.
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