Could the Liberals’ election law reform throw a leash on the ‘permanent campaign’?

The law hasn’t caught up yet to the way politics gets done in the 21st century. But Bill C-76 — the Liberal government’s new package of changes to federal election laws — could be a small step toward regulating the “permanent campaign” that took over Canadian public life in the past decade.

Whether it does will depend in part on whether the bill can outlive a constitutional challenge.

With the Election Modernization Act, the Liberal government proposes to regulate political advertising during a new pre-writ period that would begin on June 30 in years with a fixed election date.

Between June 30 and the start of the official campaign period, political parties would be limited under the new law to spending $1.5 million on advertising. So-called ‘third-party organizations’ would see their ad spending capped at $1 million.

It’s that limit on third parties — advocacy organizations and groups that come together to run political campaigns — that’s most likely to be challenged in court.

Similar legislation in Ontario is being fought by a coalition of trade unions arguing their charter rights to free expression and association are being curbed. And pre-election rules in British Columbia have been struck down twice already — in 2009, after a challenge by unions, and then in 2012, after a reference by the B.C. government.

At issue here is what the Supreme Court once described as the “egalitarian model” of Canadian elections — the “level playing field” that regulations on election spending are supposed to maintain.

“You basically can’t have an egalitarian model unless you restrict pre-writ speech,” said Michael Pal, a law professor at the University of Ottawa who has written about how the permanent campaign threatens the established political system and advised the Ontario government on its legislation.

Federal spending limits for political parties have been in place since 1974, but only during the official campaign period — between when Parliament is dissolved and a new vote is held.

Successive attempts to regulate third-party spending during federal campaigns were struck down in court until, in 2004, the Supreme Court ruled against a challenge mounted by Stephen Harper, the future prime minister, who was then president of the National Citizens Coalition.

In that case, the court found the restrictions on third-party advertising did infringe on the right to freedom of expression, but that the infringement was justified.

“In the absence of spending limits,” the majority wrote in a 6-3 ruling, “it is possible for the affluent or a number of persons pooling their resources and acting in concert to dominate the political discourse, depriving their opponents of a reasonable opportunity to speak and be heard, and undermining the voter’s ability to be adequately informed of all views.”

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