Issue advocacy and third parties in the United Kingdom and Canada.

• Author: Feasby, Colin

Mitigating the effect on the electoral process of uneven financing in election campaigns has been accepted in both Europe and Canada as a valid and pressing objective of election regulations. The means undertaken by the U.K. and Canada to achieve this objective, however, which include the regulation of third party issue advocacy, are constitutionally problematic. Issue advocacy, which refers to election-time advertising that is ostensibly non-partisan, is a common feature of the electoral landscape in the U.K. and Canada. The problem for election financing arises with respect to so-ca]lad sham issue advocacy. Sham issue advocacy is issue advocacy that is but a thinly disguised attack on, or promotion of, a candidate or political party. As such, sham issue advocacy threatens the integrity of political finance regulations because it destabilizes the equilibrium created by expenditure limits on candidates and political parties. The legislatures of the U.K. and Canada have attempted to deal with this problem through the extension of political finance legislation to third party issue advocacy simpliciter, as evidenced in the Political Parties, Elections and Referendums Act 2000 of the U.K. and in the Canada Elections Act.

This article begins by reviewing the egalitarian justification for limiting the election expenditures of third parties that was accepted by the European Court of Human Rights in Bowman v. United Kingdom and by the Supreme Court of Canada in Libman v. Quebec. The author then moves on to the more difficult problem of regulating issue advocacy, which was dealt with by the Alberta Queen's Bench in Harper v. Canada. The author draws on this case to argue that the extension of political finance legislation to third party issue advocacy is problematic in constitutional regimes that place a high value on political expression. Indeed, third party issue advocacy restrictions in the U.K. and Canada arguably contravene both the Human Rights Act 1998 and the Canadian Charter of Rights and Freedoms and cannot be remedied by judicial interpretation. The author concludes by suggesting viable issue advocacy regulations that are both effective and consistent with the legal protections of political expression in the U.K. and Canada.

L'attenuation des effets du financement inegal des campagnes electorales sur le processus electoral est vu comme un objectif valide et urgent de reglementation tant en Europe qu'au Canada. Cependant, les moyens utilises au Royaume-Uni et au Canada pour atteindre cet objecfif, tels que le controle legislatif des campagnes faites par des tiers sur des enjeux politiques et sociaux particuliers (third party issue advocacy), sont problematiques sur le plan constitutionnel. Ces << campagnes d'enjeux >>, qui referent a la publicite electorale d'apparence non partisane, sont un aspect commun du paysage electoral du Royaume-Uni et du Canada. Le probleme se pose cependant en situation de << fausse >> campagne d'enjeux (sham issue advocacy). La fausse campagne d'enjeux constitue une maniere subtile et deguisee d'attaquer ou de promouvoir, selon le cas, un candidat ou un parti politique. A ce titre, la fausse campagne d'enjeux menace l'integrite du controle des finances politiques car elle destabilise l'equilibre cree par les limites de depenses admises pour les candidats et les partis politiques en periode electorale. Les legislatures du Royaume-Uni et du Canada ont tente de traiter ce probleme en etendant le controle legislatif des finances politiques aux tiers impliques dans les campagnes d'enjeux, comme en font foi le Political Parties, Elections and Referendum Act 2093 (R.-U.) et la Loi electorale du Canada.

Cet article examine d'abord la justification egalitaire elaboree par la Cour europeenne des droits de l'homme dens la decision Bowman c. Royaume-Uni, puis par ha Cour supreme du Canada dens la decision Libman c. Quebec, pour limiter les depenses des tiers en cours de campagne electorale. L'auteur aborde ensuite le probleme plus difficile de la reglementation des campagnes d'enjeux telle que soulevee par la Cour du Banc de la Reine de l'Alberta dans l'arret Harper v. Canada. L'auteur's attarde sur cet arret pour demontrer que l'extension da controle legislatif des finances politiques aux tiers impliques dans les campagnes d'enjeux est problemalique pour has regimes constitutionnels accordant ure grande importance a l'expression politique. En effet, l'auteur affirme que ces restrictions legislatives violent a la fois le Human Rights Act 1998 (R.-U.) et la Charte canadienne des droits et libertes, et ne peuvent etre temperees par une interpretation juridiciaire. L'auteur conclut en suggerant certains moyens de reglementer les campagnes d'enjeux d'une maniere qui serait a la fois efficace et consistante avec les protections legales de l'expression politique au Royaume-Uni et au Canada.

Introduction I. Regulating Third Party Issue Advocacy A. The Argument for Regulating Third Party Election Spending B. Issue Advocacy II. Judicial Consideration of Third Party Limits and Legislative Responses A. Bowman v. United Kingdom B. The Lortie Commission and Libman v. Quebec C. U.K. and Canadian Legislation 1. The Neill Committee and the PPERA 2. The Canada Elections Act III. Are the PPERA and the Canada Elections Act Overbroad? A. Harper v. Canada B. Overbreadth in the U.K. and Canada 1. Overbreadth Theory and Doctrine 2. Interpreting the Breadth of the PPERA and the Canada Elections Act a. Vagueness b. Breadth of the PPERA c. Breadth of the Canada Elections Act IV. Fixing the Issue Advocacy Problem A. Less Drastic Approaches to Issue Advocacy B. Judicial Remedies C. Constitutional Dialogue and the Design of Legislative Sequels Conclusion Postscript Introduction

Opponents of the wholesale importation of U.S. political finance jurisprudence into the U.K. and Canada welcomed the recent decisions of the European Court of Human Rights ("European Court") and the Supreme Court of Canada in Bowman v. United Kingdom and Libman v. Quebec, respectively. (1) Bowman and Libman signalled that, unlike what was determined under the First Amendment of the U.S. Constitution, (2) mitigation of the effect of uneven financing is a constitutionally valid objective of election regulations in Europe and Canada. The resolution of this fundamental question is clearly important. Just as important, however, are the constitutional questions regarding the regulation of political finance raised by amendments to U.K. and Canadian electoral law following Bowman and Libman. Both the U.K. and Canadian Parliaments interpreted Bowman and Libman, respectively, as broad mandates to regulate political finances, including the finances of third parties--individuals and independent groups--who participate in political debate. The Political Parties, Elections, and Referendums Act 2000 (3) of the U.K. and the Canada Elections Act (4) extend the application of political finance controls from third party election communications to third party issue advocacy. Third party issue advocacy can be described as ostensibly non-partisan, paid communication concerning issues important to the third party during an election campaign. The regulation of third party issue advocacy marks a significant departure from previous approaches to political finance regulation in the U.K. and Canada.

The problem of issue advocacy has not grabbed public attention in the U.K. and Canada the way that it has in the U.S. Issue advocacy is best known as one of the great bugbears of U.S. political finance legislation. Pure issue advocacy--paid communication concerned with public issues and bearing no connection to an election--has not been the problem. Rather, the problem is sham issue advocacy, which, as the name suggests, is thinly veiled election advertising. (5) During the 1990s, massive amounts of unregulated money were channelled into issue advocacy, making a mockery of U.S. political finance controls. The issue advocacy loophole permitted political parties and independent groups to communicate with the electorate without being subject to political finance disclosure obligations so long as they stopped short of explicitly advocating the election or defeat of a clearly identified candidate. To fit within the issue advocacy loophole, political advertisements used techniques that included oblique references to candidates, implicit or coded criticism of candidates, and exhortations to act for or against candidates by means other than voting. The recently adopted Bipartisan Campaign Reform Act of 2002 (6) closed the issue advocacy loophole; a constitutional challenge, however, is already underway. (7)

While sham issue advocacy is more pervasive in the U.S. than in the U.K. or Canada, it is not just an American phenomenon. Rather, sham issue advocacy is endemic to countries that have political finance legislation that draws distinctions between political communications and election communications. Sham issue advocacy is the response of determined political actors to the regulation of election communications. Indeed, such ambiguous, coded, and implicit election advertisements are also used in the U.K. and Canada to circumvent political finance controls. Consider the following example, sponsored by the Grand Council of the Crees and published in The Globe and Mail two days before the 2000 federal election. While it undoubtedly solicits support for the Liberal Party, it is cloaked in terms that try to suggest that its aim is simply to increase the electoral participation of aboriginal citizens:

I Encourage Aboriginal Citizens to Vote in the Federal Election

Jean Chretien's Liberal Platform

1. continue to work with aboriginal peoples to address the economic and social problems they face;

2. promote aboriginal languages;

3. build and strengthen relations with aboriginal peoples;

4. promote aboriginal economic skills development and prosperous aboriginal economies.

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