"Third parties" and democracy 2.0.

• Author: Sirota, Leonid

Although the Supreme Court of Canada has described freedom of political, and especially electoral, debate as the most important aspect of the protection of freedom of expression in Canada, no debate in Canadian society is so regulated as that which takes place during an electoral campaign. Parliament has set up--and the Supreme Court has embraced--an "egalitarian model" of elections, under which the amount of money participants in that debate can spend to make their views heard is strictly limited. "Third parties"--those participants in pre-electoral debate who are neither political parties nor candidates for office--are subject to especially strict expense limits. In addition to limiting the role of money in politics, this regulatory approach was intended to put political parties front and centre at election time.

This article argues that changes since the development of the "egalitarian model" have undermined the assumptions behind it and necessitate its re-examination. On the one hand, since the 1970s, political parties have been increasingly abandoning their role as essential suppliers in the marketplace of ideas to the actors of civil society, such as NGOs, unions, and social movements. On the other hand, over the last few years, the development of new communication technologies and business models associated with "Web 2.0" has allowed those who wish to take part in pre-electoral debate to do so at minimal or no cost. This separation of spending and speech means that the current framework for regulating the pre-electoral participation of third parties is no longer sufficient to maintain political parties' privileged position in pre-electoral debate. While the current regulatory framework may still have benefits in limiting (the appearance of) corruption that can result from the excessive influence of money on the political process, any attempts to expand it to limit the online participation of third parties must be resisted.

Bien que la Cour supreme du Canada ait decrit la liberte du debat politique, et surtout electoral, comme etant l'aspect le plus important de la protection de la liberte d'expression au Canada, aucun debat dans la societe canadienne n'est aussi regiemente que celui qui accompagne une Campagne electorale. Le Parlement a mis en place, et la Cour supreme a enterine, un > qui limite strictement les depenses que peuvent encourir les participants a ce debat afin de faire entendre leur point de vue. Les >--les participants au debat pre-electoral qui ne sont ni des partis politiques ni des candidats--sont assujettis a des limites particulierement severes. En plus de limiter le role de Targent en politique, cette approche reglementaire devait placer les partis politiques sur le devant de la scene pre-electorale.

Cet article soutient que les changements survenus depuis le developpement du > ont mine les presuppositions qui le sous-tendent, et en rendent necessaire le reexamen. D'une part, depuis les annees 1970, les partis politiques delaissent de plus en plus leur role de fournisseurs essentiels dans le marche des idees au profit des participants de la societe civile, tels les ONG, les syndicats et les mouvements sociaux. D'autre part, ces dernieres annees, le developpement de nouvelles technologies de communication et modeles d'entreprises associes au > a permis a ceux qui souhaitent participer au debat pre-electoral de le faire a cout minime ou nul. Cette separation des depenses et du discours fait en sorte que le cadre actuel de reglementation de la participation electorale des > ne suffit plus pour preserver la position privilegiee des partis politiques dans le debat pre-electoral. Bien que le cadre reglementaire actuel puisse encore presenter des avantages pour la reduction de la corruption reelle ou apparente, qui peut resulter de l'influence excessive de l'argent sur le processus politique, il faudrait resister a toute tentative de Tetendre en vue de limiter la participation en ligne des tiers.

Introduction I. The Supreme Court and Electoral Debate A. Libman B. Harper II. The "Egabtarian Model" of Elections III. Egalitarian Elections and Party Democracy: Who Gets to Play on a Level Field? IV. Audience Democracy and the Egalitarian Model A. From Party Democracy to Audience Democracy B. Canada as cm Audience Democracy C. The Egalitarian Model and Audience Democracy V. The Separation of Third-Party Participation VI. The Future of Third-Party Participation Conclusion Introduction

The electoral process, parliamentary institutions, and freedom of expression operate in a curiously complex relationship in Canadian constitutional law. Well before the entrenchment of the Canadian Charter of Rights and Freedoms, (1) F.R. Scott was able to claim that "[s]o long as the word 'parliament' remains in the text of the constitution, there is a bill of rights." (2) What made such a claim possible, if perhaps optimistic, were the statements of some of the judges of the Supreme Court of Canada, to the effect that the existence of a national legislature meant that freedom of speech was also a national, and not a merely provincial matter. (3) In a subsequent case, Justice Abbott would insist that the constitutional and legislative provisions instituting elections for Parliament necessarily imply "the right of candidates for Parliament or for a Legislature, and of citizens generally, to explain, criticize, debate and discuss in the freest possible manner such matters as the qualifications, the policies, and the political, economic and social principles advocated by such candidates or by the political parties or groups of which they may be members." (4) According to Justice Abbott, this right could not be abrogated--either by provincial legislatures or even by Parliament itself. (5) Yet the free discussion so essential to the existence of democracy and of parliamentary institutions is at no point so constrained as during electoral campaigns. No debate in Canadian society is so regulated as the one at the heart of our parliamentary democracy and thus of the protection of the freedom of expression.

This regulation of pre-electoral (6) debate has taken many forms. For example, Parliament restricts the amount of money candidates and parties can spend during election campaigns. (7) Parliament requires broadcasters to provide candidates and parties with airtime, some of it free of charge. (8)

It prohibits the dissemination of election advertising on election day. (9) It imposes detailed conditions on the publication of the results of opinion polls (10)--and attempted to prohibit their publication altogether in the three days preceding an election, before the Supreme Court declared this prohibition unconstitutional. (11) None of these restrictions on the ways in which political parties and candidates, as well as their records and platforms, can be discussed apply outside of the immediate pre-election period.

Yet another important restriction on political debate that only applies during electoral campaigns concerns "third parties": individuals who are not candidates for office and groups or organizations that are not political parties. (12) Parliament limited their expenses to $150,000 during an election campaign, of which no more than $3,000 may be spent on supporting or opposing a candidate in a single electoral district. (13) A permanent restriction on individuals or civil society groups wishing to speak out--and wishing to spend their money on speaking out--on political issues, parties, or candidates would surely be considered draconian and incompatible with our right "to ... debate and discuss in the freest possible manner" on these matters. (14) But Parliament has thought it necessary to restrict third parties' participation in the political debate during election campaigns since the 1970s. (15) In addition, the Supreme Court initially upheld the principle of third-party spending restrictions (16) and, subsequently, the specific scheme enacted by Parliament in the CEA. (17)

My purpose in this article is to explore the assumptions underlying these decisions and the ways in which (more or less) recent and ongoing changes are undermining these assumptions, thus potentially destabilizing the CEA's framework for regulating third-party participation in preelectoral debate. I begin, in Part I, by reviewing the Supreme Court's two major decisions on third-party participation, Libman and Harper. In Part II, I describe in more detail the "egalitarian model of elections ... premised on the notion that individuals should have an equal opportunity to participate in the electoral process" (18) without regard to wealth, which the CEA and these decisions embrace. In Part III, I explore the assumptions that the CEA and the Supreme Court make about the nature of the political process and the central role that political parties play in it. Then, in Part IV, I describe the changes that have occurred in politics since the framework for regulating third-party participation embodied in the CEA was first conceived. I illustrate the effects of these changes by using the 2011 federal election as an example and show that the assumptions behind the CEAs framework are no longer valid. This challenges the privileged position of political parties in pre-electoral debate. In Part V, I focus on another, more recent change that I describe as the separation of spending and speech: the emergence of new technologies and business models, in particular those associated with "Web 2.0"--social networks, blogs, video sharing services, and the like--which make it possible for third parties to communicate with large numbers of voters without spending much, if any, money. Finally, in Part VI, I explore the implications of these changes for regulating third-party participation in pre-electoral debates. I conclude that what might be called "electoral campaigning 2.0" (19) does not, in itself, require radical changes to the current legal...